1. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened 1

in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to

dismiss a prisoner’s civil action prior to service of process if it determines that the complaint is frivolous, malicious,

fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DENNIS NELSON, )

)

 Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06-CV-770-MHT

) [WO]

REGIONS BANK, )

)

 Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

In this 42 U.S.C. § 1983 action, Dennis Nelson [“Nelson”], an inmate confined at a

correctional facility in Comstock, New, York, complains that in December of 2005 Regions

Bank [“Regions”] failed to provide him “blank checks” upon his opening an account.

Plaintiff’s Complaint at 2. Nelson asserts he now has no access to his funds because he does

not remember the address for Regions. Id. at 3. 

Upon review of the complaint, the court concludes that dismissal of this case is

appropriate under 28 U.S.C. § 1915(e)(2)(B)(i). 

1

DISCUSSION

An essential element of a 42 U.S.C. § 1983 action is that a person acting under color

of state law whose conduct is reasonably attributable to the State committed the alleged

constitutional deprivation. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S.

Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 1 of 4
 2. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 2

1999, 29 L.Ed.2d 619 (1971).

2

40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527 (1981);

Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11 Cir. 1993). To state a th

viable claim for relief under § 1983, a plaintiff must assert that he was “deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law. Like the state-action requirement of the Fourteenth

Amendment, the under-color-of-state-law element of § 1983 excludes from its reach

‘“merely private conduct, no matter how discriminatory or wrongful,”’ Blum v. Yaretsky, 457

U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334

U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)).” American Manufacturers, 526 U.S. at 49-

50, 119 S.Ct. at 985. Consequently, the Eleventh Circuit has repeatedly insisted “that state

action requires both an alleged constitutional deprivation ‘caused by the exercise of some

right or privilege created by the State or by a rule of conduct imposed by the State or by a

person for whom the State is responsible,’ and that ‘the party charged with the deprivation

must be a person who may fairly be said to be a state actor.’ Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).” Id. Likewise, to proceed in a

suit filed under Bivens, the challenged actions must have been undertaken by federal 2

officials acting under color of federal law whose actions are attributable to the government.

Abella v. Rubino, 63 F.3d 1063, 1065 (11 Cir. 1995); Dean v. Gladney, 621 F.2d 1331, th

Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 2 of 4
 3. Cases dealing with actions of defendants under 42 U.S.C. § 1983 are equally applicable to Bivens 3

claims. Abella, 63 F.3d at 1065.

3

1336 (5 Cir. 1980), cert. denied, 450 U.S. 983 (1981). Although a financial institution may th 3

act “‘with the knowledge of and pursuant to’” applicable state and federal laws, Adickes v.

S.H. Kress & Co., 398 U.S. 144, 162, n. 23, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), thereby

“satisfying the first requirement, [a plaintiff] still must satisfy the second, whether the

allegedly unconstitutional conduct is fairly attributable to the State [or federal government].”

American Manufacturers, 526 U.S. at 50, 119 S.Ct. at 985. 

A financial institution such as Regions is not a person within the meaning of 42

U.S.C. § 1983. Moreover, the actions about which Nelson complains were not committed

by a state or federal actor and such actions likewise clearly resulted from “merely private

conduct” excluded from the reach of § 1983 and Bivens. In light of the foregoing, the court

concludes that the claims presented against the named defendant are frivolous and subject

to summary dismissal in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case

be dismissed with prejudice prior to service of process pursuant to the directives of 28 U.S.C.

§ 1915(e)(2)(B)(i). 

It is further 

ORDERED that on or before September 11, 2006 the parties may file any objections

to the Recommendation. Any objections filed must specifically identify the findings in the

Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 3 of 4
4

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge's Recommendation shall bar the party from a de novo determination by the

District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981,

en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

Done this 29 day of August, 2006. th

/s/ Delores R. Boyd

 UNITED STATES MAGISTRATE JUDGE 

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