United States District Court, E.D. Michigan, Southern Division
BRIDGEWATER CAPITAL TRUST and BANK OF AMERICA TRUSTEE, Plaintiffs,
BANK OF AMERICA, Defendant.
OPINION AND ORDER SUMMARILY DISMISSING
V. PARKER U.S. DISTRICT JUDGE
filed this lawsuit pursuant to 42 U.S.C. § 1983 on May
2, 2018, alleging that Defendant Bank of America violated
their constitutional rights. Plaintiffs paid the filing fee
for this action. The purported basis for jurisdiction is that
the Complaint presents a question of federal law. (Compl. at
1, ECF No. 1 at Pg ID 1.)
district court may, at any time, sua sponte dismiss
a complaint for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure when
the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no
longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999) (citations omitted).
Plaintiffs' § 1983 claim against Defendant is not
Complaint, Plaintiffs allege that in 2014 and 2015 they began
to foreclose and seize Defendant's real and intellectual
property as a result of defaulted international trading
contracts. (Compl. ¶ 1, ECF No. 1 at Pg ID 2.)
Plaintiffs further allege that the foreclosure process was
reported to the United States Internal Revenue Service
(“IRS”) and Department of Treasury. (Id.
¶ 2.) During the foreclosure, Plaintiffs, through their
Trustee Duane L. Berry, seized several physical properties
and bank branches. (Id. ¶ 3.)
allege that Berry earned taxable income of $922, 291, 924.00
for his role as trustee. (Id. ¶ 5, Pg ID 3.)
Plaintiffs further allege:
Trustee Berry has stated to the Plaintiff, that as [sic] no
fault of his own, the Defendant has failed to relinquish full
control of trust property over to him and as a direct result
the Plaintiff has suffered a loss of $922, 291.924.00
(Id. ¶ 6.) Plaintiffs reported the loss to the
IRS, but claim Defendant failed to report its financial
obligation to Plaintiffs to the IRS. (Id.
¶¶ 9, 10.) Plaintiffs appear to be claiming that
this caused them to suffer tax consequences of about $21,
000.00. (Id. ¶ 6.) Plaintiffs assert that
“Defendant's refusal to ‘settle accounts'
cannot be justified by a rational basis as it causes a severe
and illegal tax consequence, violates Plaintiffs'
constitutional rights, and undermines the legality of the
entire federal tax system …” (Id. .
plaintiff alleging a claim under § 1983 “must
demonstrate a deprivation of a right secured by the
Constitution or laws of the United States caused by a
person acting under color of state law.”
Westmoreland v. Sutherland, 662 F.3d 714, 718 (6th
Cir. 2011) (emphasis added) (citing West v. Atkins,
487 U.S. 42, 48 (1988)). Generally, private parties like
Defendant are not state actors unless their actions are
“fairly attributable to the state.” See Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982);
Black v. Barberton Citizens Hosp., 134 F.3d 1265,
1267 (6th Cir. 1998). A private party that has conspired with
state officials to violate constitutional rights also
qualifies as a state actor and may be held liable under
§ 1983. Moore v. City of Paducah, 890 F.2d 832,
834 (6th Cir. 1989); Hooks v. Hooks, 771 F.2d 935,
943 (6th Cir. 1985).
Sixth Circuit Court of Appeals recognizes three tests for
determining whether a private party's conduct is fairly
attributable to the state: the public function test, the
state compulsion test, and the nexus test. Am. Postal
Workers Union, AFL-CIO v. City of Memphis, 361
F.3d 898, 905 (2004) (citing Wolotsky v. Huhn, 960
F.2d 1331, 1335 (6th Cir. 1992)). In summary,
[t]he public function test requires that the private entity
exercise powers which are traditionally exclusively reserved
to the state. The state compulsion test requires proof that
the state significantly encouraged or somehow coerced the
private party, either overtly or covertly, to take a
particular action so that the choice is really that of the
state. Finally, the nexus test requires a sufficiently close
relationship between the state and the private actor so that
the action taken may be attributed to the state.
Id. (quotation marks and internal citations
omitted). The allegations in Plaintiffs' Complaint in no
way suggest conduct by Defendant that is “fairly
attributable to the state” under any of these tests.
Nor do Plaintiffs' allegations suggest a conspiracy
between Defendant and state officials.
the Court concludes that Plaintiffs' § 1983 claim
against Defendant is frivolous and must be
IT IS ORDERED that Plaintiffs' Complaint
is summarily dismissed pursuant to Federal Rule of Civil
IS FURTHER ORDERED that the Clerk of the Court shall
forthwith refund Plaintiffs' filing fee of $400 (Receipt
No. DET113590), by issuance of a check payable to Maurice D.
Boraders, to be sent to ...