Carey v. First Natl Bank , 266 F. App'x 161 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-22-2008
Carey v. First Natl Bank
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4491
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"Carey v. First Natl Bank" (2008). 2008 Decisions. Paper 1541.
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CLD-124 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4491
________________
JOHN FLOYD CAREY, SR.,
Appellant
v.
THE FIRST NATIONAL BANK OF PORT ALLEGANY; ERIE INSURANCE GROUP;
ALLEN W. ROSS; ALLEN ROSS AGENCY, Inc.; KARL E. GECI, Esquire; FORNAN
GECI LAW OFFICE, P.C.
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-01930)
District Judge: Honorable John E. Jones III
_______________________________________
Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and IOP 10.6
February 7, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Filed: February 22, 2008)
_______________________
OPINION
_______________________
PER CURIAM
This is an appeal from the District Court’s dismissal of John Floyd Carey’s
complaint and his subsequent motion for reconsideration. For the following reasons, we
will dismiss this appeal. See 28 U.S.C. § 1915(e)(2)(B)(ii).
On October 22, 2007, Appellant, an inmate at Clinton County Correctional Facility
in McElhattan, Pennsylvania, initiated a pro se civil rights action under 42 U.S.C. § 1983.
Carey’s allegations stemmed from an alleged plot by his ex-wife, her attorney, the bank
which holds a mortgage on Carey’s property, the insurance company which issued a
policy covering his property, his insurance agent, and the purchaser of his property to sell
his real estate without his authorization. In 2001, according to Carey, a fire destroyed a
store which he owned. The insurance company denied his claim after concluding that the
fire was arson caused by Carey. Without the income from his store, Carey was unable to
pay the mortgage on his properties. After Carey was incarcerated, he claimed that his ex-
wife and her attorney conspired with the bank to sell his properties without his
permission. Pursuant to its screening authority under 28 U.S.C. § 1915(e)(2)(B) the
District Court dismissed Appellant’s complaint for failure to state a claim. Carey filed a
motion for reconsideration which the District Court also dismissed.
We exercise plenary review over the District Court’s dismissal of Carey’s
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Tourscher v. McCullough 184
F.3d 236, 240 (3d Cir. 1999). Upon review, it is clear that the District Court properly
dismissed Carey’s claims. None of Carey’s claims presents a proper § 1983 civil rights
claim. See Baker v. McCollan, 443 U.S. 137, 146 (1979) (tort claims must be pursued in
state courts under traditional state law principles and not under § 1983). Further, as the
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District Court noted, all of the defendants named in Carey’s complaint are private
individuals or businesses, none of whom are alleged to be state actors or to have abused
power granted by the state. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189
(3d Cir. 2005) (section 1983 plaintiff must allege that constitutional deprivation was
committed by a person acting under color of state law).
The District Court also properly dismissed Carey’s motion for reconsideration.
Carey, in his motion for reconsideration, alleged that his ex-wife and her attorney violated
his Fifth Amendment rights by selling his property. Carey’s allegation does not change
the fact that this is a tort claim more appropriate for state court. Further, Carey’s claim
that Karl Geci, his ex-wife’s attorney, executed a federal Housing and Urban
Development form with misleading figures does not cure the state actor defect of his civil
rights claim.
In sum, because Carey’s appeal lacks arguable legal merit, we will dismiss it
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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