United States District Court, D. Kansas
RONALD E. DAVIS, Plaintiff,
BANK OF AMERICA, Defendants.
MEMORANDUM & ORDER
MURGUIA United States District Judge
matter comes before the court on pro se plaintiff Ronald E.
Davis's Motion By Plaintiff to Waiver Court Rule 16.2 And
Proceed With FRCP 56 Summary Judgment (Doc. 45) and defendant
Bank of America, N.A.'s (“BANA”) Motion for
Summary Judgment (Doc. 50).
outset, the court notes that plaintiff's motion for
summary judgment against defendant Franchise Tax Board is
moot as the Franchise Tax Board was dismissed from the case.
(Doc. 41). The court denied plaintiff's motion to
reconsider the dismissal of the Franchise Tax Board (Doc.
63), and therefore, the Franchise Tax Board is no longer a
party to the case. The court will only consider this motion
as to defendant BANA.
remaining defendant, BANA, filed a competing summary judgment
motion, arguing it is entitled to judgment as a matter of law
based on the undisputed evidence it submitted with its
filed this case alleging, generally, his federal civil rights
were violated and that he was a victim of fraud after BANA
garnished $719.87 from his bank account. According to BANA,
plaintiff opened a checking account with the bank in 2004 and
signed the requisite form agreeing to be bound by the Deposit
Agreement and Disclosures. This agreement explicitly states
that BANA may “hold and turn over funds or other
property . . . as directed by the legal process.” (Doc.
49-1, at 28.) On July 5, 2016, the Franchise Tax Board issued
an “Order to Withhold Personal Income Tax”
directing BANA to withhold $719.87 from plaintiff's
account. In response, BANA withdrew the funds from
plaintiff's account and assessed a legal process fee of
$125. Plaintiff contacted BANA regarding the fund withdrawal
and threatened legal action. BANA responded and explained
that it was required to comply with the order from the
Franchise Tax Board. On July 18, 2016, the Franchise Tax
Board issued a “Withdrawal of a Withholding
Order” which withdrew the prior withholding order. BANA
claims it then released the $719.87 into plaintiff's
sued the Franchise Tax Board and BANA, arguing the
garnishment was a violation of his constitutional rights and
that both defendants had committed fraud. He claims he had
not lived in California for more than 20 years and therefore
the tax assessment was fraudulent in violation of various
federal and state statutes and regulations, both civil and
criminal. Plaintiff maintains the case is not about the tax
assessment; rather, it is an action for theft and fraud.
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c). A
“genuine” factual dispute requires more than a
mere scintilla of evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The party seeking
summary judgment bears the initial burden of showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
making the summary judgment determination, the court must
view the evidence and reasonable inferences in the light most
favorable to the nonmoving party. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). Ultimately, the court
evaluates “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Liberty Lobby, 477 U.S. at 252.
the court notes that plaintiff's summary judgment motion
does not comply with D. Kan. Rule 56.1(a), as he failed to
submit a “concise statement of material facts”
which are “numbered and  refer with particularity to
those portions of the record upon which the movant
relies.” Although plaintiff is proceeding pro se, he
still has an obligation to comply with the Local Rules.
See Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005) (noting that pro se parties
must follow the same rules of procedure that govern other
plaintiff failed to lay out a coherent motion for summary
judgment; instead he outlined 39 alleged “violations
and infractions” that amount to mere conclusory
arguments unsupported by evidence. As noted above, plaintiff,
as the moving party, bears the burden of showing that, based
on the evidence in the record, there are no genuine issues of
material fact and that he is entitled to judgment as a matter
of law. In simply reciting conclusory arguments unsupported
by any evidence, plaintiff has not met his burden.
plaintiff has failed to state a claim for relief. While
plaintiff may have generally asserted claims for fraud,
theft, and violation of his civil rights, he has not pled any
facts or provided any evidence that would amount to a cause
of action under the law or establish the elements of a tort.
Again, while the court acknowledges plaintiff's pro se
status, it is not the “function of the district court
to assume the role of advocate for the pro se
litigant.” Id. (noting, “although we
make some allowances for the [pro se] plaintiff's failure
to cite proper legal authority, his confusion of various
legal theories, his poor syntax and sentence construction, or