Unpublished Dispositiondennis Lee Maxberry, Plaintiff-appellant, v. the Provident Bank; Bill Anshute; the Better Businessbureau, Defendants-appellees.dennis Lee Maxberry, Plaintiff-appellant, v. First National Bank; John Terwiller, Defendants-appellees.dennis Lee Maxberry, Plaintiff-appellant, v. Chase Bank of Ohio; Bob Henge, Defendants-appellees, 826 F.2d 1064 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1064 (6th Cir. 1987) Aug. 10, 1987


Before KENNEDY, MILBURN and NORRIS, Circuit Judges.

This pro se plaintiff appeals the judgments of the district court which dismissed his three separate civil rights actions filed pursuant to 42 U.S.C. § 1983. Upon consideration of the records and the briefs submitted by plaintiff in each appeal, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In December 1986 and January 1987, plaintiff filed three separate civil rights complaints pursuant to 42 U.S.C. § 1983 in the District Court for the Southern District of Ohio. In support of each of those claims, plaintiff generally alleged that defendants, each of whom are either bank employees or the banks themselves, improperly denied his applications for loans ranging in amounts from $500,000.00 to $270,000,000.00. In addition, in District Court Case No. C-1-86-1250, plaintiff alleged that defendant Better Business Bureau had wrongfully refused to accept his application to place an advertisement in The Cincinnati Enquirer. Rather than allowing service of any of the complaints, however, the district court concluded that plaintiff's claims were frivolous and therefore subject to dismissal pursuant to 28 U.S.C. § 1915(d). Upon the entry of judgments to that effect in each of the cases, plaintiff filed these three appeals.

A district court may properly dismiss an action for reason of frivolity under 28 U.S.C. § 1915(d) only if, assuming the truth of all the factual allegations contained in the complaint, it can conclude that the plaintiff would not be entitled to relief upon his proof of any set of circumstances. Harris v. Johnson, 784 F.2d 222 (6th Cir. 1986); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 106 S. Ct. 788 (1986). The district court properly applied that standard in the three cases now before this court as plaintiff has failed in his responsibility to plead facts sufficient to establish a claim under 42 U.S.C. § 1983. Specifically, in order to successfully establish a cause of action under that statute, plaintiff must allege both that he was deprived of a right or interest secured by the Constitution or the laws of the United States, and that defendants deprived him of that right or interest while acting under the color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 576 (6th Cir. 1979). Examination of plaintiff's complaints demonstrates that he has failed to allege either of those elements in these cases. First, research discloses no authority which would indicate that plaintiff's interests in either obtaining a loan from defendant banks and their employees or placing an advertisement in a newspaper are of sufficient magnitude to fall within the purview of 42 U.S.C. § 1983. Likewise, defendants cannot be said to have been acting under the color of state law as they are all private citizens or privately-owned financial and business institutions. See Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927 (1st Cir.), cert. denied, 419 U.S. 1001 (1974). The district court, therefore, did not err in concluding that plaintiff's claims were frivolous and ordering their dismissal pursuant to 28 U.S.C. § 1915(d).

Accordingly, the final judgments entered by the district court in Case Nos. C-1-86-1250; C-1-87-056 and C-1-87-87, are hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.