Selver v. Washington Mutual Bank

Full title: DAVID RALPH SELVER, Plaintiff, v. WASHINGTON MUTUAL BANK, Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Jan 8, 2003

No. 3:02-CV-1333-D (N.D. Tex. Jan. 8, 2003)

Opinion

No. 3:02-CV-1333-D

January 8, 2003

MEMORANDUM OPINION AND ORDER

IRMA C. RAMIREZ, United States District Judge.

Pursuant to an Order of Reference dated November 20, 2002, the District Judge referred to the undersigned Magistrate Judge a motion to amend and request for appointment of counsel filed by plaintiff on November 15, 2002. For the reasons that follow the motion and request for appointment of counsel are denied.

Motion to Amend

On June 24, 2002, plaintiff an inmate of the Collin County Detention Facility who formerly resided in Plano, Texas, filed the instant unspecified civil action against Washington Mutual Bank, located in Richardson, Texas, complaining of the handling of his home loan before and during his incarceration as well as the subsequent foreclosure of the home. On October 18, 2002, the undersigned Magistrate Judge recommended that the Court dismiss this action for lack of subject matter jurisdiction. On October 31, 2002, the Honorable Sidney A. Fitzwater granted plaintiff until November 18, 2002, to file an amended complaint that pleads a proper basis for this Court to exercise jurisdiction over this case. On November 15, 2002, plaintiff filed the instant motion to amend and request for appointment of counsel.

The Court should freely grant leave to amend "when justice so requires." See Fed.R.Civ.P. 15(a). Nevertheless, such leave is not automatically granted. See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).

[T]he propriety of allowing amendment to cure jurisdictional defects should be governed by the same standard as other amendments to pleadings, namely the standard set forth by the Supreme Court:

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."

Whitmire v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

In this instance, the proposed amendment adds no claim that is actionable in federal court. It adds a claim of bad faith which is neither based upon a federal statute nor the United States Constitution. It also adds allegations that defendant has violated plaintiff's rights under the United States Constitution. Although such allegations can support a federal action under 42 U.S.C. § 1983,¹ plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999). Plaintiff makes no allegation that the alleged deprivation occurred under color of state law. Defendant bank is not a state actor for purposes of § 1983.

1 Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994).

The Court, nevertheless, recognizes that, in certain circumstances, private parties may be acting "under color of state law" and thus held liable under § 1983:

`Private persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of the statute. To act `under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.'

Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). To support such a conspiracy claim, plaintiffs "must allege facts that suggest: 1) an agreement between the private and public defendants to commit an illegal act and 2) an actual deprivation of constitutional rights." Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations omitted).

To find state action by a private party in the absence of an alleged conspiracy, a plaintiff must show that the private actor "performs a function which is traditionally the exclusive province of the state" or that "there is a nexus between the state and the action of the private defendant such that the action is fairly attributable to the state." See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989). Under the latter alternative,

a finding of state action is justified "`only where it can be said that the state is responsible for the specific conduct of which the plaintiff complains.' A state is not responsible for a private party's decisions unless it `has exercised coercive power or has provided such significant encouragement, . . . that the choice must in law be deemed to be that of the state.'"

Id. (citations omitted).

Plaintiff here has made no allegation of any conspiracy. He has alleged no facts that suggest any agreement between the defendant bank and any public defendant. Furthermore, a bank does not perform a function that is traditionally the exclusive province of the state when it handles home financing or foreclosures. In addition, there is no nexus between the State and the actions of the bank such that the bank's actions are fairly attributable to the State. For all of these reasons, plaintiff has failed to state a viable claim under § 1983 against the bank. It is futile for plaintiff to succeed on his allegations of constitutional violations. Consequently, the Court declines to permit plaintiff to amend his complaint to assert the claim.

Without the § 1983 claim, the proposed amendment does not correct the jurisdictional deficiencies noted in the findings and recommendation of October 18, 2002. In those findings, the undersigned Magistrate Judge noted:

In this instance, plaintiff asserts no federal statutory or constitutional basis for this suit against a bank based on its handling of his home loan and the subsequent foreclosure of his home. His claims appear to arise under state consumer protection laws. Federal courts have no jurisdiction over such claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332, however. Plaintiff's "Statement of Claims" does not allege the complete diversity of citizenship necessary to proceed under § 1332. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991) (holding that "[t]he burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction").

Amending the instant action to include a claim of bad faith does not provide a proper jurisdictional basis for pursuing this action in federal court. In the absence of jurisdiction it is futile for plaintiff to proceed with his claim of bad faith in this Court. Consequently, the Court denies the request to amend the complaint to include a claim of bad faith. Justice does not require allowing an amendment that will simply be later dismissed for lack of jurisdiction.

Motion for Appointment of Counsel

The Court also denies the request for appointment of counsel. Plaintiff has provided nothing to indicate that he has tried to obtain legal assistance without payment. Further, it appears that his action rests solely on state law grounds. The undersigned Magistrate Judge has recommended that this action be dismissed for lack of subject matter jurisdiction. Under such circumstances, appointment of counsel is unnecessary. Consequently, the Court denies the motion for appointment of counsel without prejudice to plaintiff filing another such motion, if the District Court does not dismiss this action for lack of jurisdiction and if he survives summary dismissal after any dispositive motions have been decided.

For the foregoing reasons, the Court denies the motion to amend and request for appointment of counsel (doc. 15) filed by plaintiff on November 15, 2002.