United States District Court, M.D. Alabama, Southern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER, UNITED STATES MAGISTRATE JUDGE
who is proceeding pro se, filed this 42 U.S.C.
§ 1983 action on October 12, 2017. Pursuant to this
Court's Order giving him an opportunity to amend (Doc.
8), Plaintiff filed an Amended Complaint. (Doc. 9). Plaintiff
names as Defendants the Commercial Bank of Ozark and
Commercial Bancshares of Ozark, Inc. (Doc. 9). The Court
understands Plaintiff to allege that the Defendants violated
his due process rights, the Truth in Lending Act (TILA) 15
U.S.C. § 1601 (1979) and the Fair Debt Collection
Practices Act, (FDCPA) 15 U.S.C. § 1692 when they
instituted foreclosure proceedings on his property located at
40 Bowden Street, Ariton, Alabama in state court in October,
2015. He claims that the state foreclosure proceedings were
unlawful and should be “set aside” by this
Court because the mortgage he gave on his property was void
since he provided rescission notices to Defendants in June
2010. (Doc. 9 at p. 5).
in his Amended Complaint, Plaintiff alleges that Defendants
have violated his Constitutional rights to due process
because he was not appraised of the October 15, 2015 state
court foreclosure hearing. (Doc. 9 at. pp. 5-6). He also
alleges that the state court foreclosure proceedings
instituted by Defendants violated TILA because in June 2010
he rescinded the terms of the mortgage which made the
mortgage null and void. (Doc. 9 at pp. 1-5 and 7-8). Further,
he alleges that the state foreclosure proceedings violated
FDCPA because Defendants' subsequent sale of the property
was unlawful since his June 2010 rescission notices nullified
the mortgage. (Doc. 9 at pp. 8-11). Plaintiff also alleges
state law claims for conversion and fraudulent
misrepresentation arising from the alleged unlawful
foreclosure proceedings. (Doc. 9 at pp. 9-13). The Amended
Complaint seeks declaratory and injunctive relief and money
damages. (Doc. 9 at pp. 5, 13).
February 6, 2018, this Court entered an Order granting
Plaintiff's application to proceed in forma
pauperis. (Doc. 7). In forma pauperis
proceedings are governed by 28 U.S.C. § 1915 which
requires this court to conduct a preliminary review of the
complaint to ensure the action is not “frivolous or
malicious, ” “fails to state a claim on which
relief can be granted, ” or “seeks monetary
relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2)(B).
Accordingly, the Court now conducts a review pursuant to 28
Discussion and Analysis
the Court must address whether it has subject matter
jurisdiction over Plaintiff's claims. See Mitchell v.
Brown & Williamson Tobacco Corp. 294 F.3d 1309, 1314
(11th Cir. 2002) (The court has an “independent
obligation” to determine whether it has jurisdiction.)
(Citations omitted). As Plaintiff proceeds pro se,
the court will liberally construe the allegations of his
complaint. See Alba v. Montford, 517 F.3d 1249, 1252
(11th Cir. 2008). Plaintiff alleges a violation of his
Fourteenth Amendment due process rights pursuant to 42 U.S.C.
§ 1983. Section 1983 provides a remedy when a person
acting under color of law deprives a plaintiff of a right,
privilege, or immunity secured by the Constitution, laws, or
treaties of the United States. See 42 U.S.C. §
1983. Plaintiff brings his due process claim
pursuant to § 1983 and brings causes of actions under
federal statutes TILA and FDCPA. Therefore, he arguably
invokes the Court's federal question jurisdiction
pursuant to 28 U.S.C. § 1331.
Prior Court Order Enjoining Plaintiff's Suits against the
Commercial Bank of Ozark
10, 2015, in a case previously filed in this Court, the Court
issued an Order finding that “Lorenzo Pearson . . . has
abused process by repeatedly removing cases to federal court
on the basis of arguments that are patently frivolous and
violative of their Rule 11 certifications.”. Thus, the
Court ordered that Pearson was “ENJOINED from filing .
. . direct suits in this court against . . . the Commercial
Bank of Ozark or its agents, servants, employees, officers,
or directors, [without first] submit[ting] a petition for
leave to file, along with a proposed . . . complaint and a
copy of this Order, to this court for consideration.”
(See The Commerical Bank of Ozark v. Lorenzo Pearson and
Clarissa Pearson, 1:15-cv-73-WKW, Doc. 12). In filing
the instant action, Plaintiff has failed to follow the
directions of this Court. Accordingly, the Court concludes
that this action could be dismissed solely on this basis
pursuant to 28 U.S.C. § 1915. However, for the sake of
thoroughness, the Court will now address other bases for
dismissal pursuant to 28 U.S.C. § 1915.
State Action/Private Actor
Process Clause of the Fourteenth Amendment prohibits a
state from depriving a person of
“life, liberty, or property, without due process of
law.” U.S. Const. Amend. XIV (emphasis added).
Additionally, claims brought under 42 U.S.C. § 1983 for
violations of Fourteenth Amendment rights, must be asserted
against state actors. Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct.
977, 143 L.Ed.2d 130 (1999). (Emphasis added). Plaintiff
brings suit against the defendants Commercial Bank of Ozark
and Commercial Bancshares of Ozark, Inc., private entities,
alleging violations of his due process rights. The law is
clear that the under-color-of-state-law element of §
1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful. Focus on the
Family v. Pinellas Suncoast Transit Authority, 344 F.3d
1263, 1277 (11th Cir. 2003); see also Martinez v. Ashtin
Leasing, Inc., 417 Fed.Appx. 883, 884-85 (11th Cir.
2011) (unpublished) (quoting Pinellas). Accordingly,
there is no viable cause of action under 42 U.S.C. §
1983 against the defendants, Commercial Bank of Ozark and
Commercial Bancshares of Ozark, Inc. who are private
entities, for their alleged role in the foreclosure
proceedings instituted on Plaintiff's property. Thus,
Plaintiff's due process claims against them warrants
dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) because
he fails to state a claim against Defendants upon which
relief maybe granted.
Declaratory and Injunctive Relief
claims that in June of 2010 he provided rescission notices to
Defendants pursuant to TILA which voided the mortgage on the
property upon which Defendants foreclosed. (Doc. 9 at pp.
1-5, 7-8). Further, he argues that the subsequent sale of his
property was unlawful under FDCPA because the mortgage was
void. (Doc. 9 at pp. 8-11). Thus, he argues because there was
no mortgage upon which to foreclose that this Court should
enter a “judgment setting aside Dale County Alabama
Circuit Court Judgment from November 15th,
2015.” (Doc. 9 at pp. 5, 7-8). This is precisely the
kind of relief which the Rooker-Feldman doctrine
requires this Court to abstain from awarding. Indeed, the
United States Supreme Court held that the
Rooker-Feldman doctrine, “is confined to cases
. . . brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon
Mobil Corp., v. Saudi Basic Industries Corp. 544 U.S.
280, 284 (2005). Further, suits requesting a federal court to
declare a state court judgment “null and void”
are properly dismissed under the Rooker-Feldman
doctrine “for want of subject-matter
jurisdiction.” Id. at 283-84. (Citation
omitted). Accordingly, the Court concludes that this claim is
due to be dismissed as frivolous pursuant to 28 U.S.C. §
Money Damages ...