United States District Court, D. Delaware
JOHN M. MCCURDY, Plaintiff,
U.S.D.A. RURAL DEVELOPMENT, Defendant.
plaintiff, John M. McCurdy ("McCurdy"), filed this
lawsuit on January 11, 2017, alleging fraud by the defendant
U.S.D.A. Rural Development ("USDA"). (D.I. 2.) He
appears . pro se and was granted permission to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. (D.I. 4.) The court proceeds to review and
screen the complaint pursuant to 28 U.S.C. §
alleges that between September 2003 through August 2015, the
USDA participated with one or more persons in defrauding him
with regard to his home loan. McCurdy alleges the USDA and
others allowed unauthorized changes and charges to his home
loan account and others allowed fraudulent activity including
unauthorized: address changes, account information, account
access without password authentication, loan changes without
permission, second loan, and hardship deferments. McCurdy
alleges the fraudulent activity caused him financial and
credit damage, irreversible harm to his credit line and
credit history, and harmed his ability to gain stable
employment and obtain other loans. He seeks compensatory and
punitive and the removal of all credit lines with regard to
the home loan agreement and any other agreement affiliated
with the home loan account.
STANDARD OF REVIEW
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief." Ball v. Famiglio, 726
F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff Phillips v. County of Allegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Because McCurdy proceeds
pro se, his pleading is liberally construed and his
complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. at 94
action is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Under 28 U.S.C. §
1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; Wilson v. Rackmill,
878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6)
standard to dismissal for failure to state a claim under
§ 1915(e)(2)(B)). However, before dismissing a complaint
or claims for failure to state a claim upon which relief may
be granted pursuant to the screening provisions of 28 U.S.C.
§ 1915, the court must grant McCurdy leave to amend his
complaint unless amendment would be inequitable or futile.
See Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Ail. Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (internal citations and quotations omitted).
Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to
relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
alleges that a federal defendant engaged in fraud causing him
harm. The Federal Tort Claims Act ("FTCA") provides
a remedy in damages for the tortious conduct of employees of
the United States. See United States v. Muniz, 374
U.S. 150, 150 (1963). The FTCA "was designed primarily
to remove the sovereign immunity of the United States from
suits in tort and, with certain specific exceptions, to
render the Government liable in tort as a private individual
would be under like circumstances." Sosa v.
Alvarez-Machain, 542 U.S. 692, 700 (2004). The FTCA
provides a limited, expressed waiver of sovereign immunity of
tort claims brought against the Government and its agencies.
Smith v. United States, 507 U.S. 197, 113 (1993).
1346(b) of Title 28 provides that immunity is waived: for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred. 28 U.S.C. § 1346(b). However,
the waiver of immunity is not without limitations. Under
§ 2680(h) the immunity exceptions do not apply to
"[a]ny claim arising out of. . . misrepresentation,
deceit, or interference with contract rights." 28 U.S.C.
complaint must be dismissed in light of § 2680(h). If
plaintiff s allegations are construed as alleging
interference with contract rights, then recovery is barred
under § 2680(h). Similarly, the FTCA is of no assistance
to McCurdy's claims of fraud because they fall squarely
under the exemption of claims arising out of
"misrepresentation" or "deceit" under
§ 2680(h). Beneficial Consumer Discount Co. v.
Poltonowicz, 47 F.3d 91, 96 (3d Cir. 1995) ("courts
have consistently held that fraud claims against the
government are not permitted under the FTCA"); see
also Brobst v. United States, 659 F.App'x 135, 137
n.1 (3d Cir. 2016) (unpublished). Accordingly, the court will
dismiss the complaint as legally frivolous pursuant to 28
addition, in reviewing the complaint, it does not appear that
this court has subject matter jurisdiction. The court is
permitted to raise the issue of subject matter jurisdiction
sua sponte. See Liberty Mut. Ins. Co. v. Ward Trucking
Corp.,48 F.3d 742, 750 (3d Cir. 1995) ("Federal
courts have an ever-present obligation to satisfy ...