Lynch v. Direct Express, No. 7:2009cv00127 - Document 8 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS on case Accordingly, I recommend to the District Court that appointment of counsel be denied and that Plaintiffs Complaint be dismissed without prejudice pursuant to 28 U. S. C. § 1915 (e)(1)(B)(ii), and Rules 12(b)(1) and 12(b)(6) and that the Court include a warning about sanctions for frivolous filings. (Ordered by Magistrate Judge Robert K Roach on 8/25/2009) (aps). Modified on 8/25/2009 (ttm).
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Lynch v. Direct Express Doc. 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION KENNETH WADE LYNCH, Plaintiff, § § § § Civil No. 7:09-CV-127-O v. § § § DEBIT, ATM and DIRECT EXPRESS § Defendants. § § FINDINGS AND RECOMMENDATIONS After reviewing Plaintiff’s Complaint, I find that a hearings of the Motions to Appoint Counsel and for Speedy Trial, and the conducting of further proceedings in the case are unnecessary. Plaintiff’s Complaint is an inarticulate rambling, but from repeated readings, I have gleaned that the gravamen of Plaintiff’s Complaint is that someone with his Direct Express Debit Card (issued to him under a Social Security Administration sponsored program) used the card at one or more ATMs to steal funds credited to his account. The funds in his account were deposited there monthly by the Social Security Administration as a method of payment of his monthly disability benefit. Because of that theft of his funds (his Social Security monthly benefit payments), he seeks recovery of $50,000,000.00 from “Debit” and $50,000,000.00 from “ATM.” The terms Debit and ATM are merely names on inanimate objects and are not properly named as defendants. To the extent Plaintiff seeks recovery from Debit or ATM, his complaint should be dismissed without prejudice. However, on the second page of his Complaint Plaintiff also names “Direct Express” as an entity, apparently as a defendant. The name “Direct Express” is the service mark of the U. S. Department of the Treasury, Financial Management which selected Comerica Bank as its financial agent to issue debit cards to federal beneficiaries. Comerica Bank issues Direct Express Debit MasterCards pursuant to a license by MasterCard International Incorporated. These debit cards with their associated accounts provide an option for federal beneficiaries (those receiving Social Security or Supplemental Security Income benefits) who do not have a bank account, to obtain their benefit payments by a no-cost alternative to using check cashing facilities to cash a check, thereby avoiding carrying around large amounts of cash. The debit card holder may use the card at ATMs located at convenient facilities to periodically draw cash from an account associated with the card, which account holds the benefit funds. Importantly also, these debit cards, as compared to benefit checks, also afford the Department of the Treasury ease and cost Dockets.Justia.com savings (up to an estimated $48,000,000.00 per year) in making the benefit payments. 1 So, it appears that Plaintiff seeks recovery from the entity that handled his account that was associated with his debit card, to-wit: Comerica Bank, the issuer of his Direct Express Debit MasterCard.2 Comerica Bank is based in Dallas, Texas. Therefore Plaintiff’s suit appears to be against a resident of Plaintiff’s own state. Therefore, diversity jurisdiction is not present. No federal question has been raised and diversity jurisdiction is not present. The complaint should be dismissed without prejudice pursuant to 28 U.S.C. §1915 (e)(1)(B)(ii) and Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. As to the issue of appointment of counsel, I find that appointment of counsel will not cure the jurisdictional and pleading deficiencies of Plaintiff’s Complaint. There is no automatic right to the appointment of counsel in a civil rights action filed by a litigant proceeding in forma pauperis. E.g., Hulsey v. State of Tex., 929 F.2d 168, 172 (5th Cir. 1991); Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). No constitutional right to appointment of counsel exists in civil cases, even civil rights cases. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per curiam). A district court is not required to appoint counsel unless "'exceptional circumstances'" exist. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (quoting Jackson v. Dallas Police Dep't, 811 F.2d 260, 261 (5th Cir. 1986) (per curiam)). Therefore, at the very least, before considering whether the assistance of counsel would benefit the plaintiff and/or the court by applying the Fifth Circuit’s four Jackson criteria, at the very least the court should require that the petitioner to allege a colorable claim. In this case, the Plaintiff has not even alleged a “colorable claim.” Accordingly, I recommend to the District Court that appointment of counsel be denied and that Plaintiff’s Complaint be dismissed without prejudice pursuant to 28 U. S. C. § 1915 (e)(1)(B)(ii), and Rules 12(b)(1) and 12(b)(6) and that the Court include a warning about sanctions for frivolous filings. It is so FOUND and RECOMMENDED, this 25th day of August, 2009. _____________________________________ Robert K. Roach UNITED STATES MAGISTRATE JUDGE 1 From The Financial Connection, a Publication of the Financial Management Service, a Bureau of the United States Department of the Treasury, dated Tuesday February 05, 2008, http://www.fms,treas.gov/finconn/jan-article3b.html (Copy attached). 