Prather v. United States of America et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KELLI PRATHER,
Plaintiff,
vs.
UNITED STATES OF AMERICA, et al.,
Defendants.
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Case No. 1:25-cv-679
District Judge Douglas R. Cole
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Plaintiff has filed a pro se civil rights Complaint in this Court against Defendants the
United States of America and Fifth Third Bank Incorporated. 	(Doc. 1). 	By separate Order
Plaintiff has been granted leave to proceed in forma pauperis. This matter is before the Court
for a sua sponte review of the Complaint to determine whether the Complaint, or any portion of
it, should be dismissed because it is frivolous, 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. See
Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. §
1915A(b).
Plaintiff’s Current Address
Upon initiating this action, Plaintiff was located at the Hamilton County Justice Center.
On November 6, 2025, mail sent to Plaintiff at this address was returned to the Court as
undeliverable. (See Doc. 7). It appears from the United States Bureau of Prisons online inmate
locator 	that 	Plaintiff 	is 	currently 	located 	at 	the 	FMC 	Lexington. 	Viewed 	at
https://www.bop.gov/mobile/find_inmate/byname.jsp.
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The CLERK OF COURT is DIRECTED to update Plaintiff’s address. 	Plaintiff is
REMINDED that it is her responsibility to keep an updated and accurate address on file with
the Court. If her address changes or if an address she previously provided is no longer inaccurate,
Plaintiff must file a notice that includes her correct address. Failure to do so, and then to miss
Court imposed deadlines, may result in this case being dismissed.
Screening of Plaintiff’s Complaint
A. 	Legal Standard
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989)). To address this concern, Congress included subsection (e)(1) as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that—
* * *
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. 	See also § 1915A(b). 	Thus, § 1915(e)
requires sua sponte dismissal of an action upon the Court’s determination that the action is
1 Formerly 28 U.S.C. § 1915(d).
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frivolous or malicious, or upon determination that the action fails to state a claim upon which
relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 	Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action’” is insufficient. 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends
on a host of considerations, including common sense and the strength of competing explanations
for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
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Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment,
however, has limits; “‘courts should not have to guess at the nature of the claim asserted.’”
Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989)).
B. 	Plaintiff’s Allegations
Plaintiff brings this action in connection with her 2023 federal-court criminal convictions
for bank fraud, wire fraud, aggravated identity theft, and making a false statement on a loan
application in the United States District Court for the Southern District of Ohio, Case No. 1:21-cr-
000381. 	The convictions were based on Paycheck Protection Program (“PPP”) and Economic
Injury Disaster Loan Program loan applications made under the Coronavirus Aid, Relief, and
Economic Security Act. See generally, United States v. Prather, 138 F.4th 963 (6th Cir. 2025).
In the Complaint, Plaintiff alleges that Defendant Fifth Third Bank subjected her to discriminatory
loan practices in the years prior to the incidents underlying her criminal convictions and asserts
constitutional and civil rights violations in connection with her arrest, trial, and convictions.
Plaintiff claims that in the years between 2005 and 2008, she applied for personal and home
loans from Fifth Third Bank. 	(Doc. 1 at 3). 	According to Plaintiff, Fifth Third representatives
cited issues with the loan applications or Plaintiff’s creditworthiness in consistently denying the
applications. Plaintiff similarly alleges that between 2008 and 2016, Fifth Third also denied loan
applications that she submitted for her small minority owned businesses citing business history,
application errors, and Plaintiff’s creditworthiness as the loan guarantor.
Plaintiff claims that in 2017 Fifth Third settled a discrimination lawsuit based on denying
small black-owned businesses and African American citizens personal and home loans. (Id. at 3–
4). 	Plaintiff claims she “was one of those individuals who los[t] her economic standing due to
Fifth Third’s discriminatory lending practices.” (Id. at 4). Plaintiff asserts that although federal
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funds were subsequently made available through the Community Reinvestment Act of 1971
(“CRA”) and she attempted to access loans for her businesses in 2017, “Fifth Third continued to
deny personal, home and business loan application to African-American, small black businesses
and mortgage loans for Black home owners.” (Id. at 6). In doing so, Plaintiff claims that Fifth
Third Bank violated the CRA and the Civil Rights Act of 1964.
