Collins v. Sovereign Bank

• Decision Date: 03 April 2007
• Docket Number: No. 3:06cv1716 (JBA).,3:06cv1716 (JBA).
• Citation: 482 F.Supp.2d 235
• Court: U.S. District Court — District of Connecticut
• Parties: Herschel COLLINS, Plaintiff, v. SOVEREIGN BANK, et al., Defendants.

482 F.Supp.2d 235

Herschel COLLINS, Plaintiff, v. SOVEREIGN BANK, et al., Defendants.

No. 3:06cv1716 (JBA).

United States District Court, D. Connecticut.

April 3, 2007.

COPYRIGHT MATERIAL OMITTED

Herschel Collins, Manchester, CT, pro se.

Robert W. Allen, Tyler, Cooper & Alcorn, Alan M. Soloway, U.S. Attorney's Office, New Haven, CT, Kerry Marc Wisser, Weinstein & Wisser, P.C., Kimberly J. Boneham, Town of West Hartford, West Hartford, CT, Dirk S. Roberts, Office of Chief Counsel Office of Thrift Supervision, Washington, DC, Mark F. Kohler, Attorney General's Office, Lawrence L. Connelli, Stacey Francoline, Regnier, Taylor, Curran & Eddy, Cityplace, Elliot B. Spector, Noble, Spector, Young & O'Connor, Hartford, CT, for Defendants.

RULING ON MOTIONS TO DISMISS [DOCS. # 23, 55, 60, 61, 63]

ARTERTON, District Judge.

Plaintiff Herschel Collins brought this action pro se pursuant to 42 U.S.C. § 1983 against multiple defendants, including the United States Treasury Department, Treasury Secretary Henry Paulson, and Office of Thrift Supervision employees Richard Denby¹ and David Rollins (the "Treasury Defendants"); the Office of Thrift Supervision ("OTS"); Connecticut Attorney General Richard Blumenthal, David Rivers of the Connecticut Attorney General's office, and Richard Reid of the Connecticut State Insurance Department (the "State Defendants"); the Town of West Hartford, the West Hartford Police Department, Benjamin Delmonte, and Officer Swank (the "West Hartford Defendants"); and Hoffman Ford, Bradley Hoffman, and Billy Genereux (the "Hoffman Ford Defendants"). See Compl. [Doc. # 3]; More Def. Stmt. [Doc. # 44]. Against these defendants plaintiff asserts multiple claims, which will be discussed in more detail below, including false arrest, malicious prosecution, denial of equal protection and violation of Title II of the Americans with Disabilities Act for failure to act on certain complaints made by plaintiff, and fraud and/or breach of contract. The above groups of defendants now move to dismiss, arguing, inter alia, lack of jurisdiction and failure to state claims upon which relief can be granted. See [Does. # 23, 55, 60, 61, 63]. For the reasons the follow, these motions will be granted.²

I. Treasury Defendants [Doc. # 60]

As against the Treasury Defendants, the Complaint appears to allege a claim for failure to protect plaintiff "from the abuse of one federally regulated bank, licensed as Sovereign Bank, fraud, deception, auto theft and bank account being compromised." Compl. at 5-6, 14. It seeks compensatory damages against each Treasury Defendant in the amount of $100,000 and $300,000 in punitive damages (the text of the Complaint does not reference or claim any specific relief against defendant Paulson, although his name appears on the caption). Id. at 14-15.

"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Any waivers of sovereign immunity are "strictly construed, in terms of its scope, in favor of the sovereign," Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), and plaintiff's Complaint implicates no applicable waiver that would permit suit against the Treasury Department in this case. Further, there can be no claim against the Treasury Department pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as such claims may not be asserted against the United States or its agencies, but only against individual federal officials who engage in unconstitutional conduct. Id. at 410, 91 S.Ct. 1999; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994) ("[A Bivens] action, however, must be brought against the federal officers involved in their individual capacities. Under the doctrine of sovereign immunity, an action for damages will not lie against the United States absent consent. Because an action against a federal agency, or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived."). Moreover, there can be no ADA claim against the Treasury Department, as Title II of the ADA is not applicable to the federal government. See Cellular Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir2000) (citing 42 U.S.C. § 12131(1)).

