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Coon v. Trustco Bank Corp.

November 15, 2007

DONALD J. COON, JR., PLAINTIFF,
v.
TRUSTCO BANK CORP.; TD-BANKNORTH, INC.; AND SOCIAL SECURITY ADMINISTRATION, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION and ORDER

I. Background

Presently before the Court is a pro se complaint filed by plaintiff Donald J. Coon, Jr., together with an in forma pauperis application.*fn2 Dkt. Nos. 1-2. In his pro se complaint, Coon claims that, after he directed the Social Security Administration to stop direct deposits of all of his Social Security checks into Trustco Bank Corp., it "negligently" failed to do so.

Dkt. No. 2 at 3-4. Coon alleges that Trustco Bank Corp. improperly levied fees against Coon's exempt social security funds. Id. at 2-3. Finally, Coon alleges that TD-Banknorth, Inc. accepted for deposit a post-dated check written on Coon's account one week before the check was dated, resulting in Coon's bank account being overdrawn. Id. at 4-5. Plaintiff seeks monetary damages. For a more complete statement of Coon's claims, refer to the complaint.

II. Discussion

Turning to Coon's in forma pauperis application, the Court finds that Coon may properly commence this action in forma pauperis because Coon sets forth sufficient economic need. Dkt. No. 1.

Since the Court has found that Coon meets the financial criteria for commencing this action in forma pauperis, the Court must now consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (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)(B).*fn3 Thus, the court has a responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis.*fn4

See id. Although the court has a duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)(per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed. See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (District Court may dismiss frivolous complaint sua sponte notwithstanding fact the plaintiff has paid statutory filing fee); Wachtler v. Herkimer County, 35 F.3d 77, 82 (2d Cir. 1994) (District Court has power to dismiss case sua sponte for failure to state a claim).

A. Social Security Administration

Coon's complaint against the Social Security Administration may, in part, be filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court recognized an implied private cause of action for damages against federal officers who violate a citizen's constitutional rights. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001) (discussing the origin of Bivens claims). However, a plaintiff must assert a Bivens claim against an officer individually, not against the agency itself or the United States. See Carlson v. Green, 446 U.S. 14, 21 (citations and footnote omitted). A "Bivens action may not be brought against the United States or agencies of the United States." Saber v. Social Security Administration, No. CV 05-373-HU, 2005 WL1566645, at *3 (D.Ore. June 23, 2005) (dismissing Bivens action against the Social Security Administration) (citing FDIC v. Meyer, 510 U.S. 471, 486 (1994) (no Bivens cause of action for damages against federal agencies); Cato v. United States, 70 F.3d 1103, 1110 (9th Cir.1995) (no Bivens-type claim exists against the United States). Thus, Coon's Bivens claims against the Social Security Administration must be dismissed.

Even if Coon had named an individual federal official as a defendant herein, Coon's action would still be dismissed. Courts are generally hesitant to extend the reach of Bivens actions when "the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration...." Schweiker v. Chilicky, 487 U.S. 412, 423. (1988).

The Social Security Act sets forth an elaborate scheme of remedial mechanisms. The Social Security Act makes no provisions for remedies in money damages from officials whose conduct leads to wrongful denial of benefits. Chilicky, 487 U.S. at 424. In Chilicky, the Supreme Court concluded that because the Congressional scheme for dealing with social security disability claims provides comprehensive safeguards and remedies to claimants under the system, an implied Bivens action for further damages should not lie. Chilicky, 497 U.S. at 425-27.

Moreover, Coon is advised that because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994) ("Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived."); see also Schweiker v. Chilicky, 487 U.S. 412, 421 (1988) ("the purpose of Bivens is to deter the officer" and "[a]n ...


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