United States District Court, W.D. North Carolina, Charlotte Division
COGBURN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial review of
Plaintiff's Complaint under 28 U.S.C. § 1915(e).
(Doc. No. 1).
Plaintiff is a federal prisoner incarcerated at Fort Dix
Correctional Institution in Fort Dix, New Jersey. In this pro
se action, filed on a form used to bring prisoner civil
rights actions pursuant to 42 U.S.C. § 1983, Plaintiff
has named as Defendants “Bank of America Corporate
Center” and “Edna C. Rainey, ” identified
as a Bank of America employee. Plaintiff purports to bring the
following “cause of action” against Defendants:
“Forgery, fraud, unauthorized withdrawal, negligent,
harassment, ignoring restriction placed stop payment ordered.
The bank dishonestly suggested victim can collect the
unauthorized withdrawal himself. The Ohio court convicted and
ordered him to pay damage never paid a penny.” (Doc.
No. 1 at 3). Plaintiff appears to be complaining that, on an
unspecified date before 2010, Defendants allowed another
person to forge and cash fraudulent checks, withdrawing up to
more than $22, 000 of funds held in an account at Bank of
America belonging to Plaintiff. Plaintiff alleges the
following facts to support his claims:
Plaintiff Mr. Adane Kebede had opened an account with Bank of
America at Oakland, CA and had placed withdrawal restrictions
without proper identification. About or on May 26, 2006,
Kebede ordered stop payment on a check (copy of check
submitted to Oakland police dept. not available on
plaintiff's hand). The bank ignored I.D. requirement
restriction and stop order of the forged checks and
repeatedly asked me payment for overdraft 3 times and
consistently refused responsibility. Bank of America gave my
money away to a thief in the amount of $22450.00 by allowing
unauthorized checks [for] $20, 000.00, $250.00, $100 and
another $100 dollars to be cashed while I was in mental
hospital. Refused to stop payment orders $2000 cashiers
check. Continued threat against the real account holder Adene
Kebede. Law suits harassing and attempting him to destroy his
credit history, preventing him from dealing with other
financial institutions. All this for $55.00 [fifty five
dollars] overdraft unauthorized withdrawal the victim of
crime Adene Kebede from 2009-2011 at least sending him four
threatening letters for payment or else lawsuit. Such threat
and scare tactic is punishable up to $5, 000.00 dollars at
least by banking rule ($1, 500 for each overdraft payment
(Id. at 4). As relief, Plaintiff seeks the
The Bank reimburse victim of theft and forgery in the amount
of 22450.00 unauthorized checks, $5000.00, $1500.00 per
notice of overdraft payment demands and threat to sue victim.
Plaintiff and victim crime of forgery Kebede has been
suffering depression, stress, psychological difficulties.
Therefore prays for additional compensation for damages in
the amount of $250, 000.00 (two hundred fifty thousand
dollars) of which up to the account was insured for and any
other penalties the court deems necessary and required.
(Id. at 7).
STANDARD OF REVIEW
Plaintiff seeks to proceed in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). In its frivolity
review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded
upon clearly baseless factual contentions, such as fantastic
or delusional scenarios. Neitzke v. Williams, 490
U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must
be construed liberally. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the liberal construction
requirement will not permit a district court to ignore a
clear failure to allege facts in his Complaint which set
forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
Court will dismiss this action without prejudice for several
reasons. First, to the extent that Plaintiff is attempting to
bring a prisoner civil rights action through 42 U.S.C. §
1983, to state a claim under Section 1983, the plaintiff must
allege both a violation of a right or rights secured by the
Constitution and laws of the United States and that
the alleged deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42,
48 (1988). As a private bank, Bank of America and its
employees do not act under color of state law so as to be
liable under Section 1983. See, e.g., Lally v.
Crawford Cnty. Trust & Sav. Bank, 863 F.2d 612 (8th
Cir. 1988) (per curiam) (affirming the decision of a district
court dismissing a debtor's Section 1983 claim against
bank for lack of state action, where the debtor's only
claim was based on allegation that bank employee acted under
color of state law when he threatened to have the debtor put
in jail for account overcharge); Gibson v. Dixon,
579 F.2d 1071 (7th Cir. 1978) (per curiam) (a bank's use
of state statutory procedure for selling automobile after it
was repossessed by the bank does not constitute state action
under Section 1983). The Court notes, additionally, that
Plaintiff alleges no personal participation by Defendant
Rainey. Indeed, aside from being a named defendant in this
action, the Complaint does not otherwise mention Rainey in
the supporting facts. A letter attached as one of
Plaintiff's exhibits shows that Rainey sent Plaintiff a
letter in response to his communication to the bank regarding
the cashing of fraudulent checks, but nothing in the
Complaint states how Rainey's conduct violated any of
Plaintiff's federal or constitutional rights.
See (Doc. No. 1-1).
to the extent that Plaintiff is not intending to bring a
prisoner civil rights action under Section 1983,
Plaintiff's Complaint does not allege the existence of
any federal question at issue in this case. That is,
Plaintiff does not allege a violation of any specific federal
law in the Complaint that would give rise to federal question
jurisdiction in this Court under 28 U.S.C. § 1331.
Rather, Plaintiff's stated cause of action, in which he
purports to bring claims against Defendants for
“forgery, fraud, unauthorized withdrawal, negligence,
[and] harassment, ” sounds entirely in state law.
Plaintiff does not, however, allege diversity as a basis for
subject matter jurisdiction under 28 U.S.C. §
1332. In sum, the Court will dismiss this case,
without prejudice, for lack of subject matter jurisdiction
and because, to the extent that he is purporting to bring an
action through Section 1983, Defendants are private entities,
rather than acting under color of state law.