Moreover, and with respect to the individual Treasury Defendants, there is no constitutional right to have a complaint filed with public officials acted on or to receive protection from such public officials except in circumstances where a duty arises out of "special relationships created or assumed ... with respect to particular individuals," which circumstances are not alleged here. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Pena v. DePrisco, 432 F.3d 98, 107-09 (2d Cir.2005). To the extent plaintiff is claiming racial discrimination in violation of the Equal Protection Clause at the heart of the alleged failure to protect he alleges, plaintiff must allege discrimination or disparate impact that "can be traced to a discriminatory purpose," General Building Contractors Ass'n v. Penn., 458 U.S. 375, 390, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), and no such allegation against the Treasury Defendants appears in the Complaint. Accordingly, plaintiff's claim(s) against the Treasury Defendants must be dismissed.³

II. OTS [Doc. # 61]

The allegations in the Complaint concerning the OTS are the same as those concerning the Treasury Defendants, see Compl. at 14, and, for the same reasons, they must be dismissed. Specifically, 12 U.S.C. § 1464(d)(1)(A) provides a limited waiver subjecting OTS only to suits "other than suits on claims for money damages" brought by "any Federal savings association or director or officer thereof," which plaintiff by the terms of his Complaint indisputably is not.⁴ Further, as set out above, any Bivens claim can only be. brought against a federal official, not against a federal agency, Title II of the ADA is inapplicable to the federal government, and, to the extent plaintiff raises any common law tort claims against the OTS (which he does not appear to do), the Federal Tort Claims Act provides no waiver to sue a federal agency in its own name. See 28 U.S.C. §§ 2674, 2679(a); Mill Creek Group, Inc. v. F.D.I.C., 136 F.Supp.2d 36, 43-44 (D.Conn.2001). Accordingly, plaintiff's claim(s) against OTS must also be dismissed.

III. State Defendants [Doc. # 55]

Plaintiff's allegations relating to the State Defendants concern prior complaints filed with them concerning an insurance company's failure to reimburse him for rental expenses and a loss of a contract, claiming "fail[ure] to apply the laws equally ... discrimination and violation of [plaintiff's] 14th Amendment rights of equal protection," and also referring to plaintiffs rights under the ADA. Compl. at 8-9, 15-16. Thus, the Complaint appears to assert claims against the State Defendant for failure to act on plaintiffs complaints and/or to adequately protect him from the wrongdoings alleged therein in violation of the Equal Protection Clause and/or the ADA.

As noted above, there is no constitutional right to have a public official act on a complaint filed and/or to receive protection or aid from state officials, except in the limited circumstances of a "special relationship," which is neither alleged nor appears to exist in this case. See DeShaney, supra; Pena, supra. Moreover, plaintiff does not allege any discriminatory purpose or intent in his Complaint, other than his general damages allegations of "discrimination and violation of [his] 14th Amendment rights of equal protection." See Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 470 (2d Cir.2006) (in order to establish equal protection claim, plaintiff was required to show that defendant "intentionally discriminated against her, either by adopting out of racial animus policies which are facially neutral but have a racially discriminatory effect, or by applying a facially neutral policy in a racially discriminatory manner"). "Conclusory allegation[s] of discrimination," "without evidentiary support or allegations of particularized incidents" and absent allegations of discriminatory intent, do "not state a valid claim and so cannot withstand a motion to dismiss." See id. (internal quotations omitted). Additionally, with respect to plaintiffs reference to the ADA, although it is not clear whether these allegations refer to the State Defendants, the Complaint contains no allegation that the State Defendants were aware of plaintiffs alleged disability or discriminated against him on the basis of that disability. Accordingly, plaintiffs' claims against the State Defendants will also be dismissed.⁵

IV. West Hartford Defendants [Doc. # 23]

With respect to the West Hartford Defendants, plaintiff appears to assert § 1983 claims of false arrest and malicious prosecution arising out of an arrest at the Waldbaum's Food Mart in West Hartford on September 14, 2006. See Compl. at 9-12; More Def. Stmt. at 8-9. As plaintiff alleges that he was charged with "Larceny 6th, Attempted Larceny 6th, and Forgery 2nd" and "was sentenced to one year in jail for a 30 day sentence, execution suspended, two years probation" as a result of a plea bargain, see Compl. at 11-12, the West Hartford defendants argue that plaintiffs claims against them are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), inasmuch as "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence."

Heck v. Humphrey directs that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider...