Garrison v. Rock Creek Holding, LLC

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Plaintiffs, Jacqualynn Garrison and Osamah A. Bakri, ^[1] have filed this action for injunctive relief alleging that the Court has federal question jurisdiction. This action is an attempt to cease an ongoing foreclosure action against property located at 1201 S.W. 2nd Street in Bentonville, Arkansas, and to resist an unlawful detainer action. Plaintiffs operate the property as a bed and breakfast. In addition to the Complaint, Plaintiffs have filed a motion for temporary restraining order or preliminary injunction (Doc. 4) and a motion to exercise the right for arbitration (Doc. 7). Plaintiffs name as Defendants: Rock Creek Holding, LLC; Wade A. Wright; Chief of Police Jon Simpson; Sheriff Sean Holloway; Robert M. Wilson; Leslie N. Mann; Duetsche Bank National Trust Company; and Ocwen Financial Corporation/Ocwen Loan Servicing.

         The order and decree of foreclosure was entered on May 12, 2016, by the Circuit Court of Benton County, No. CV-15-1177-4. On January 9, 2019, a three-day notice to vacate the property was posted on the front door by Defendant Wright. An unlawful detainer action was filed in the Circuit Court of Benton County on January 15, 2019, No. 04-CV-19-104.

         Plaintiffs have on two other occasions filed actions in this Court involving the same issues. The case of Garrison and Bakri v. Deutsche Bank National Trust, et a/., Civil No. 5:18-CV-05084, was filed on May 17, 2018, and dismissed, prior to service of process being issued, for lack of subject matter jurisdiction on June 25, 2018. Garrison and Bakri v. Robert M. Wilson, et a/., Civil No. 5:18-CV-05121, was filed the following day, June 26, 2018, and dismissed for lack of subject matter jurisdiction on June 27, 2018.

         Two Motions to Dismiss have been filed (Docs. 8, 11). Sheriff Holloway asks in his motion (Doc. 8) that the case be dismissed under Rule 8(a) and Rule 12(b)(6) of the Federal Rule of Civil Procedure for failure to state claims upon which relief may be granted. Chief Simpson in his motion (Doc. 11) maintains the case is subject to dismissal pursuant to Rules 8(a) and 12(b)(6) for failure to state a claim and under Rule 12(h)(3) for lack of subject matter jurisdiction.

         I. LEGAL STANDARD

         Rule 8(a) contains the general pleading rules and requires a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "In order to meet this standard and survive a motion to dismiss under Rule 12(b)(6), 'a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678. While the Court will liberally construe a pro se complaint, the plaintiff must allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

         Federal courts are courts of limited jurisdiction. See, e.g., Godfrey v. Pulitzer Publ'g Co., 161 F.3d 1137, 1141 (8th Cir. 1998). "The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)) (alteration in original)). If it appears that jurisdiction is lacking, the Court will raise the issue sua sponte. Dieser v. Continental Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006).

         II. DISCUSSION

         Bakri alleges that federal subject matter jurisdiction exists in this case. To establish this, he refers to the following sources of federal law that allegedly underlie his claims: the Fourth Amendment to the United States Constitution; 28 U.S.C § 1691; 12 U.S.C. § 3708; 18 U.S.C. §§ 221 & 242; 15 U.S.C. § 1692(e); 42 U.S.C. §§ 1986 & 1988; and 28 U.S.C. § 2201. The Fourth Amendment to the United States Constitution prohibits unlawful searches and seizures by individuals acting under color of law. Claims for violation of constitutional law may be brought under 42 U.S.C. § 1983. To state a § 1983 claim, a plaintiff must allege a violation of a constitutional right by a person acting under color of state law. Private parties do not become state actors merely by use of state foreclosure proceedings. Harper v. Federal Land Bank of Spokane, 878 F.2d 1172, 1178 (9th Cir. 1989) ("[T]he fact that a state permits the use of foreclosure procedures and subsequent sheriff sales as the execution of a judgment is not sufficient to constitute state action."). Moreover, any actions to remove Bakri and Garrison from the property were taken in accordance with state law. There has been no unlawful search or seizure within the meaning of the Fourth Amendment.

         Section 1691 of Title 28 provides that "[a]ll writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof." 28 U.S.C. § 1691. This statute does not grant subject matter jurisdiction. Instead, it merely dictates the formalities required when writs or process are issued.

         Section 3708 of Title 12 is part of a uniform federal foreclosure procedure that applies to the foreclosures of multifamily mortgages by the Secretary of Housing and Urban Development. 12 U.S.C. § 3701 et seq. Section 3708 merely sets forth the procedure for service of the notice of default and foreclosure sale. Clearly, Plaintiffs may not rely on this provision.

         Next, 18 U.S.C. § 221, which has been renumbered as § 216, establishes a civil cause of action in favor of the United States Attorney General "against any person who engages in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title." 18 U.S.C. § 216(b). The person may be subject to civil penalties for the amount of compensation the person received for the prohibited conduct. Id. Plaintiffs may not rely on this provision in advancing their claims.

         Section 242 of Title 18 defines a criminal offense. 18 U.S.C. § 242. There is no private cause of action under this statute. See, e.g., Rockefeller v. United States Court of Appeals Office, for Tenth Circuit Judges,248 F.Supp.2d 17 (D.D.C. 2003) (observing that 18 U.S.C. ...