Opinion
CASE NO. 5:11cv1403.
July 22, 2011
MEMORANDUM OF OPINION AND ORDER
Plaintiffs John G. Vecchio, Elizabeth A. Vecchio, and the Andro Children's Trust, bring this pro se action against Defendant Credit Based Asset Servicing ("Credit Servicing"), asserting violation of John G. Vecchio's right to due process. This claim is based on the following allegations: Credit Servicing filed a complaint in foreclosure against Elizabeth Vecchio and the Andro Children's Trust. John G. Vecchio was not included as a defendant in the foreclosure action, filed in the Summit County Court of Common Pleas, even though John and Elizabeth are married. A judgment of foreclosure was nevertheless granted on September 14, 2010. Plaintiff John Vecchio seeks an injunction halting the sale of the property.
See Credit Based Asset Servicing and Securitization c/o Litton Loan Servicing v. Elizabeth Vecchio, Summit County Common Pleas Court Case No. CV-2007-12-8434,
While pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court may dismiss an action sua sponte if the complaint is so "implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion" as to deprive the court of jurisdiction. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). For the following reasons, the Court finds that the claims asserted in this action satisfies these criteria.
Construing the Complaint liberally, it appears Plaintiffs are seeking relief under 42 U.S.C. § 1983 for the asserted violation of their constitutional rights. In Parratt v. Taylor, 451 U.S. 527, 535 (1981), the Supreme Court stated that "the initial inquiry [in a section 1983 action] must focus on whether the two essential elements [. . .] are present: (1) whether the conduct complained of was committed by a person acting under color of State law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." The person acting under color of law is usually a State or local government official or employee. Doyle v. Schumann, No. 1:07CV3684, 2008 WL 397588, at * 3 (N.D. Ohio Feb. 11, 2008).
A plaintiff does not have a cause of action under § 1983 against a private party no matter how discriminatory or wrongful the party's conduct. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Given the most liberal construction, there is simply no suggestion in the Complaint that Credit Servicing, a private party, acted under color of state law.
For the foregoing reasons, this action must be and is hereby dismissed.