United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE.
Stephanie Ann Stepp is a resident of Ashland, Kentucky.
Proceeding without an attorney, Stepp has filed a complaint
against Wells Fargo Bank, NA, and approximately 13 other
Defendants. [R. 1] Stepp has not paid the filing fee,
but she has filed a motion for leave to proceed in forma
pauperis. [R. 2] The information contained in
Stepp's fee motion indicates that she lacks sufficient
assets or income to pay the $350.00 filing fee, thus her
motion will be granted. Because Stepp is granted pauper
status in this proceeding, the $50.00 administrative fee is
waived. District Court Miscellaneous Fee Schedule, § 14.
Court must conduct a preliminary review of Stepp's
complaint because she has been granted pauper status. 28
U.S.C. § 1915(e)(2). A district court must dismiss any
claim that is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).
Stepp's complaint makes no real substantive factual
allegations, it appears that her claims relate to a home
mortgage being serviced by Wells Fargo and/or a Wells
Fargo-related entity. Stepp alleges that the events giving
rise to her claims occurred on or about September or October
2013 and that “[w]e fell behind on our payments b/c of
my car wreck. Fell behind, asked for help, and that's
when the fun began!” [R. 1 at p. 9] When prompted to
state the facts underlying her claims, she states that
“Wells Fargo has put us thru Holy Hell and Mental
Torture! Since 2013 they have done nothing but try to cover
up their alleged fraud and corruption!” [Id.
at p. 14] Based on these allegations, Stepp asserts claims
based upon the following statutes and Court Rules: (1) the
notice requirements of the Fair Debt Collection Practices Act
(“FDCPA”); (2) UCC Code 3-302, Section 3-106(d);
(3) Rule 60(b) of 1946; (4) the Fourteenth Amendment of the
United States Constitution; and (5) the USA Patriot Act, 31
U.S.C. § 5318(k). [R. 1 at p. 8] She also accuses Wells
Fargo of fraud and gross negligence. [R. 1 at p. 14] As
relief, she seeks $333, 000, 000.33 in monetary damages
(including punitive damages), to be awarded to herself, her
mother, and her daughter. [R. 1 at p. 14]
Court evaluates Stepp's complaint under a more lenient
standard because she is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
However, the principles requiring generous construction of
pro se pleadings are not without limits. Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Wilson
v. Lexington Fayette Urban County Government, No.
07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007).
Although the Court has an obligation to liberally construe a
complaint filed by a person proceeding without counsel, that
obligation does not extend so far as to require or permit it
to create arguments or claims that the plaintiff has not
made. Coleman v. Shoney's, Inc., 79 Fed.Appx.
155, 157 (6th Cir. 2003) (“Pro se parties must still
brief the issues advanced with some effort at developed
argumentation.”). The Court is not required to create a
claim for the plaintiff, nor to “conjure up unpled
allegations.” Moorman v. Herrington, No. CIV A
4:08-CV-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9,
thoroughly reviewed Stepp's complaint, the Court
concludes that it must be dismissed. A complaint must set
forth claims in a clear and concise manner, and must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
See also Fed. R. Civ. P. 8. In addition, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
complaint does not comply with Rule 8 of the Federal Rules of
Civil Procedure because it does not contain “a short
and plain statement of the claim showing that [she] is
entitled to relief” and fails to include allegations
that are “simple, concise, and direct.”
Fed.R.Civ.P. 8(a)(2), (d)(1). Indeed, Stepp's complaint
alleges no facts giving rise to her claims at all. Rather,
she simply labels Wells Fargo's unspecified actions as
“fraudulent” and “grossly negligent,
” then asserts that Wells Fargo violated federal law
and the Uniform Commercial Code. However, she never explains
exactly what Wells Fargo did at all, much less offer
any explanation of how any of the statutes that she cites
were violated. Vague allegations that one or more of the
defendants acted wrongfully or violated the plaintiff's
constitutional rights are not sufficient. Laster v.
Pramstaller, No. 08-CV-10898, 2008 WL 1901250, at *2
(E.D. Mich. April 25, 2008).
Stepp's reference to the notice requirements of the
FDCPA, she fails to state a claim for an FDCPA violation
because she alleges no facts explaining how either Wells
Fargo, or any of the other named Defendants, violated any
provision of the FDCPA. Similarly, although she cites to the
Uniform Commercial Code provisions defining “holder in
due course, ” she provides no factual allegations
regarding why this provision is even relevant to her claims,
much less explain how she is entitled to relief for any
purported violation of the statute. Where, as here, the
allegations of the complaint are totally unsubstantial, a
federal district court has the authority to dismiss the
complaint under Fed.R.Civ.P. 12(b)(1). Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (a district
court may, upon its own motion, dismiss for lack of subject
matter jurisdiction any complaint whose allegations
“are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to
discussion”) (citations omitted).
unavailing is Stepp's claim that “Wells Fargo
committed ‘fraud on the court' Violation of Rule
60(b) of 1946” [R. 1 at p. 8], presumably an attempt to
invoke Fed.R.Civ.P. 60(b). However, Rule 60(b) is the Federal
Rules of Civil Procedure authorizing a court to relieve a
party from a final judgment, order, or proceeding, and is not
a source of a private cause of action. Indeed, to the extent
that she alleges fraud, her allegations fall woefully short
of the particularity required by Fed.R.Civ.P. 9(b).
See Fed. R. Civ. P. 9(b) (“In alleging fraud
or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”). See
also Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir.
2008) (“At a minimum, Plaintiffs must allege the time,
place and contents of the misrepresentations upon which they
relied.”) (citation omitted).
to the extent that Stepp's complaint invokes the
Fourteenth Amendment, “the Fourteenth Amendment, which
prohibits states from denying federal constitutional rights
and which guarantees due process, applies to acts of the
states, not to acts of private persons or entities.”
Rendell-Baker v. Kohn, 457 U.S. 830, 837-838 (1982)
(citations omitted). Wells Fargo is neither a “state
actor, ” nor was it acting “under color of state
law, ” as is required for imposition of liability under
42 U.S.C. § 1983 for the deprivation of an
individual's constitutional rights. Polk County v.
Dodson, 454 U.S. 312, 317-318 (1981). See also
Communities for Equity v. Michigan High Sch. Athletic
Ass'n, 459 F.3d 676, 691 (6th Cir. 2006) (“An
entity or individual charged under § 1983 with a
Fourteenth Amendment violation must be a ‘state
actor.'”); Searcy v. City of Dayton, 38
F.3d 282, 286 (6th Cir. 1994). Wells Fargo is a private
entity and “merely private conduct, no matter how
discriminatory or wrongful, ” is excluded from the
reach of § 1983. American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999) (citations omitted).
although Stepp claims a violation of a provision of the USA
Patriot Act, 31 U.S.C. § 5318(k), the USA Patriot Act
does not authorize a private right of action. See Belle
Meade Title & Escrow Corp. v. Fifth Third Bank, 282
F.Supp.3d 1033, 1039 (M.D. Tenn. 2017) (collecting cases).
See also Hanninen v. Fedoravitch, 583 F.Supp.2d 322,
326-327 (D. Conn. 2008).
of these reasons, Stepp's complaint fails to state even a
plausible claim upon which relief may be granted. Thus, her
complaint will be dismissed on the Court's preliminary
screening. 28 U.S.C. § 1915(e)(2).
it is OR ...