2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-11-2011

George Ray v. First Natl Bank of Omaha

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3582

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"George Ray v. First Natl Bank of Omaha" (2011). 2011 Decisions. Paper 1802.

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GLD-088 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3582

___________

GEORGE E. RAY,

Appellant

v.

FIRST NATIONAL BANK OF OMAHA; J.P. MORGAN CHASE 

NATIONAL BANK; AND WELLS FARGO

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 09-cv-02845)

District Judge: Honorable Stewart Dalzell

____________________________________

Submitted for Possible Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

January 13, 2011

Before: AMBRO, CHAGARES and NYGAARD, Circuit Judges

(Opinion filed February 11, 2011)

_________

OPINION

_________

PER CURIAM

George Ray, proceeding pro se, appeals the District Court’s order dismissing his 

complaint. Because the appeal does not present a substantial question, we will 

summarily affirm.
2

I.

Ray, who was granted leave to proceed in forma pauperis, filed a complaint 

against First National Bank of Omaha, J.P. Morgan Chase National Bank, and Wells 

Fargo in 2009. He alleged that the Defendants violated the Patriot Act1and committed 

fraud on him and the Internal Revenue Service by classifying his accounts as “bad debts” 

and selling them to collection agencies. He sought $ 9 million in damages.2

The Defendants filed motions to dismiss to the complaint. Because Ray mailed 

his response to the motions directly to chambers, the District Judge issued an order 

directing the Clerk to docket the response. Ray appealed from that order. Consequently, 

the District Court issued an order denying the Defendants’ motions without prejudice and 

directing the case to be transferred to the court’s civil suspense docket pending the 

outcome of Ray’s appeal. After this Court dismissed Ray’s appeal for lack of 

jurisdiction, the District Court ordered that the case be transferred back to the active 

docket and dismissed it pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for “fail[ure] to state a 

claim on which relief may be granted.”

 

1 Uniting and Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 

Stat. 272 (2001).

2 Ray previously filed a similar complaint against First National Bank of Omaha and 

Global Acceptance Credit Company, L.P., in which he alleged that he became unable to 

pay a debt to the bank because of a disabling injury, and the bank took a tax deduction for 

the amount of the “bad debt,” thereby being “made whole,” and then sold the debt to the 

collection agency. He contended that this sale of the account constituted fraud. See

Complaint, Ray v. Bank of Omaha, et al., No. 08-cv-03222 (E.D. Pa. Jul. 16, 2008). The 

District Court dismissed the complaint for failure to state a claim, concluding that Ray 
3

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review of the District Court’s sua sponte dismissal of the complaint for failure to 

state a claim, and we must accept as true the allegations of fact in Ray’s complaint and all

reasonable inferences drawn therefrom. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 

2000). If no substantial question is presented by this appeal, we may summarily affirm 

the District Court’s order on any ground supported by the record. See 3d Cir. L.A.R. 

27.4; IOP 10.6; Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

The District Court discerned two claims in Ray’s complaint: that (1) he and the 

Internal Revenue Service were defrauded by the Defendants’ sale of his accounts to 

collection agencies after being “reimbursed by the I.R.S,” see Complaint at 2, Ray v. 

First National Bank of Omaha, et al., No. 09-cv-02845 (E.D. Pa. June 29, 2009),

and (2) the Defendants violated the Patriot Act by selling his personal data (birthdate, 

social security number, etc.) as part of the sale of the accounts. Even reading the 

complaint liberally, the District Court could not find either claim legally cognizable 

because Ray “provided almost no specific facts regarding the events that led him to file 

his Complaint.” See Order, Ray v. First National Bank of Omaha, et al., No. 09-cv02845 (E.D. Pa. Aug. 13, 2010).

We likewise fail to see anything more than blanket assertions of entitlement for 

relief, which are insufficient to sustain the complaint. A complaint must provide “enough 

 

was not a party to the allegedly fraudulent sale and therefore was entitled to no remedy. 

See Order, Ray v. Bank of Omaha, et al., No. 08-cv-03222 (E.D. Pa. Aug. 19, 2008).
4

facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). While “detailed factual allegations” are not 

necessary, a plaintiff ’s obligation to provide the grounds upon which his claim rests 

“requires more than labels and conclusions.” Id. at 555.

The deficiencies in Ray’s complaint are many. For example, he asserts that the 

Defendants committed fraud on the Internal Revenue Service by taking a tax deduction 

for the bad debt, but does not connect this allegation to any elements of a cause of action. 

Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to relief 

above the speculative level”). Furthermore, he alleges no particularized injury to himself

from the alleged fraud upon the Internal Revenue Service, nor does he otherwise identify 

how he may bring an action on behalf of the agency. See e.g., Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992) (one of the elements of constitutional standing to 

bring suit is a concrete injury personal to the plaintiff).

Ray’s allegations also fail to suggest how the Defendants’ sale of his debt 

accounts to collection agencies constitutes a fraud against him when he was not a party to 

the transaction. Without being able to ascertain from the complaint what theory of fraud 

Ray envisions, we simply note that he does not allege that the Defendants made any 

misrepresentation to him, that he relied on it to his detriment, or that he personally was 

injured by their conduct. See, e.g., EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 

275-76 (3d Cir. 2010) (setting forth elements of fraudulent inducement under 

Pennsylvania law). As for his assertion that the sale violated the Patriot Act, Ray does 

not identify what section of the act was violated or explain how he may bring a private 
5

action to enforce it. Furthermore, courts that have considered the question have 

concluded that the Patriot Act does not provide for a private right of action for its 

enforcement. See, e.g., Hanninen v. Fedoravitch, 583 F. Supp. 2d 322, 326 (D. Conn. 

2008); Med. Supply Chain, Inc. v. Neoforma, Inc., 419 F. Supp. 2d 1316, 1330 (D. Kan. 

2006). Accordingly, we agree that Ray’s complaint does not state a claim on which relief 

may be granted.

3

 

A district court should not dismiss a pro se complaint without allowing the 

plaintiff an opportunity to amend his complaint unless an amendment would be 

inequitable or futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). As it 

appears that amendment would be futile, for the reasons expressed in the previous 

paragraph, we conclude that the District Court did not err by declining to afford Ray 

leave to amend.

There being no substantial question presented by Ray’s appeal, we will summarily 

affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; IOP 10.6. We deny Ray’s 

motion to compel an answer.

 

3

In his written submission on appeal, Ray does not address the District Court’s order 

other than to say the court “disregarded” the facts he presented. He perhaps 

misunderstands the court’s decision: the few facts in the complaint were considered and 

found insufficient. Ray also argues that he was entitled to a default judgment before the 

dismissal because the Defendants did not answer his complaint. He was not. First, Ray 

did not request that a default be entered. See Fed. R. Civ. P. 55(a). Second, the manner 

in which the case proceeded did not require the Defendants to file an answer before the 

complaint was dismissed.