     09-2023-cv, 09-3617-cv
     Belcher v. Wells Fargo Bank NA

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Mark D. Belcher,
14                Plaintiff-Appellant,
15
16                    -v.-                                               09-2023-cv
17                                                                       09-3617-cv
18
19       Wells Fargo Bank NA, et al.,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                  Mark D. Belcher, pro se, Bridgeport,
24                                       CT.
25
26       FOR APPELLEE:                   Charles D. Ray, David M. Bizar,
27                                       Matthew A. Weiner, McCarter &



                                                  1
 1                          English, LLP, Hartford, CT, for
 2                          Wells Fargo Bank NA)
 3
 4                          Richard Blumenthal, Attorney General
 5                          for the State of Connecticut; Maura
 6                          Murphy Osborne, Assistant Attorney
 7                          General, Hartford, CT, for the State
 8                          of Connecticut.
 9
10       Appeal from a judgment of the United States District

11   Court for the District of Connecticut (Eginton, J.).

12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.

15       In these consolidated appeals, Mark Belcher, pro se,

16   appeals the district court’s denial of his motion for a

17   preliminary injunction (Docket No. 09-2023-cv), and the

18   court’s sua sponte dismissal of his complaint for lack of

19   subject matter jurisdiction (Docket No. 09-3617-cv).     We

20   assume the parties’ familiarity with the underlying facts,

21   the procedural history of the case, and the issues presented

22   for review.

23       We review the district court’s jurisdictional ruling de

24   novo, see Celestine v. Mount Vernon Neighborhood Health

25   Ctr., 403 F.3d 76, 79-80 (2d Cir. 2005); and find no error.

26   Because Belcher and at least one of the defendants are

27   Connecticut residents, Belcher could not invoke diversity

28   jurisdiction under 28 U.S.C. § 1332.   See Wis. Dep’t of


                                  2
1    Corr. v. Schacht, 524 U.S. 381, 388 (1998) (diversity

2    jurisdiction under 28 U.S.C. § 1332 exists “only if

3    diversity of citizenship among the parties is complete,

4    i.e., only if there is no plaintiff and no defendant who are

5    citizens of the same State”).       And Belcher has asserted no

6    federal claim that is sufficiently substantial to support

7    federal question jurisdiction under 28 U.S.C. § 1331.

8    Belcher alleges that he and his deceased mother were

9    defrauded out of his mother’s house by an ill-assorted group

10   of conspirators, including the bank mortgagee of the house,

11   the bank’s lawyers, the state judges involved in his related

12   civil claims, the state attorney general, and the Attorney

13   General of the United States, all of whom allegedly violated

14   his federal due process and equal protection rights.       These

15   fantastical claims are insufficiently substantial to support

16   federal court jurisdiction under § 1331.       Cf., e.g., Adams

17   v. Suozzi, 433 F.3d 220, 225 (2d Cir. 2005) (“A federal

18   court may refuse to entertain a claim based on federal law

19   otherwise within its jurisdiction only if the federal basis

20   for that claim is so attenuated and unsubstantial as to be

21   absolutely devoid of merit.” (internal quotation marks

22   omitted)).

23       Even if Belcher’s allegations satisfied the

24   substantiality requirement of federal question jurisdiction,

                                     3
1    they fail to state a plausible claim for relief, and we

2    would therefore affirm on that basis nevertheless.    See

3    ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.

4    2003) (“[We may] affirm the district court’s judgment on any

5    ground appearing in the record, even if the ground is

6    different from the one relied on by the district court.”).

7    Belcher’s § 1983 claims against the non-state individual

8    defendants fail because he did not allege that they acted

9    under color of state law.   See Tancredi v. Metro. Life Ins.

10   Co., 316 F.3d 308, 312 (2d Cir. 2003) (“A plaintiff pressing

11   a violation of his constitutional rights under § 1983 is

12   . . . required to show state action.”).   Belcher’s claims

13   against the named judges and prosecutors are barred by

14   absolute immunity, and he did not allege any facts

15   suggesting that any of the narrow exceptions to immunity

16   applies.   See Mireles v. Waco, 502 U.S. 9, 11-12 (1991)

17   (discussing absolute judicial immunity); Buckley v.

18   Fitzsimmons, 509 U.S. 259, 272-73 (1993) (prosecutors

19   entitled to absolute immunity for actions taken while

20   serving as advocates).

21       Finally, because the district court soundly concluded

22   that Belcher was unlikely to prevail on his claims, the

23   court’s decision to deny his motion for a preliminary

24   injunction was not an abuse of discretion.   See, e.g.,

                                   4
1    Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204,

2    209 (2d Cir. 2009) (reviewing district court’s denial of

3    preliminary injunction motion for abuse of discretion and

4    setting out showing necessary to obtain a preliminary

5    injunction).

6        Finding no merit in Belcher’s remaining arguments, we

7    hereby AFFIRM the judgment of the district court.

 8
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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