2 The Treasury also originally engaged Chase Bank to issue the debit cards in the Chicago area on a test basis. Standard Instruction to Litigants A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996). DebitCardfor SSAandSSIRecip... DirectExpress Annoinces Treasury Home FAQ's Calendar Publications 'I Find: r i I l Search Proqrams gov/fi nconn/jan-articles/j an-article3'htrnl http://www.frns.treas. About FMS A'Z lndex RSsIgE Advanced SearchI Tools: Help Web Site Naviqation I Subscribe I contact FMS 0l overview: Connection" "Financial Update F Nerrns S Currentlssue D Back lssues Free D Subscribe Treasury Announces Direct Express Debit Card for SSA and SSI ReciPients Pagell2Next By Pamela Jordan, EFT Strategy Division s M F T h e D e p a r t m e n to f t h e T r e a s u r y ' s i n a n c i a l a n a g e m e n t e r v i c e ( F M S ) i s p o i s e dt o l a u n c ha n e w d e b i t c a r d p r o g r a mi n S p r i n g 2 0 0 8 w i t h a n a t i o n a l rollout to be completedby the end of summer, FMS selectedComerica Bank a s i t s f i n a n c i a la g e n t t o i s s u et h e d e b i t c a r d st o S o c i a lS e c u r i t yA d m i n i s t r a t i o n , ( s s A ) a n d s u p p l e m e n t a ls e c u r i t y I n c o m e ( s s l ) r e c i p i e n t s T r e a s u r yp l a n st o e x p a n dt h e p r o g r a mt o i n c l u d ea d d i t i o n a lb e n e f i t p a y m e n t si n t h e f u t u r e ' T h e Direct Expresscard will offer social security beneficiariesthe opportunity to e r e c e i v et h e i r p a y m e n t se l e c t r o n i c a l l y v e n i f t h e y d o n o t h a v e a b a n k to account. Cardholderswill have 24/7 access their money at automated teller a m a c h i n e s( A T M s )a n d w i l l b e a b l e t o m a k e p u r c h a s e s t a n y r e t a i l e r t h a t acceptsMastercard.Cardholderscan accesstheir account information by o t e l e p h o n ea n d i n t e r n e t , m a k e p u r c h a s e s v e r t h e i n t e r n e t , a n d r e c e i v ec a s h back with no fee at retail locations. C F M Ss e l e c t e d o m e r i c aB a n k a s i t s f i n a n c i a la g e n t t o i s s u e D i r e c t E x p r e s s cards due in part to its years of experiencewith prepaid card servicesfor state government benefit recipients.Based in Dallas,Texas, Comerica Bank is a m o n g t h e 2 O l a r g e s tb a n k i n gc o m p a n i e s w i t hl o c a t i o n si n 7 o f t h e l a r g e s t 1 1 c i t i e s .T e a m i n gw i t h C o m e r i c aB a n k i s A C S S t a t e a n d L o c a lG o v e r n m e n t ,I n c . , I o a w h o l l y o w n e d s u b s i d i a r y f A f f i l i a t e dC o m p u t e rS e r v i c e s , n c ' ( A C S ) ,w h o will processthe MasterCardbranded cards' D e b i t c a r d se l i m i n a t et h e c o s t o f c a s h i n ga c h e c ka n d a r e a s a f e a n d r e l i a b l e means of receiving a payment. The Federal Reserve Bank (FRB) 2005 p a y m e n t ss t u d y p u b l i s h e d n t h e S p r i n g 2 0 0 5 F e d e r a lR e s e r v eB u l l e t i nt i t l e d , i "Trends in the Use of Payment Instruments in the United States," validated the growing popularity of debit cards.Accordingto the study' "Among electronic payments, debit card transactionsgrew the most in terms of n u m b e r ,f r o m 8 . 3 b i l l i o n i n 2 0 0 0 t o 1 5 . 6 b i l l i o n i n 2 0 0 3 . T h e g r o w t h i n d e b i t card payments accountedfor more than half the growth in electronic p a y m e n t so v e r t h e p e r i o d . "T h e g o a l i s t o r e a c h a l l F e d e r a lc h e c k r e c i p i e n t s with the Direct Expressdebit card. By converting every unbanked Federal T c h e c k r e c i p i e n t , r e a s u r ye s t i m a t e ss a v i n g so f $ 4 8 m i l l i o n a n n u a l l y ,m a k i n g I of2 AM 11:30 8/20/2009 Direct Debit Cardfor SSAandSSIRecip... TreasuryAnnofunces Express htp://www.frns.treas.gov/finconn/jan-articles/jan-article3.h payment than checks, a optionfor Treasury DirectExpress moreefficient whichcost$,88 moreto issue. During2007,FMSsponsored one-year a debitcardpilotwith its financial (Chase), SSAand SSI recipients Chicago to in and agent,JP Morgan Chase In rollout, Treasury ruralIllinois, the pilot,as will be the casein the national to incurred bankfeesbeyond coststo makethe ACHpayment the bank no the costssuchas for directmail, to fund the card,exceptfor minimalTreasury to The average and other marketing. costto beneficiaries obtain materials Express cardduringthe pilotwas$3.87and the average the Direct cashusing that with lower costto usethe debitcardwas$5.27 but it is expected education feesofferedby Comerica Bankand a comprehensive cardholder on campaign how to avoid fees,theseaveragecostsshoulddecline pay In SSAand SSI recipients, average, on dramatically. contrast, whilesomepay $20.00or more approximately $6.00to cashtheir checks, to recently,conducted FMS, by according research Pagell2Next MewingPDFfibs 6 requires freeAcrobat the Reader. Connection to Youcan signup for your free subscription The Financial here. Last Updatedi TuesdayFebruary05, 2008 Download AdobeAcrobat8eadet Viev\Er WordVie\^er and Microsoft bcel Vieuer,Po\,erPgint Download Accessibilitv Prilacv Policv & Web SiteInlentorv Publication Schedule E-Go\ernment Reco\erv Economic f il!ffir 2 of2 Inforrnation Act Qualitv Freedom of InforfiEtion Act .€{n ^ UHfuggY,- AM 11:30 8/20/2009
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