In June 2020, Plaintiff indicates she submitted six PPP loan applications with Nick Goetz,
a Fifth Third Bank employee. (Id. at 7). During the application process, Plaintiff claims she spoke
with Goetz about her experience with the bank’s alleged discriminatory lending practices.
According to Plaintiff, Goetz allegedly became defensive in response to her comments and later
arranged for her to speak with a supervisor.
Plaintiff received $19,862 on the first PPP loan application. However, in August 2020, she
was contacted by law enforcement officials—Special Agent Yi of the FBI and Reier of Ohio
Inspector General—and subsequently “interrogated” at the Cincinnati Branch of the Federal
Bureau of Investigation for one hour. Plaintiff, who was accompanied by her attorney, alleges that
although she was in custody law enforcement officials never mentioned that she was under
investigation or informed her of her right to remain silent. During the meeting, Plaintiff claims
she shared her concerns regarding Fifth Third’s lending practices, amongst other issues, and
requested to speak with the United States Attorney. In September 2020, Plaintiff was informed
that the remainder of her loan applications were denied.
In November 2020, Plaintiff claims she received a phone call indicating that the United
States Attorney was willing to meet with her. However, after arranging the meeting and arriving
with her attorney, Plaintiff claims the United States Attorney was not present. Instead, Plaintiff
alleges that Yi stated “that is not what this meeting is about I have issued an Indictment for your
arrest.” (Id. at 9). Based on her interactions with law enforcement, Plaintiff alleges that she was
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subjected to self-incrimination and unjust imprisonment, as well as denied equal protection of the
laws.
During her subsequent criminal trial, Plaintiff states that Goetz testified that although he
processed hundreds of PPP application, that he only called the FBI in response to Plaintiff’s
application. Citing Goetz’s testimony that he recalled Plaintiff’s comments about discriminatory
lending practices, Plaintiff claims that she was retaliated against for exercising her First
Amendment rights and based on her race. (Id. at 10). Plaintiff further claims that she was denied
her constitutional rights to a trial before an impartial jury, to obtain witnesses in her favor, and to
present evidence in her defense. 	Apparently as a result of her trial, conviction, and sentence,
Plaintiff asserts that Defendants subjected her to cruel and unusual punishment.
The Complaint also includes allegations regarding Plaintiff’s bankruptcy proceedings.
Plaintiff claims that she filed for federal bankruptcy in 2014. According to Plaintiff, although her
bankruptcy filing was successfully discharged in 2015, “in 2016 the Government revoked [her]
bankruptcy rendering her vulnerable financially and at risk of losing her investment property.”
(Id. at 4). Plaintiff indicates that she then ran for the United States Senate and used her political
platform to discuss corruption in Cincinnati government, including the misappropriation of federal
funds made possible through the CRA. (Id. at 4–5). Plaintiff alleges that after also speaking about
the same topics during radio and television broadcasts as a journalist, she had bankruptcy filings
dismissed and was given a two-year bar from filing for bankruptcy in 2018. She further alleges
that “bankruptcy court Government personnel” leaked information regarding the bankruptcy
dismissals to the Hamilton County Court of Common Pleas, resulting in the foreclosure of her
investment properties without notice. 	(Id. at 5).
Based on the above factual allegations, the Court understands Plaintiff to raise alleged
constitutional violations under 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Agents of the Fed.
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Bureau of Narcotics, 403 U.S. 388 (1971). As noted above, Plaintiff also claims that Fifth Third
violated the Community Reinvestment Act of 1971 and Civil Rights Act of 1964. Against both
Defendants, Plaintiff also asserts state law claims, including negligence, slander, libel, and
defamation of character.
As relief, Plaintiff seeks a full pardon by the President of the United States, immediate
release from federal custody, all felony convictions sealed and expunged, bankruptcy records
sealed and expunged, and monetary damages. (Id. at 14).
C. 	Analysis
Plaintiff’s 	Complaint 	is 	subject 	to 	dismissal 	at 	the 	screening 	stage. 	28 	U.S.C.
§§ 1915(e)(2)(B) and 1915A(b).
As an initial matter, this Court does not have the authority to grant Plaintiff a presidential
pardon. See Green v. United States, No. 4:06-cr-0679644, 2017 WL 679644, at *3 (D.S.C. Feb.
