Lozano v. Bank of the Ozarks

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JESSIE LOZANO,

Plaintiff,

v. Case No. 2:20-cv-932-JES-NPM

BANK OF THE OZARKS and BANK OZK,

Defendants.

ORDER OF DISMISSAL

This cause is before the Court on a civil rights complaint

filed by Plaintiff Jessie Lozano (Plaintiff) on November 24, 2020.

(Doc. 6). Plaintiff also filed a motion to proceed in forma

pauperis. (Doc. 2). Because Plaintiff seeks to proceed as a

pauper, the Court must screen his complaint under 28 U.S.C. §

1915(e)(2).

After considering the facts as alleged by Plaintiff and

reviewing each of his claims, the Court concludes that this action

must be dismissed because Plaintiff has not stated a claim upon

which relief may be granted. Plaintiff’s motion to proceed in

forma pauperis is thus denied as moot, and Plaintiff will not be

assessed a filing fee.

I. Complaint

Plaintiff asserts that Defendant Bank of the Ozarks1 violated

the Fourth Amendment, Federal Deposit Insurance Act Rights, Gramm-

Leach-Bliley Act Rights, and Due Process Clause of the United

States Constitution by allowing the Charlotte County Sheriff’s

Office, the State Attorney’s Office, and Circuit Court Judges

Allesandroni and Donald Mason to access his business bank account

and review his customers’ personal information. (Doc. 1 at 5).

He asserts that the “subpoena” used by law enforcement to gain

access to his account was invalid because it was forged. (Id. at

6).

Plaintiff has unsuccessfully attempted to press criminal

charges on “everyone involved” in his underlying criminal case.

(Doc. 1 at 6–7). He now asserts that, by allowing the State to

access his business account, Defendant Bank of the Ozarks violated

federal banking regulations that could expose Plaintiff to legal

issues from his customers. (Id. at 7). He seeks $100,000 in

damages and court costs. (Id. at 8).

1 Plaintiff names the same defendant twice. First as “Ozarks,

Bank of the” and next as “OZK Bank.” (Doc. 1 at 3). The addresses

are identical, and Plaintiff only refers to one defendant

throughout his complaint. The Court will refer to the defendant

as “Bank of the Ozarks.”

II. Legal Standards

A federal district court is required to review a civil

complaint filed in forma pauperis and to dismiss any such complaint

that is frivolous, malicious, or fails to state a claim upon which

relief may be granted. 28 U.S.C. § 1915(e)(2). In essence,

section 1915(e)(2) is a screening process to be applied on the

Court’s initiative at any time during the proceedings. The

mandatory language of 28 U.S.C. § 1915 applies to all proceedings

in forma pauperis. The section provides:

Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court

shall dismiss the case at any time if the court

determines that-

(A) the allegation of poverty is untrue;

or

(B) the action or appeal-

(i) is frivolous or malicious;

(ii) fails to state a claim on which

relief may be granted; or

(iii)seeks monetary relief against

a defendant who is immune from

such relief.

28 U.S.C. § 1915(e)(2). In making these determinations, all

factual allegations in the complaint must be viewed as true. Brown

v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, the

Court must read the plaintiff’s pro se allegations in a liberal

fashion. Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

A complaint may be dismissed as frivolous under §

1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is

frivolous as a matter of law where the defendants are immune from

suit or the claim seeks to enforce a right that clearly does not

exist. Id. at 327.

Dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to

state a claim are governed by the same standard as Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Mitchell v. Farcass, 112

F.3d 1483, 1485 (11th Cir. 1997). Under Rule 12(b)(6), a complaint

may be dismissed if the facts as pleaded do not state a claim to

relief that is plausible on its face. See Bell Atl. Corp v.

Twombly, 550 U.S. 544, 570 (2007) (because the plaintiffs had not

“nudged their claims across the line from conceivable to plausible,

their complaint must be dismissed”).

III. Analysis

Plaintiff attributes liability to Defendant Bank of the

Ozarks under the Fourth Amendment, the Federal Deposit Insurance

Act Rights, the Gramm-Leach- Bliley Act Rights, and the Due Process

Clause. (Doc. 1 at 5). However, he has not stated an actionable

claim under any of these provisions.

A. Plaintiff does not state a constitutional claim under

42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 imposes liability on one who, under

color of state law, deprives a person “of any rights, privileges,

or immunities secured by the Constitution and laws[.]” 42 U.S.C.

§ 1983. To state a claim under section 1983, a plaintiff must

allege that: (1) a defendant deprived him of a right secured

under the Constitution or federal law; and (2) such deprivation

occurred under color of state law. Arrington v. Cobb County, 139

F.3d 865, 872 (11th Cir. 1998). Presumably, Plaintiff grounds his

Fourth Amendment and Due Process claims on his assertion that the

State used a “forged” document to gain access to his business bank

account. (Doc. 1 at 6). However, Plaintiff names only the Bank

of the Ozarks as a defendant. (Id. at 3).

As a general matter, private actors (such as banks) are not

proper defendants in section 1983 actions. Am. Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-color-of-

state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or wrongful.”) (internal

quotations omitted). Nevertheless, private actors may be liable

under section 1983 if they conspire with a state actor to violate

a plaintiff’s civil rights. Dennis v. Sparks, 449 U.S. 24, 27

(1980) (“[T]o act under color of’ state law for § 1983 purposes

does not require that the defendant be an officer of the State. It

is enough that he is a willful participant in joint action with

the State or its agents.”). To succeed on such a claim, “the

plaintiff must plead in detail, through reference to material

facts, the relationship or nature of the conspiracy between the

state actor(s) and the private persons.” Harvey v. Harvey, 949

F.2d 1127, 1133 (11th Cir. 1992).

