                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2008

Carey v. First Natl Bank
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4491




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Recommended Citation
"Carey v. First Natl Bank" (2008). 2008 Decisions. Paper 1541.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1541


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CLD-124                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 07-4491
                                  ________________

                             JOHN FLOYD CAREY, SR.,
                                                                Appellant

                                            v.

THE FIRST NATIONAL BANK OF PORT ALLEGANY; ERIE INSURANCE GROUP;
ALLEN W. ROSS; ALLEN ROSS AGENCY, Inc.; KARL E. GECI, Esquire; FORNAN
                       GECI LAW OFFICE, P.C.
                ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civ. No. 07-cv-01930)
                      District Judge: Honorable John E. Jones III
                    _______________________________________

 Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                      Under Third Circuit LAR 27.4 and IOP 10.6
                                   February 7, 2008

              Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                               (Filed: February 22, 2008)

                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      This is an appeal from the District Court’s dismissal of John Floyd Carey’s

complaint and his subsequent motion for reconsideration. For the following reasons, we
will dismiss this appeal. See 28 U.S.C. § 1915(e)(2)(B)(ii).

       On October 22, 2007, Appellant, an inmate at Clinton County Correctional Facility

in McElhattan, Pennsylvania, initiated a pro se civil rights action under 42 U.S.C. § 1983.

Carey’s allegations stemmed from an alleged plot by his ex-wife, her attorney, the bank

which holds a mortgage on Carey’s property, the insurance company which issued a

policy covering his property, his insurance agent, and the purchaser of his property to sell

his real estate without his authorization. In 2001, according to Carey, a fire destroyed a

store which he owned. The insurance company denied his claim after concluding that the

fire was arson caused by Carey. Without the income from his store, Carey was unable to

pay the mortgage on his properties. After Carey was incarcerated, he claimed that his ex-

wife and her attorney conspired with the bank to sell his properties without his

permission. Pursuant to its screening authority under 28 U.S.C. § 1915(e)(2)(B) the

District Court dismissed Appellant’s complaint for failure to state a claim. Carey filed a

motion for reconsideration which the District Court also dismissed.

       We exercise plenary review over the District Court’s dismissal of Carey’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Tourscher v. McCullough 184

F.3d 236, 240 (3d Cir. 1999). Upon review, it is clear that the District Court properly

dismissed Carey’s claims. None of Carey’s claims presents a proper § 1983 civil rights

claim. See Baker v. McCollan, 443 U.S. 137, 146 (1979) (tort claims must be pursued in

state courts under traditional state law principles and not under § 1983). Further, as the



                                             2
District Court noted, all of the defendants named in Carey’s complaint are private

individuals or businesses, none of whom are alleged to be state actors or to have abused

power granted by the state. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189

(3d Cir. 2005) (section 1983 plaintiff must allege that constitutional deprivation was

committed by a person acting under color of state law).

       The District Court also properly dismissed Carey’s motion for reconsideration.

Carey, in his motion for reconsideration, alleged that his ex-wife and her attorney violated

his Fifth Amendment rights by selling his property. Carey’s allegation does not change

the fact that this is a tort claim more appropriate for state court. Further, Carey’s claim

that Karl Geci, his ex-wife’s attorney, executed a federal Housing and Urban

Development form with misleading figures does not cure the state actor defect of his civil

rights claim.

       In sum, because Carey’s appeal lacks arguable legal merit, we will dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).




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