21, 2017) (“The power to grant pardons, which is the effect of vacating a conviction, is simply not
a power possessed by federal judges under Article III of the Constitution.”). 	It appears that
Plaintiff has already filed an application for the commutation of sentence. (See Doc. 10). To the
extent that Plaintiff seeks a pardon in this civil rights action, she fails to state a claim upon which
relief may be granted.2
Plaintiff’s challenge to the validity of her conviction and sentence should also be dismissed.
Plaintiff asserts several alleged constitutional violations in her criminal case and seeks immediate
release from federal custody. As here, where Plaintiff challenges the validity of her conviction or
sentence and seeks immediate or speedier release, the proper mechanism for Plaintiff to challenge
her present physical custody is a petition for a writ of habeas corpus, not this civil rights action.
2 Similarly, if Plaintiff wishes to seal or expunge records in her bankruptcy proceedings, Plaintiff should file such
requests with the United States Bankruptcy Court or appeal from these proceedings.
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Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (where a prisoner challenges “the very fact or
duration of his physical imprisonment, . . . his sole federal remedy is a writ of habeas corpus”);
Knight v. Nugent, Case No. 1:20-cv-682, No. 1:20-cv-682, 2020 WL 1640309, at *2 (N.D. Ohio
Apr. 2, 2020) (noting that to the extent that the plaintiff “seeks reversal of her [federal] conviction,
dismissal of the charges and release from prison, her sole remedy is habeas corpus, or in this case
a Motion to Vacate Conviction or Sentence under 28 U.S.C. § 2255”). To the extent that Plaintiff
seeks release from imprisonment, she must appeal her criminal conviction, then file a federal
motion to vacate, set aside, or correct sentence in her criminal case.
Further, 	to 	the 	extent 	Plaintiff 	seeks 	money 	damages 	based 	on 	her 	allegedly
unconstitutional conviction and sentence, these claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994). A judgment in Plaintiff’s favor on her claims of constitutional error during her federal
criminal proceedings would necessarily imply the invalidity of her conviction and sentence. See
id. at 487. Because Plaintiff has not alleged facts indicating that her sentence has been invalidated
by a federal or state court or other appropriate tribunal, she may not proceed with such a claim for
damages in this action. See Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco
and Firearms, 452 F.3d 433, 460 (6th Circ. 2006) (“Heck’s litigation bar applies with equal force
to Bivens actions.”); Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir. 1998) (stating that the
“Heck holding applies equally to an action brought under Bivens: so that a federal prisoner could
not bring a Bivens action until demonstrating that his conviction has been “declared invalid or
otherwise impugned as set forth in Heck.”).
In any event, Plaintiff’s claims for damages against Defendant the United States of
America should be dismissed. In Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court held that plaintiffs may sue federal officials for denying
them their constitutional rights. 	Bivens, 403 U.S. at 390-97. 	However, a Bivens action may be
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brought only against individual federal officials, not against the United States. Shaner v. United
States, 976 F.2d 990, 994 (6th Cir. 1992), citing Ashbrook v. Block, 917 F.2d 918, 924 (6th Cir.
1990). 	Plaintiff’s Bivens claim against the United States is barred by sovereign immunity.
Ashbrook, 917 F.2d at 924. Therefore, Plaintiff’s Bivens claim against the United States must be
dismissed.
Plaintiff’s claims against Defendant Fifth Third Bank should also be dismissed. 	To the
extent that Plaintiff seeks to hold the Defendant bank liable for alleged constitutional violations
under 42 U.S.C. § 1983, Plaintiff must allege and prove that a person acting under color of state
law deprived her of a right secured by the federal Constitution or laws of the United States.
However, Fifth Third Bank is not a state actor subject to liability under § 1983. Daniels v. Charter
One Bank, 39 F.App’x 223, 225 (6th Cir. 2002). See also Tafts v. Proctor, 316 F.3d 584, 590 (6th
Cir. 2003) (“A plaintiff may not proceed under § 1983 against a private party no matter how
discriminatory or wrongful the party’s conduct.”) (citation modified). 	Nor has Plaintiff alleged
facts to plausibly suggest that Fifth Third’s alleged actions in this case may be fairly attributable
to the state. See Nugent v. Spectrum Juv. Just. Servs., 72 F.4th 135, 139-40 (6th Cir. 2023). To
the extent that Plaintiff’s claims are properly construed as being brought under Bivens, Plaintiff’s
claims are still subject to dismissal for failure to state a claim upon which relief may be granted
because Bivens is also unavailable against private actors. See Stoutt v. Banco Popular de Puerto
Rico, 320 F.3d 26, 33 (1st Circ. 2003) (noting that “[t]he Supreme Court has already limited Bivens
actions by refusing to extend them to private entities acting under color of federal law” in finding
no Bivens violation by a Bank in providing information to law enforcement) (citing Corr. Serv.
