United States District Court, W.D. Arkansas, Fayetteville Division
JACQUALYNN GARRISON and OSAMAH A. BAKRI PLAINTIFFS
ROCK CREEK HOLDING, LLC; WADE A. WRIGHT; CHIEF OF POLICE JON SIMPSON; SHERIFF SEAN HOLLOWAY; ROBERT M. WILSON; LESLIE N. MANN; DEUTSCHE BANK NATIONAL TRUST COMPANY; and OCWEN FINANCIAL CORPORATION/OCWEN LOAN SERVICING DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
Jacqualynn Garrison and Osamah A. Bakri,  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
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.
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.
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.
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).
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).
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
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.
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
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.
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. ...