Chavez v. United States, CIV 21-0872-JB-SCY

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Parties: NATTLEE NICHOLE CHAVEZ, Plaintiff, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF AGRICULTURE and JOHN DOES 1-4, Defendants.
• Docket Number: CIV 21-0872-JB-SCY
• Decision Date: 25 October 2021

NATTLEE NICHOLE CHAVEZ, Plaintiff,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF AGRICULTURE and JOHN DOES 1-4, Defendants.

No. CIV 21-0872-JB-SCY

United States District Court, D. New Mexico

October 25, 2021

Nattlee Nichole Chavez Espanola, New Mexico Plaintiff pro se

MEMORANDUM OPINION AND ORDER OF DISMISSAL

THIS MATTER comes before the Court, under rule 12(b)(6) of the Federal Rules of Civil Procedure, on the Plaintiff's Complaint for Damages Caused by Fraud, Deprivation of Civil Rights and Other Tortious Conduct, filed September 3, 2021 (Doc. 1)(“Complaint”). Plaintiff Nattlee Nichole Chavez appears pro se. For the reasons set out below, the Court will dismiss this case without prejudice for failure to state a claim upon which relief can be granted.

PROCEDURAL BACKGROUND

Chavez alleges that United States Department of Agriculture (“USDA”) employees “executed and issued and transferred a promissory note and mortgage in Chavez's name when she was only 7 years old.” Complaint ¶ 9, at 4. Plaintiff also alleges that “the USDA initiated a complaint for foreclosure action against Chavez on the Loan Documents, ” and “report[ed] the foreclosure action to third parties such as the national credit bureaus, Internal Revenue Service, and other government agencies directly caus[ing] financial devastation for Chavez in all aspects of life from the age of 18 (when she became aware) into young adulthood as [a] 26 year old woman.” Complaint ¶¶ 12-13, at 4. Chavez asserts claims pursuant to the Federal Tort Claims

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Act, 28 U.S.C. § 1346(b), the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617, 42 U.S.C. § 1983, and criminal statutes regarding bank fraud, identity theft, and deprivation of rights under color of law.

The Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court of the District of New Mexico, notified Chavez:

Plaintiff has not met her burden of alleging facts showing that the Court has jurisdiction over her claim pursuant to the Federal Tort Claims Act (“FTCA”) Although Plaintiff alleges she “has satisfied the notice requirements set forth in the FTCA, ” she has not set forth factual allegations clearly stating when she found out the USDA executed a promissory note and mortgage in her name, when the USDA initiated a foreclosure action against Plaintiff and when Plaintiff found out about the foreclosure action, when the USDA notified other third parties of the foreclosure action and when Plaintiff found out about the notification, when she presented her tort claim in writing to the USDA, the contents of her claim, or when the USDA mailed its notice of final denial of Plaintiff's claim to Plaintiff

The Complaint also fails to state a claim pursuant to the FTCA against the USDA and the individual defendants because “[t]he United States is the only proper defendant in a federal tort claims action.” Gaines v Pearson, 516 Fed. App'x 724, 726 (10th Cir. 2013).

. . . .

The Complaint fails to state a claim for fraud. . . . [because] [t]he Complaint does not identify the false representations, the contents of those false statements, the persons making the false statements, the date they made the false statements or Plaintiff's detrimental reliance on the false statements [as required by rule 9 of the Federal Rules of Civil Procedure]. . . .

The Complaint fails to state a claim upon which relief can be granted pursuant to 18 U.S.C. § 1344, Bank fraud, 18 U.S.C. § 1028A, Aggravated identity theft, and 18 U.S.C. § 242, Deprivation of rights under color of law, because 18 U.S.C. § 1344, 18 U.S.C. § 1028A, and 18 U.S.C. § 242 are criminal statutes. “[C]riminal statutes do not provide for private civil causes of action.” Kelly v. Rockefeller, 69 Fed. App'x 414, 415-416 (10th Cir. 2003); see Diamond v. Charles, 476 U.S. 54, 64 (1986) (“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”). . . .

The Complaint fails to state a claim pursuant to the Real Estate Settlement Procedures Act (“RESPA”). Plaintiff alleges that when the “USDA engaged settled [sic] a real-estate transaction and received the benefit of interest and fees related to a federal mortgage issued to the minor child [Plaintiff], ” Complaint ¶ 64, at 12, the USDA violated a provision of RESPA which states in relevant part:

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No person shall give and no person shall accept any fee, kickback or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.

12 U.S.C. § 2607(a). Under RESPA “the term ‘person' includes individuals, corporations, associations, partnerships, and trusts.” 12 U.S.C. § 2602(5). “Person” does not include federal agencies such as the USDA.

. . . .

The Complaint fails to state a Bivens claim against the United States and the USDA [because] A “Bivens claim can be brought only against federal officials in their individual capacities. Bivens claims cannot be asserted directly against the United States, federal officials in their official capacities, or federal agencies.” ... The Complaint currently fails to state a claim upon which relief can be granted pursuant to Bivens against the John Doe Defendants because the factual allegations do not explain what each individual John Doe Defendant did.

Memorandum Opinion and Order for Amended Complaint at 2-5, Chavez v. United States, No. No. CIV 21-0872 SCY, 2021 U.S. Dist. LEXIS 175626 at *2-7 (D.N.M. Sep. 14, 2021), filed September 14, 2021 (Doc. 6)(“MOO”)(citations omitted). Magistrate Judge Yarbrough ordered Chavez to file an amended complaint and notified Chavez that “[f]ailure to timely file an amended complaint may result in dismissal of this case.” MOO at 6. Chavez did not file an amended complaint by the October 5, 2021, deadline.

LAW REGARDING PRO SE LITIGANTS

When a party proceeds pro se, a court construes his or her pleadings liberally and holds them “to a less stringent standard than [that applied to] formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[I]f the Court can reasonably read the pleadings to state a valid claim on which [the plaintiff] could prevail, it should do so despite [his or her] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax

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and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d at 1110. The Court will not, however, “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d at 1110. “[P]ro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).

LAW REGARDING SUA SPONTE DISMISSAL UNDER RULE 12(b)(6)

Rule 12(b)(6) authorizes the court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(“Twombly”). A district court should not dismiss a pro se complaint under rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Fed.R.Civ.P. 12(b)(6). While dismissal under rule 12(b)(6) generally follows a motion to dismiss, a court's sua sponte dismissal of a complaint under rule 12(b)(6) is not an error if it is “‘‘patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.'” Curley v. Perry, 246 F.3d at 1282 (quoting Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991)).

LAW REGARDING 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .

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42 U.S.C. § 1983. Section 1983 creates only the right of action and it does not create any substantive rights; substantive rights must come from the Constitution of the United States of America or from a federal statute. See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002)(“[S]ection 1983 ‘did not create any substantive rights, but merely enforce[s] existing constitutional and federal statutory rights . . . .'” (second alteration added by Nelson v. Geringer)(quoting Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1197 (10th Cir. 1998))). Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). The Court has noted:

[A] plaintiff “must establish (1) a violation of rights protected

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