Belcher v. Wells Fargo Bank NA , 377 F. App'x 59 ( 2010 )

09-2023-cv, 09-3617-cv
Belcher v. Wells Fargo Bank NA
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14 th day of May, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOSEPH M. McLAUGHLIN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 Mark D. Belcher,
14 Plaintiff-Appellant,
15
16 -v.- 09-2023-cv
17 09-3617-cv
18
19 Wells Fargo Bank NA, et al.,
20 Defendants-Appellees.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: Mark D. Belcher, pro se, Bridgeport,
24 CT.
25
26 FOR APPELLEE: Charles D. Ray, David M. Bizar,
27 Matthew A. Weiner, McCarter &
1
1 English, LLP, Hartford, CT, for
2 Wells Fargo Bank NA)
3
4 Richard Blumenthal, Attorney General
5 for the State of Connecticut; Maura
6 Murphy Osborne, Assistant Attorney
7 General, Hartford, CT, for the State
8 of Connecticut.
9
10 Appeal from a judgment of the United States District
11 Court for the District of Connecticut (Eginton, J.).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15 In these consolidated appeals, Mark Belcher, pro se,
16 appeals the district court’s denial of his motion for a
17 preliminary injunction (Docket No. 09-2023-cv), and the
18 court’s sua sponte dismissal of his complaint for lack of
19 subject matter jurisdiction (Docket No. 09-3617-cv). We
20 assume the parties’ familiarity with the underlying facts,
21 the procedural history of the case, and the issues presented
22 for review.
23 We review the district court’s jurisdictional ruling de
24 novo, see Celestine v. Mount Vernon Neighborhood Health
25 Ctr., 403 F.3d 76, 79-80 (2d Cir. 2005); and find no error.
26 Because Belcher and at least one of the defendants are
27 Connecticut residents, Belcher could not invoke diversity
28 jurisdiction under 28 U.S.C. § 1332. See Wis. Dep’t of
2
1 Corr. v. Schacht, 524 U.S. 381, 388 (1998) (diversity
2 jurisdiction under 28 U.S.C. § 1332 exists “only if
3 diversity of citizenship among the parties is complete,
4 i.e., only if there is no plaintiff and no defendant who are
5 citizens of the same State”). And Belcher has asserted no
6 federal claim that is sufficiently substantial to support
7 federal question jurisdiction under 28 U.S.C. § 1331.
8 Belcher alleges that he and his deceased mother were
9 defrauded out of his mother’s house by an ill-assorted group
10 of conspirators, including the bank mortgagee of the house,
11 the bank’s lawyers, the state judges involved in his related
12 civil claims, the state attorney general, and the Attorney
13 General of the United States, all of whom allegedly violated
14 his federal due process and equal protection rights. These
15 fantastical claims are insufficiently substantial to support
16 federal court jurisdiction under § 1331. Cf., e.g., Adams
17 v. Suozzi, 433 F.3d 220, 225 (2d Cir. 2005) (“A federal
18 court may refuse to entertain a claim based on federal law
19 otherwise within its jurisdiction only if the federal basis
20 for that claim is so attenuated and unsubstantial as to be
21 absolutely devoid of merit.” (internal quotation marks
22 omitted)).
23 Even if Belcher’s allegations satisfied the
24 substantiality requirement of federal question jurisdiction,
3
1 they fail to state a plausible claim for relief, and we
2 would therefore affirm on that basis nevertheless. See
3 ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.
4 2003) (“[We may] affirm the district court’s judgment on any
5 ground appearing in the record, even if the ground is
6 different from the one relied on by the district court.”).
7 Belcher’s § 1983 claims against the non-state individual
8 defendants fail because he did not allege that they acted
9 under color of state law. See Tancredi v. Metro. Life Ins.
10 Co., 316 F.3d 308, 312 (2d Cir. 2003) (“A plaintiff pressing
11 a violation of his constitutional rights under § 1983 is
12 . . . required to show state action.”). Belcher’s claims
13 against the named judges and prosecutors are barred by
14 absolute immunity, and he did not allege any facts
15 suggesting that any of the narrow exceptions to immunity
16 applies. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991)
17 (discussing absolute judicial immunity); Buckley v.
18 Fitzsimmons, 509 U.S. 259, 272-73 (1993) (prosecutors
19 entitled to absolute immunity for actions taken while
20 serving as advocates).
21 Finally, because the district court soundly concluded
22 that Belcher was unlikely to prevail on his claims, the
23 court’s decision to deny his motion for a preliminary
24 injunction was not an abuse of discretion. See, e.g.,
4
1 Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204,
2 209 (2d Cir. 2009) (reviewing district court’s denial of
3 preliminary injunction motion for abuse of discretion and
4 setting out showing necessary to obtain a preliminary
5 injunction).
6 Finding no merit in Belcher’s remaining arguments, we
7 hereby AFFIRM the judgment of the district court.
8
9
10 FOR THE COURT:
11 CATHERINE O’HAGAN WOLFE, CLERK
12
5