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Fields v. Faircloth

United States District Court, D. Kansas

January 24, 2018

SAM FIELDS, Plaintiff,
v.
RONNIE D.M. FAIRCLOTH, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on plaintiff's Objection to Magistrate Judge K. Gary Sebelius's Report and Recommendation (Doc. 10, objecting to Doc. 7) and plaintiff's motion for leave to file a second amended complaint (Doc. 11).[1] While these were pending, plaintiff filed a Motion for Preliminary Injunction (Doc. 17) and a Motion for an Emergency Temporary Restraining Order (Doc. 22). On November 3, 2017, the court denied the Motion for Preliminary Injunction and the Motion for an Emergency Temporary Restraining Order. Doc. 23. And, approximately a month later, plaintiff filed another Motion for Preliminary Injunction (Doc. 24). For reasons explained below, the court overrules plaintiff's Objection, denies his motion for leave to amend, and dismisses this lawsuit because the Complaint fails to state a claim. This renders plaintiff's Motion for Preliminary Injunction (Doc. 24) moot, and the court denies it for that reason.

         I. Objection to Judge Sebelius's Report and Recommendation

         On June 30, 2017, Judge Sebelius issued a Report and Recommendation (Doc. 7). Judge Sebelius concluded that the plaintiff's First Amended Complaint (Doc. 6) fails to state a claim upon which relief may be granted. For this reason, he recommended dismissal of this action without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).

         As Judge Sebelius explained in his Report and Recommendation, plaintiff had the right to file objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72 within 14 days after service. Doc. 7 at 5. He also advised plaintiff that failing to make a timely objection to the Report and Recommendation would waive any right to appellate review of his proposed findings of fact, conclusions of law, and recommended disposition. Id. On June 30, 2017, the Clerk sent a copy of the Report and Recommendation to plaintiff both by regular and certified mail (Docket Entry for Doc. 7), thus completing service of the Report and Recommendation. See Fed. R. Civ. P. 5(b)(2)(C) (providing that the court may accomplish service by mailing the Report and Recommendation “to [plaintiff's] last known address-in which event service [was] complete upon mailing”); accord ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014).

         If an aggrieved party objects to the magistrate judge's report and recommendation, the district judge assigned to the case “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). For the Report and Recommendation to be “properly objected to, ” a party's objection must “be both timely and specific.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). An objection is sufficiently specific if it “focus[es] the district court's attention on the factual and legal issues that are truly in dispute.” Id. If the aggrieved party fails to make such a proper objection, then he fails to preserve the objection for appellate review. Id.

         Here, plaintiff timely filed his Objection to Judge Sebelius's Report and Recommendation on July 13, 2017. Doc. 10. But, plaintiff's Objection does not actually object to any portion of Judge Sebelius's Report and Recommendation. Instead, it asks the court to grant plaintiff leave to file an amended complaint and informs the court that plaintiff intends to file a motion to appoint counsel. Id. Plaintiff's Objection thus is not sufficiently specific to require de novo review. Because the gist of plaintiff's filing asks to amend his First Amended Complaint, the court also considers plaintiff's Objection as a motion to amend under Rule 15.

         Because plaintiff has not objected to Judge Sebelius's Report and Recommendation properly, the court has considerable discretion to review the recommendation under any standard it finds appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). After reviewing the First Amended Complaint and Judge Sebelius's Report and Recommendation, the court agrees with Judge Sebelius's recommendation in its entirety. Plaintiff's First Amended Complaint asserts claims under federal statutes that either create no private causes of action or do not authorize plaintiff, a pro se litigant, to bring an action. And, plaintiff's First Amended Complaint fails to allege facts sufficient to support a claim under the False Claims Act, 31 U.S.C. § 3729 et seq. The court thus accepts, affirms, and adopts Judge Sebelius's Report and Recommendation in its entirety.

         II. Motion for Leave to File a Second Amended Complaint

         In the portion of plaintiff's filing asking to amend his existing Complaint, plaintiff seeks leave to file a proposed Second Amended Complaint. He attaches this proposed amendment to the motion, Docs. 11, 11-1, 11-2, as our D. Kan.Rule 15.1 requires. Rule 15(a)(2) provides that courts should “freely give leave when justice so requires.” The decision whether to grant leave to amend is committed to the court's discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citations omitted). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason . . . .” Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001) (citations omitted).

         After reviewing plaintiff's proposed Second Amended Complaint, the court concludes that it is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). So, giving plaintiff leave to amend is a futile act. When plaintiff is proceeding in forma pauperis, § 1915(e)(2)(B)(ii) authorizes the court to consider, sua sponte, whether the complaint fails to state a claim on which relief may be granted. Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). The court granted plaintiff in forma pauperis status on May 22, 2017, and now elects to exercise its authority under § 1915(e)(2)(B)(ii) to consider whether plaintiff's proposed Second Amended Complaint fails to state a claim on which relief may be granted.

         A. Legal Standard

         “In determining whether dismissal is appropriate under § 1915(e)(2)(B), a plaintiff's complaint will be analyzed by the Court under the same sufficiency standard as a Rule 12(b)(6) Motion to Dismiss.” Washington v. Washington, No. 14-1215-EFM-KGG, 2014 WL 4059788, at *3 (D. Kan. Aug. 15, 2014) (citing Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)).

         For a Rule 12(b)(6) Motion to Dismiss, the court looks to the pleading standard provided in Rule 8(a)(2). This rule provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

         On a motion to dismiss, the court assumes that a complaint's factual allegations are true, but need not accept mere legal conclusions as true. Id. at 1263. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not enough to state a claim for relief. Iqbal, 556 U.S. at 678. But, because plaintiff proceeds pro se, the court construes his pleadings liberally and holds them to a less stringent standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not assume the role of advocate for plaintiff. Id. Nor does plaintiff's pro se status excuse him from complying with the court's rules or facing the consequences of noncompliance. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

         B. Analysis

         Plaintiff's proposed Second Amended Complaint names three defendants-Ronnie D.M. Faircloth, Capitol Federal Savings Bank, and the Federal Housing Finance Agency-and purports to assert claims under five federal statutes. Doc. 11-2 at 1-2. These statutes are: (1) Title 12 U.S.C. § 1723a(a); (2) Title 24 U.S.C. § 3500; (3) Title 12 U.S.C. § 2601; (4) Title 15 U.S.C. § 1601(a); and (5) Title 15 U.S.C. § 1635. One of these statutes comes from the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17, (“RESPA”)-§ 2601-and two come from the Truth in Lending Act (“TILA”)-15 U.S.C. §§ 1601(a) and § 1635. The court's analysis, which follows, organizes under these two acts.

         But first, the court addresses the other two statutes invoked by the proposed Second Amended Complaint. The proposed Second Amended Complaint contains no factual allegations to support a claim under either statute. On page three of the Second Amended Complaint, plaintiff references “TITLE 24 U.S.C. 3500” as another ground under which the court has subject matter jurisdiction. Doc. 11-2 at 3. The United States Code contains no such ...


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