United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
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 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
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.
matter is now before the Court for disposition.
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).
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,
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. 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,
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
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).
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