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Allen v. Founders Federal Credit Union

United States District Court, D. South Carolina, Charleston Division

January 31, 2018

Robert Craig Allen, Plaintiff,
Founders Federal Credit Union, Defendant.


          Bristow Marchant United States Magistrate Judge

         This action has been filed by the Plaintiff, an inmate at the Livesay Correctional Institution of the South Carolina Department of Corrections, pro se. Plaintiff asserts claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and/or 42 U.S.C. § 1983[1] for breach of trust, negligence, incompetence, and bad faith by the Defendant for its purported failure to prevent Teresa Morrison (who may have been Plaintiff's girlfriend) from removing $4, 440.90 from his account with the Defendant while he was a pretrial detainee at the Spartanburg County Detention Center. Plaintiff seeks monetary damages against the Defendant for its actions.

         The Defendant filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., on November 15, 2017. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on November 16, 2017, advising Plaintiff of the importance of a dispositive motion and of the necessity for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion to dismiss may be granted, thereby ending his case. Plaintiff thereafter filed a memorandum in opposition to the Defendant's motion on January 8, 2018.

         This matter is now before the Court for disposition.[2]


         When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief “on its face”. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable.” Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004).

         Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the pleadings in this case and the arguments of the parties, and in light of the requirements of Rule 12 and the liberal construction given to pro se pleadings, the undersigned finds for the reasons set forth hereinbelow that the Defendant's motion should be granted as to Plaintiff's federal claims. To the extent that Plaintiff intended to allege state law claims, those claims should then be dismissed, without prejudice.


         (Federal Claims)

         Bivens Action. A Bivens action recognizes a private action for damages against federal officers who have violated a citizen's constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). A Bivens action may only be brought against a federal officer. Shelton & Daniels v. Crookshank, No. 17-108, 2018 WL 527423, at * 2 (N.D.W.Va. Jan. 24, 2018). Here, Plaintiff cannot pursue a Bivens action in this case because there is no allegation in the Complaint to show that the Defendant, a credit union, qualifies as a federal official.[3] A federal credit union is a non-profit, cooperative association organized under the Federal Credit Union Act, 12 U.S.C. § 1751 et seq; see United States v. Michigan, 851 F.2d 803, 804 (6th Cir. 1988); and numerous courts have held that federal credit unions are private actors. See Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1132 (9th Cir. 1994)[“[T]he slight degree of government involvement in the business of federal credit unions does not warrant applying Constitutional requirements to these democratically controlled, non-profit cooperatives.”]; Nix v. NASA Fed. Credit Union, 200 F.Supp.3d 578, 587-588 (D.Md. 2016)[dismissing plaintiff's claims against NASA FCU and its employees because NASA FCU was a private, non-governmental actor].

         Since there are no allegations in the Complaint that any federal officer or official was responsible for the conduct alleged, Plaintiff cannot maintain this matter as a Bivens action. Therefore, to the extent Plaintiff's claim(s) are asserted under Bivens, they should be dismissed.

         42 U.S.C. § 1983. To the extent Plaintiff's claims are being asserted under § 1983, the Defendant moves to dismiss his claim on the ground that Plaintiff has not alleged or shown that the Defendant is a state actor. See generally Complaint. In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the defendant(s) deprived him or her of a federal right, and (2) did so under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see Hall v. Quillen, 631 F.2d 1154, 1155-56 & nn. 2-3 (4th Cir.1980). Because the United States Constitution regulates only the government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes “state action.” See, e.g., Blum v. Yaretsky, 457 U.S. 991 (1982). To qualify as state action, the conduct in question “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, ” and “the party charged with the [conduct] must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. at 937; see U.S. v. Int'l Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir.1991).

         In other words, purely private conduct, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under 42 U.S.C. § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936(1982); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961). Here, there is no indication in Plaintiff's pleadings that the Defendant is a qualified “state actor” for purposes of § 1983 claim, or that a violation of Plaintiff's federal rights has occurred. Plaintiff did not even respond to Defendant's argument that no state action has been alleged. Therefore, it is not even clear whether Plaintiff is even contesting dismissal of his claim on this basis. Regardless, since there are no allegations in the Complaint to attribute any of the Defendant's actions or inaction to state action, to the extent Plaintiff's claim is asserted under § 1983, it should be dismissed. See James v. Hertiage Valley Federal Credit Union, 197 F.Appx 102, 106 (3d Cir. 2006)[affirming district court's dismissal of plaintiff's § 1983 claim against Heritage Valley Federal Credit Union because “none of the defendants is a state actor”]; Hauschild v. Nielsen, 325 F.Supp.2d 995, 1005-1006 (D.Neb. 2004)[dismissing plaintiff's § 1983 claim because credit union did not act under color of state law]; Brown v. ...

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