Even if the subpoena or search warrant used by law enforcement

to gain access to Plaintiff’s business account was forged,

Plaintiff does not allege that Defendant Bank of the Ozarks was

aware of the document’s invalidity nor does he suggest that the

defendant conspired with the police to provide access to the

account. Plaintiff’s bare allegations against Defendant Bank of

the Ozarks regarding its acquiescence to an invalid warrant does

not adequately plead conspiracy with law enforcement. Rather, it

is a mere conclusion that need not be accepted as true. See

Twombly, 550 U.S. at 555 (noting that courts “are not bound to

accept as true a legal conclusion couched as a factual

allegation.”) (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)).

Plaintiff has not sufficiently stated a constitutional claim

against Defendant Bank of the Ozarks. Plaintiff’s Fourth

Amendment and Due Process Clause claims are therefore dismissed

for failure to state a claim upon which relief may be granted. 28

U.S.C. § 1915(e)(2)(B)(ii).

B. Neither the Federal Deposit Insurance Act not the

Gramm-Leach-Bliley Act provide Plaintiff a private

right of action against Defendant Bank of the Ozarks.

Plaintiff asserts, without detail or explanation, that

Defendant Bank of the Ozarks is liable for monetary damages under

the Federal Deposit Insurance Act (FDIA) and the Gramm-Leach-

Bliley Act (GLBA). (Doc. 1 at 5.)2 However, “the fact that a

federal statute has been violated and some person harmed does not

automatically give rise to a private cause of action in favor of

that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568

(1979) (quotation omitted). Where, as here, a private citizen

relies on a federal statute as a basis for federal-question

jurisdiction, that statute must explicitly contain (or implicitly

create) a private cause of action; otherwise, a federal court does

not have subject matter jurisdiction to hear the dispute. Merrell

Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817 (1986);

Touche, 442 U.S. at 575. Without congressional intent to create

a private cause of action on the basis of a statute, one does not

exist, and this Court may not create one on its own. See Alexander

v. Sandoval, 532 U.S. 275, 286 (2001).

Even liberally construing Plaintiff’s complaint, he has not

alleged a cognizable violation of the FDIA. In fact, he does not

identify the specific regulation that was purportedly violated.

Nor does he identify—and the Court has not found—any FDIA

2 The Federal Deposit Insurance Act (FDIC Act) governs the

Federal Deposit Insurance Corporation (FDIC). 12 U.S.C. § 1811

et seq. The Gramm-Leach Bliley Act, 15 U.S.C. § 6801, emphasizes

the need for protecting a consumer’s privacy and confidentiality

of nonpublic personal information. It also provides that the

GLBA’s laws and regulations are enforced by federal and state

authorities. 15 U.S.C. § 6805(a).

regulation that creates an express or implied private right of

action. Accordingly, Plaintiff’s FDIA claim is dismissed for

failure to state a claim upon which relief may be granted. 28

U.S.C. § 1915(e)(2)(B)(i), (ii)

Likewise, federal courts have recognized that there is no

private right of action under the Gramm-Leach-Bliley Act. See

e.g., Dunmire v. Morgan Stanley DW Inc., 475 F.3d 956, 960 (8th

Cir. 2007) (recognizing that “[n]o private right of action exists

for an alleged violation of the GLBA”); Owens-Benniefield v.

Nationstar Mortgage LLC, 258 F.Supp.3d 1300, 1318–19 (M.D. Fla.

2017) (collecting cases and stating that “courts across the country

have held that no private right of action exists for violations of

the GLBA, whose text indicates that it is to be enforced by Federal

functional regulators, the State insurance Authorities, and the

Federal Trade Commission”) (internal quotation marks omitted).

Therefore, even if Plaintiff’s allegations fell within the

GLBA’s prohibitions—an issue not considered by this Court—

Plaintiff would have no cause of action under its provisions.

Plaintiff’s GLBA claims are dismissed for failure to state a claim

upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i),

(ii).

IV. Conclusion

The facts set forth by Plaintiff do not state a claim upon

which relief may be granted. Defendant Bank of the Ozarks is not

a “state actor” under 42 U.S.c. § 1983, and Plaintiff has not

identified a federal statute conferring federal jurisdiction over

his statutory claims. The Court finds that amendment of the

complaint would be futile, and this case will be dismissed. See

Watkins v. DeJesus, 786 F. App’x 217, 2019 (11th Cir. 2019)

(district court did not err by denying leave to amend “because the

complaint as amended would still be properly dismissed”).

Accordingly, it is now ORDERED:

1. All claims against Defendant Bank of the Ozarks are

DISMISSED WITHOUT PREJUDICE for failure to state a claim

upon which relief may be granted.

2. Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

is DENIED as moot, and Plaintiff is not assessed a filing

fee.

3, Plaintiff’s motion to change venue (Doc. 7) is DENIED as

moot.

4, The Clerk of Court is directed to terminate all pending

motions and deadlines, enter judgment accordingly, and

close this case.

DONE AND ORDERED in Fort Myers, Florida on July 21, 2021.

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JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies furnished to:

Counsel of Record

Unrepresented Parties