United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Plaintiff's Second Amended Complaint, (Doc. No.
se Plaintiff JoAnn James filed the instant action on
July 14, 2017. Plaintiff is no stranger to the Court, having
filed two other actions this year addressing the same matter.
A brief litigation history provides a helpful context for
screening instant case.
April 4, 2017, Plaintiff filed in case number
3:17-cv-223-RJC-DSC a complaint against Bank of America CEO
Brian Moynihan for the return of mortgage payments she
allegedly made on her deceased mother's house. She also
named as a Defendant the Department of Social Services in
Rockingham County, North Carolina. The Court dismissed the
case for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2) on May 2, 2017, because Plaintiff had not
alleged any facts linking the loss of the house to the
conduct of Defendant Moynihan or, more broadly, Bank of
America, failed to make any allegations against the
Department of Social Services in Rockingham County, North
Carolina, and did not alleged facts linking the loss of the
house to the conduct of that department, or anyone in it.
filed a second action on June 19, 2017, case number
3:17-cv-334-MOC-DSC, against Bank of America Financial
Specialist Ronald Tankamnerd, demanding that the Court compel
Bank of America to refund to her mortgage payments she made
while living in her mother's home, and alleging that the
bank had discriminated against her because she is a poor
white woman in refusing to refund the payments. The Court
dismissed the action on June 23, 2017, as frivolous under
1915(e)(2)(B)(i) and for failure to state a claim under
1915(e)(2)(B)(ii). See (3:17-334 Doc. No. 3). The
Court noted that it “knows of no federal or state law
that requires a bank to refund mortgage payments, even
gratuitous ones made by third parties, based on deterioration
of the relationship which engendered those payments by the
third party, ” that Plaintiff's allegation of
discrimination added no viability to that claim, and the only
possible remedy would be in an action against the bank
itself, rather than its employees, over which the Court would
lack diversity jurisdiction. (3:17-334 Doc. No. 3, pg. 3).
filed this, her third action seeking reimbursement for
mortgage payments that she allegedly paid on her mother's
house. The Complaint was dismissed on initial review on July
18, 2017 for failure to state a claim upon which relief can
be granted and for seeking damages against an immune
defendant. (Doc. No. 3).
Second Amended Complaint is now before the Court for initial
review. Plaintiff names as Defendants Bank of America CEO
Brian Moynihan and Bank of America Financial Specialist
Ronald Tankamnerd. Plaintiff alleges that her mother left
Plaintiff her home in her will but that Bank of America took
the home through fraud. Plaintiff appears to allege that she
and her mother were thrown out of the house. Plaintiff was
injured and her mother, who was taken to a nursing home, only
lived for 10 months without Plaintiff. Plaintiff asks that
the home be returned to her or for $14, 945.02 in damages.
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 “(i)
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). 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). 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).
Second Amended Complaint fails to state a claim for the same
reasons that the original Complaint was deficient. Plaintiff
has made no factual allegations whatsoever as to either
Tankmnerd or Moynihan beyond the conclusory allegation that
they took her home through mortgage fraud. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”);
see Fed. R. Civ. P. 8(a)(2) (a pleading must contain
a “short and plain statement of the claim showing that
the pleader is entitled to relief.”). Her conclusory
statement that she experienced financial losses with regards
to her mother's home is completely unsupported by factual
allegations demonstrating that these losses were attributable
to the Defendants. Thus, Plaintiff's allegations are not
sufficient to state a claim against either Defendant
Tankamnerd or Defendant Moynihan. Therefore, the Court will
dismiss Plaintiffs Second Amended Complaint.
has indicates that she is “not going to stop”
making filings before the Court until she receives the relief
she requests. (Doc. No. 17 at 5). Plaintiff is cautioned
that, if she continues to make frivolous or duplicative
pro se filings, the Court may impose sanctions.
See generally Fed. R. Civ. P. 11; 28 U.S.C. §