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Kisner v. Bank of America

United States District Court, Second Circuit

October 29, 2013

JOSHUA KISNER, Plaintiff,
v.
BANK OF AMERICA, Defendant.

JOSHUA KISNER Plaintiff, pro se.

ORDER and REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis ("IFP"), filed by pro se plaintiff, Joshua Kisner. (Dkt. Nos. 1, 2).

I. IFP Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). This court agrees, and finds that plaintiff is financially eligible for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint

Plaintiff filed this complaint using a form for civil rights actions pursuant to 42 U.S.C. § 1983. (Compl.) (Dkt. No. 1). Plaintiff alleges that he lost his job in the summer of 2008, and he informed an "agent" of the Bank of America ("BOA"). (Compl. ¶ 4). Plaintiff states that the BOA "closed on loan [sic], " that he lost his home through foreclosure, and he was "evicted" on November 23, 2009. Plaintiff claims that he became disabled due to the loss of his home. ( Id. )

Plaintiff then states that on April 19, 2013, federal regulators found the BOA "culpable in deficient Mortgage Servicing and foreclosure processes.'" Plaintiff alleges that on June 10, 2013, he was "awarded [a] class action settlement" through Virginia's Attorney General and National Mortgage Settlement. ( Id. ) The complaint contains only one cause of action:

Whereas, Bank of America was deficient in my mortgage servicing and foreclosure processes.

(Compl. ¶ 5). Plaintiff states that he seeks $135, 000 restitution. (Compl. ¶ 6). He appears to break this amount down into $128, 000 (the remainder of the home loan) and $7, 000 ("pain and suffering"). ( Id. ) Attached to plaintiff's complaint is the form that he received entitled "Independent Foreclosure Review, " dated April 19, 2013 and a letter from the Attorney General of the State of Virginia. (Compl. Ex. 1) (Dkt. No. 1-1). These documents indicate that ...


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