Green v. Presidential Bank, Fsb

FILED
5/29/2020
Clerk, U.S. District & Bankruptcy
Court for the District of Columbia
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEVIN GREEN,
Plaintiff,
v. Civil Action No. 1:20-cv-00183 (UNA)
PRESIDENTIAL BANK, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on review of Plaintiff’s application to proceed in forma
pauperis, ECF No. 2, and his pro se Complaint, ECF No. 1. Plaintiff alleges that Defendants,
including the United States, the Federal Reserve Bank, the Office of the Comptroller of the
Currency, the Department of Housing and Urban Development, a bank, a law firm, and various
individual attorneys and bank employees, committed constitutional violations under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court will
grant the application and dismiss the Complaint.
It appears that businesses Plaintiff controlled secured financing from Presidential Bank,
that these businesses defaulted on their loans, and that the bank foreclosed on the real property
which was collateral for the loans. Compl. at 9–12. It further appears that these businesses filed
for bankruptcy in the United States Bankruptcy Court for the District of Columbia, and that the
firm Friedlander & Misler, Thomas Murphy, Esq., and Lindsay Thompson, Esq., represented
Presidential Bank in those and related proceedings. Id. Generally, Plaintiff alleges that
Defendants have deprived him of liberty and property in violation of the Fifth and Fourteenth
Amendments to the United States Constitution. Id. at 10–11. According to Plaintiff, all
1
Defendants are responsible for the hardships he now suffers, including financial losses, ruined
credit, physical and emotional harm, and entry of a $3 million judgment against him. Id.
Among other relief, the plaintiff demands an award of $150 million. Id. at 15.
The Court concludes that the Complaint fails to state a due process claim against the
private Defendants. Even if these Defendants violated a constitutionally protected right, Plaintiff
does not allege that they acted “under color of any statute, ordinance, regulation, custom, or
usage, of any State or . . .the District of Columbia.” 42 U.S.C. § 1983. The loans were private
activity, and “the under-color-of-state-law element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or wrongful[.]’” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)
(additional citation and footnote omitted)); see Avila v. CitiMortgage, Inc., 45 F. Supp. 3d 110,
122 (D.D.C. 2014) (concluding that claim against private actors acting in their private capacities
fails to state viable due process claim); Fennell v. AARP, 770 F. Supp. 2d 118, 132 (D.D.C.
2011) (“[T]he Due Process Clause, whether it be the one found in the Fifth Amendment or the
Fourteenth Amendment, protects individuals from deprivations of due process by state actors and
does not extend to the conduct of private employers.”); Chandler v. W.E. Welch & Assocs., Inc.,
533 F. Supp. 2d 94, 103 (D.D.C. 2008) (noting that “private conduct does not trigger the
protections of the Fourteenth Amendment”).
Insofar as Plaintiff demands monetary damages from the United States, its agencies, or
federal government officials, these claims would proceed under the Federal Tort Claims Act
(“FTCA”). However, because Plaintiff does not appear to have exhausted his administrative
remedies prior to filing this lawsuit, and because the United States’ sovereign immunity bars a
constitutional tort claim, the Court lacks subject matter jurisdiction over an FTCA claim. See,
2
e.g., Beck v. United States Gov’t, 777 F. App’x 525, 526 (D.C. Cir. 2019) (per curiam) (affirming
district court’s dismissal of FTCA claim due to plaintiff’s failure to exhaust administrative
remedies and because FTCA does not waive government’s sovereign immunity for constitutional
tort claims).
Plaintiff is no more successful in his effort to hold the government officials liable in their
individual capacities. “A federal official may be held personally liable under Bivens only for
unconstitutional conduct in which he was personally and directly involved.” Taylor v. Dir. of
Bureau of Prisons, No. 09-cv-0859, 2009 WL 1322281, at *1 (D.D.C. May 8, 2009) (citing
Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)). Plaintiff fails to allege, for
example, that the Secretary of the U.S. Department of Housing and Urban Development was
personally and directly involved in any event giving rise to this lawsuit, and the Secretary’s
liability cannot not be based on a respondeat superior theory. See id. (citations omitted). The
Court concludes that the Complaint fails to state a Bivens claim.
Accordingly, the Court will grant Plaintiff’s application to proceed in forma pauperis and
dismiss the Complaint without prejudice. An Order will be issued contemporaneously with this
Memorandum Opinion.
DATE: May 29, 2020
CARL J. NICHOLS
United States District Judge
3