George Ray v. First Natl Bank of Omaha ( 2011 )

  •       GLD-088                                                  NOT PRECEDENTIAL
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                         No. 10-3582
                                      GEORGE E. RAY,
                       NATIONAL BANK; AND WELLS FARGO
                        On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                 (D.C. Civil No. 09-cv-02845)
                          District Judge: Honorable Stewart Dalzell
                      Submitted for Possible Summary Action Pursuant to
                           Third Circuit LAR 27.4 and I.O.P. 10.6
                                       January 13, 2011
                Before: AMBRO, CHAGARES and NYGAARD, Circuit Judges
                               (Opinion filed February 11, 2011)
          George Ray, proceeding pro se, appeals the District Court’s order dismissing his
    complaint. Because the appeal does not present a substantial question, we will
    summarily affirm.
           Ray, who was granted leave to proceed in forma pauperis, filed a complaint
    against First National Bank of Omaha, J.P. Morgan Chase National Bank, and Wells
    Fargo in 2009. He alleged that the Defendants violated the Patriot Act1 and committed
    fraud on him and the Internal Revenue Service by classifying his accounts as “bad debts”
    and selling them to collection agencies. He sought $ 9 million in damages.2
           The Defendants filed motions to dismiss to the complaint. Because Ray mailed
    his response to the motions directly to chambers, the District Judge issued an order
    directing the Clerk to docket the response. Ray appealed from that order. Consequently,
    the District Court issued an order denying the Defendants’ motions without prejudice and
    directing the case to be transferred to the court’s civil suspense docket pending the
    outcome of Ray’s appeal. After this Court dismissed Ray’s appeal for lack of
    jurisdiction, the District Court ordered that the case be transferred back to the active
    docket and dismissed it pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for “fail[ure] to state a
    claim on which relief may be granted.”
     Uniting and Strengthening America by Providing Appropriate Tools Required to
    Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115
    Stat. 272 (2001).
      Ray previously filed a similar complaint against First National Bank of Omaha and
    Global Acceptance Credit Company, L.P., in which he alleged that he became unable to
    pay a debt to the bank because of a disabling injury, and the bank took a tax deduction for
    the amount of the “bad debt,” thereby being “made whole,” and then sold the debt to the
    collection agency. He contended that this sale of the account constituted fraud. See
    Complaint, Ray v. Bank of Omaha, et al., No. 08-cv-03222 (E.D. Pa. Jul. 16, 2008). The
    District Court dismissed the complaint for failure to state a claim, concluding that Ray
           We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
    plenary review of the District Court’s sua sponte dismissal of the complaint for failure to
    state a claim, and we must accept as true the allegations of fact in Ray’s complaint and all
    reasonable inferences drawn therefrom. Allah v. Seiverling, 
    229 F.3d 220
    , 223 (3d Cir.
    2000). If no substantial question is presented by this appeal, we may summarily affirm
    the District Court’s order on any ground supported by the record. See 3d Cir. L.A.R.
    27.4; IOP 10.6; Tourscher v. McCullough, 
    184 F.3d 236
    , 240 (3d Cir. 1999).
           The District Court discerned two claims in Ray’s complaint: that (1) he and the
    Internal Revenue Service were defrauded by the Defendants’ sale of his accounts to
    collection agencies after being “reimbursed by the I.R.S,” see Complaint at 2, Ray v.
    First National Bank of Omaha, et al., No. 09-cv-02845 (E.D. Pa. June 29, 2009),
    and (2) the Defendants violated the Patriot Act by selling his personal data (birthdate,
    social security number, etc.) as part of the sale of the accounts. Even reading the
    complaint liberally, the District Court could not find either claim legally cognizable
    because Ray “provided almost no specific facts regarding the events that led him to file
    his Complaint.” See Order, Ray v. First National Bank of Omaha, et al., No. 09-cv-
    02845 (E.D. Pa. Aug. 13, 2010).
           We likewise fail to see anything more than blanket assertions of entitlement for
    relief, which are insufficient to sustain the complaint. A complaint must provide “enough
    was not a party to the allegedly fraudulent sale and therefore was entitled to no remedy.
    See Order, Ray v. Bank of Omaha, et al., No. 08-cv-03222 (E.D. Pa. Aug. 19, 2008).
    facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v.
    550 U.S. 544
    , 570 (2007). While “detailed factual allegations” are not
    necessary, a plaintiff ’s obligation to provide the grounds upon which his claim rests
    “requires more than labels and conclusions.” Id. at 555.
           The deficiencies in Ray’s complaint are many. For example, he asserts that the
    Defendants committed fraud on the Internal Revenue Service by taking a tax deduction
    for the bad debt, but does not connect this allegation to any elements of a cause of action.
    Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to relief
    above the speculative level”). Furthermore, he alleges no particularized injury to himself
    from the alleged fraud upon the Internal Revenue Service, nor does he otherwise identify
    how he may bring an action on behalf of the agency. See e.g., Lujan v. Defenders of
    504 U.S. 555
    , 560-61 (1992) (one of the elements of constitutional standing to
    bring suit is a concrete injury personal to the plaintiff).
           Ray’s allegations also fail to suggest how the Defendants’ sale of his debt
    accounts to collection agencies constitutes a fraud against him when he was not a party to
    the transaction. Without being able to ascertain from the complaint what theory of fraud
    Ray envisions, we simply note that he does not allege that the Defendants made any
    misrepresentation to him, that he relied on it to his detriment, or that he personally was
    injured by their conduct. See, e.g., EBC, Inc. v. Clark Bldg. Sys., Inc., 
    618 F.3d 253
    275-76 (3d Cir. 2010) (setting forth elements of fraudulent inducement under
    Pennsylvania law). As for his assertion that the sale violated the Patriot Act, Ray does
    not identify what section of the act was violated or explain how he may bring a private
    action to enforce it. Furthermore, courts that have considered the question have
    concluded that the Patriot Act does not provide for a private right of action for its
    enforcement. See, e.g., Hanninen v. Fedoravitch, 
    583 F. Supp. 2d 322
    , 326 (D. Conn.
    2008); Med. Supply Chain, Inc. v. Neoforma, Inc., 
    419 F. Supp. 2d 1316
    , 1330 (D. Kan.
    2006). Accordingly, we agree that Ray’s complaint does not state a claim on which relief
    may be granted.3
           A district court should not dismiss a pro se complaint without allowing the
    plaintiff an opportunity to amend his complaint unless an amendment would be
    inequitable or futile. See Alston v. Parker, 
    363 F.3d 229
    , 235 (3d Cir. 2004). As it
    appears that amendment would be futile, for the reasons expressed in the previous
    paragraph, we conclude that the District Court did not err by declining to afford Ray
    leave to amend.
           There being no substantial question presented by Ray’s appeal, we will summarily
    affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; IOP 10.6. We deny Ray’s
    motion to compel an answer.
      In his written submission on appeal, Ray does not address the District Court’s order
    other than to say the court “disregarded” the facts he presented. He perhaps
    misunderstands the court’s decision: the few facts in the complaint were considered and
    found insufficient. Ray also argues that he was entitled to a default judgment before the
    dismissal because the Defendants did not answer his complaint. He was not. First, Ray
    did not request that a default be entered. See Fed. R. Civ. P. 55(a). Second, the manner
    in which the case proceeded did not require the Defendants to file an answer before the
    complaint was dismissed.