Corp. v. Malesko, 534 U.S. 61 (2001)).
Based on her allegations of discriminatory loan practices, Plaintiff also claims that Fifth
Third violated the Community Reinvestment Act of 1971 and the Civil Rights Act of 1964. First,
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Plaintiff’s claim under the Community Reinvestment Act, 12 U.S.C. § 2901, should be dismissed
because the Act does not provide for a private cause of action. See Hicks v. Resolution Trust Corp.,
970 F.2d 378, 382 (7th Cir. 1992). See also Lessnau v. Dep’t. of Vet. Affairs, No. 12-14376, 2013
WL 4084757, at *3 (E.D. Mich. Aug. 13, 2013) (“there is no private cause of action under the
CRA”); Harambee Uhuru School, Inc. v. Kemp, No. C2-09-949, 1992 WL 274545, at *6 (S.D.
Ohio Sept. 30, 1992) (same).
Plaintiff’s claims brought under the Civil Rights Act of 1964 should also be dismissed.
The Court understands Plaintiff’s claims to be brought under Title VI of the act, which provides
that “[n]o person in the United States shall, on the ground of race . . . be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d. As noted above, Plaintiff contends
that Fifth Third Bank, who she alleges receives federal funding, utilized discriminatory lending
practices to deny her various loan application from 2005 through 2020. Similar to § 1983, Title
VI does not contain its own statute of limitations and borrows the state’s personal injury limitations
period. See Lillard v. Shelby Cnt. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996) (finding that the
state personal injury limitations period applied to claims under Title VI)). 	Accordingly, “[t]he
Sixth Circuit had held that claims brought pursuant to Title VI and § 1983 are governed by the
two-year statute of limitations found in Ohio Rev. Code § 2305.10.” 	Brooks v. Skinner, 139
F.Supp.3d 869, 880 (S.D. Ohio Oct. 15, 2015) (citing Tolbert v. State of Ohio Dep’t of Transp.,
172 F.3d 934, 937, 939 (6th Cir. 1999)). 	In this case, because Plaintiff did not file the instant
action until September 16, 2025, her claims brought under Title VI arising from alleged
discriminatory lending practices in 2005–2020 should be dismissed as time-barred.
Finally, the Court should dismiss Plaintiff’s state-law claims without prejudice. (See Doc.
1 at 14). Having determined that Plaintiff’s federal claims should be dismissed against the named
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Defendants, it is recommended that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims and dismiss such claims without prejudice. See Harper v. AutoAlliance
Int'l, Inc., 392 F.3d 195, 210 (6th Cir. 2004) (although the exercise of supplemental jurisdiction
under 28 U.S.C. § 1367 is a matter of discretion, when a court dismisses all federal claims before
trial, it generally should dismiss the state law claims as well).
Accordingly, in sum, it is recommended that the Court dismiss with prejudice Plaintiff's
federal claims against Defendants for failure to state a claim upon which relief may be granted.
See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 	Having recommended that the Court dismiss
Plaintiff’s federal claims, the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims without prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. 	The 	Complaint 	be 	DISMISSED 	with 	prejudice 	pursuant 	to 	28 	U.S.C.
§§ 1915(e)(2)(B) and 1915A(b).
2. 	The Court DECLINE to exercise supplemental jurisdiction over Plaintiff’s
remaining state-law claims and DISMISS such claims without prejudice.
3. 	The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons
an appeal of any Order adopting this Report and Recommendation would not be taken in good
faith, and therefore, deny Plaintiff leave to appeal in forma pauperis. 	See McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served
with a copy thereof. That period may be extended further by the Court on timely motion by either
side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,
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and shall be accompanied by a memorandum of law in support of the objections. A party shall
respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy
of those objections. 	Failure to make objections in accordance with this procedure may forfeit
rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).
Date: November 24, 2025 	/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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