Opinion
4:22-CV-146-FL
02-13-2023
TIMOTHY BEST, Plaintiff, v. GREEN DOT CORPORATION, Defendant.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the application [DE #1] by Plaintiff Timothy Best to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by United States District Judge Louise W. Flanagan. For the reasons set forth below, the court grants Plaintiff's application to proceed in forma pauperis and recommends that Plaintiff's complaint be dismissed.
IFP MOTION
The standard for determining in forma pauperis status is whether “one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiff's affidavit, the court finds that Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiff's application to proceed in forma pauperis is ALLOWED.
DISCUSSION
I. Background
Plaintiff sues Defendant for violating the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401-3423; Section 326 of the USA PATRIOT ACT, Pub. L. No. 107-56, § 326, 115 Stat. 272, 317 (2001); and 31 C.F.R. § 1020.220, a regulation promulgated pursuant to Section 326 of the USA PATRIOT ACT. (Compl. [DE #1-1] at 4.)
Section 326 of the USA PATRIOT ACT amended 31 U.S.C. § 5318, a provision of the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq.
The gravamen of Plaintiff's complaint is that Defendant allowed another person to fraudulently obtain access to a personal prepaid debit card that Defendant issued for Plaintiff. (Compl. at 4.) Plaintiff alleges that Defendant allowed this other person access to his personal financial and identifying information, resulting in the other person exhausting the funds on the prepaid debit card which belonged to Plaintiff. (Id.) Plaintiff attempted to resolve the issue informally with Defendant but was dissatisfied with the outcome. (Id.) Plaintiff alleges that Defendant's actions in connection with this prepaid debit card violate the statutes and regulation referenced above and he seeks money damages as redress. (Id. at 3.)
II. Standard for Frivolity Review
Notwithstanding the determination that Plaintiff is entitled to IFP status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. In making the “inherently elastic” frivolity determination, Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004), the court may “apply common sense,” Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of suit as frivolous where complaint “failed to contain any factual allegations tending to support [plaintiff's] bare assertion”). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
III. Analysis
A. PATRIOT ACT and 31 C.F.R. § 1020.220 Claim
There is no private right of action under the Bank Secrecy Act, the USA PATRIOT ACT, or the implementing regulations. See generally Venture General Agency, LLC v. Wells Fargo Bank, N.A., No. 3:19-CV-2778-TSH, 2019 WL 3503109, at *6-7 (N.D. Cal. Aug. 1, 2019) (explaining that there is no private right of action under the Bank Secrecy Act because a defendant's liability for failure to comply with the statute is to the United States government). Accordingly, this claim should be dismissed for failure to state a claim upon which relief may be granted.
B. RFPA Claim
Congress passed the Right to Financial Privacy Act of 1978 [RFPA] partly in response to United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), which held that a bank customer has no Fourth Amendment expectation of privacy in records of his or her personal bank accounts. The operative section of the [RFPA] provides that ‘no Government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution' unless the government obtains a subpoena, a summons, a search warrant, or the customer's written consent, or unless the government submits a formal written request that complies with certain procedural requirements.Duncan v. Belcher, 813 F.2d 1335, 1337-38 (4th Cir. 1987) (citing 12 U.S.C. § 3402); see also Bond v. U.S. Postal Serv. Fed. Credit Union, 164 F.Supp.3d 740, 744 (D. Md. 2015) (summarizing the RFPA). The RFPA prohibits financial institutions from disclosing customers' financial records to any “Government authority” except in accord with other provisions in the RFPA. 12 U.S.C. § 3402; see also Bond, 164 F.Supp.3d at 744; Mead v. City First Bank of DC, N.A., 616 F.Supp.2d 78, 80-81 & n.2 (D.D.C. 2009) (explaining that the RFPA only prohibits disclosure to government entities). “[A]llegations that the defendants made disclosures of [the plaintiff's] financial records to private parties do not state claims under the RFPA.” Mead, 616 F.Supp.2d at 80 n.2.
Plaintiff's complaint contains no factual allegations from which it may plausibly be inferred that Defendant disclosed Plaintiff's financial records to a government entity. (See Compl. at 4.) Accordingly, this claim should be dismissed for failure to state a claim upon which relief may be granted. See Mead, 616 F.Supp.2d at 80 & n.2.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. Plaintiff is hereby advised as follows:
You shall have until March 3, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D. N.C. Dec. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).