Marinkovic v. Osborne et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Melvin Marinkovic
v. 	Case No. 19-cv-1150-PB
Michael Osborne;
Jason Osborne;
Lisa Bloomfield;
Credit Adjustments, Inc.
REPORT AND RECOMMENDATION
Pro se plaintiff Melvin Marinkovic filed this action in
forma pauperis, asserting several claims against a student loan
processor and its principals, in connection with his attempt to
consolidate old student loans and apply for new loans. 	His
complaint is before this court for preliminary review, pursuant
to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Marinkovic’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 1 of 9

2
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background1
The claims in this lawsuit stem from federally insured
student loans issued to plaintiff between 1972 and 1984.
Defendants Michael Osborne, Jason Osborne and Lisa
Bloomfield are principal officers of Credit Adjustments, Inc.
(“CAI”), a company that processes student loan collections,
accommodations, and evaluations for future lending. 	At the
direction of the Department of Education (“DOE”), Marinkovic
contacted CAI in the fall of 2018 about consolidating his older,
outstanding student loans in order to qualify for additional
lending and pursue graduate education.
1 The facts recited in this section are drawn from the
complaint (Doc. No. 1), and various documents attached thereto.
See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir.
2014).
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 2 of 9

3
During a November 2018 phone call, CAI told plaintiff it
had previously denied plaintiff’s consolidation request because
it had received unclear forms from DOE. 	During the same
conversation, CAI reconsidered its position and told plaintiff
it had approved consolidation and would send Marinkovic
documentation to that effect. 	CAI also informed plaintiff that
consolidation was contingent on his waiving any challenge to the
$53,000 student loan balance on DOE’s records. 	After plaintiff
told CAI that he would not waive any such challenge, CAI
withdrew its consolidation offer.
Plaintiff alleges that his inability to secure additional
student loans prevented him from completing classes in 2019 and
2020, which would have led to him receiving “a patent license to
start a career making $123,000 a year in 2021, and after a
graduate degree in that specialty he could have commanded
much more.” 	Complaint (Doc. No. 1) ¶ 124. 	His eight-count
complaint asserts violations of his rights under the First and
Fifth Amendments, and state law claims of tortious interference
with prospective economic advantage, defamation and intentional
infliction of emotional distress. 	He seeks eight million
dollars in damages from each defendant and an injunction
requiring them to approve future loan applications.
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 3 of 9

4
A. 	Constitutional Claims
Marinkovic asserts that the defendants violated his rights
under the First and Fifth Amendments to the United State
Constitution by failing to give him notice and an opportunity to
respond to their arbitrary decisions and illegal denial of his
2018 loan application, for interfering with his employment
prospects, and for retaliating against him for complaining about
the DOE. 	As set forth below, plaintiff’s allegations fail to
state claims for which relief can be granted and should
therefore be dismissed.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971), the Supreme Court recognized an implied private
action for damages against federal officers alleged to have
violated a citizen's constitutional rights. 	Liability under
Bivens, however, cannot attach to private actors. 	See Stoutt v.
Banco Popular de P.R., 320 F.3d 26, 33 (1st Cir. 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”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S.
61 (2001)); see also Acosta v. U.S. Marshals Serv., 445 F.3d
509, 514 (1st Cir. 2006) (affirming dismissal of Bivens action
against hospital and doctor who treated plaintiff while he was
in federal custody because they were private parties).
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 4 of 9

5
As Marinkovic concedes, the defendants are not government
officials, but are private parties. 	Therefore, they cannot
ordinarily be held liable for alleged constitutional violations.
He argues, however, that the defendants’ contractual
relationship with the DOE converts them to government actors for
purposes of this suit. 	Complaint (Doc. No. 1) ¶ 81. 	Marinkovic
includes reference in his complaint to Klunder v. Brown, 778
F.3d 24, 31 (1st Cir. 2015), in which the First Circuit Court of
Appeals affirmed the district court’s finding that a private
university was not a government actor for purposes civil rights
violations. 	Id. 	In reaching that conclusion, the court noted
that a private party’s actions can be attributable to the
government if, among other attributes, “the state has ‘so far
insinuated itself into a position of interdependence with the
[private party] that it was a joint participant in [the
challenged activity].’” 	Id. (quoting Blum v Yaretsky, 457 U.S.
991, 1004 (1982)). 	Plaintiff argues that he has alleged such
interdependence between the defendants and the DOE.
In the context of student loans, however, courts have
consistently rejected claims that private entities and
individuals involved in the student loan process are government
actors. 	See Maxberry v. Sallie Mae Educ. Loans, 532 F. App’x.
73, 75 (3d Cir. 2013) (affirming dismissal of civil rights claim
because defendant loan servicer was not a state actor); Johnson
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 5 of 9

6
v. Sallie Mae Servicing, L.P., 2007 WL 9734801, aff’d 258 F.
App’x 567 (4th Cir. 2007) (“In addition, as an employee of
Sallie Mae, a private company, [an individual defendant] is not
an agent of the federal government, and thus, a Bivens action
cannot be maintained against her.”); Holly v. Scott, 434 F.3d
287, 291 (4th Cir. 2006) (declining to extend Bivens liability
to employee of private corporation in which the federal
government had no stake other than a contractual relationship);
Campbell v. Navient Corp., No. 18-1625-RGA, 2019 WL 3802654, at
*5 (D. Del. Aug, 13, 2019) (dismissing constitutional claims
against loan servicer due to lack of state action); George W. v.
U.S. Dep’t of Ed., 149 F. Supp. 2d 1195 (E.D. Cal. 2000)
(finding that private Texas Guaranteed Student Loan Corp. was
not a state actor).2 	Against this legal backdrop, plaintiff’s
allegations fail to support the necessary element that these
defendants were government actors.
Plaintiff’s Fifth Amendment due process claims also fail to
state a cause of action because he has failed to plead that he
has been deprived of a protected interest. 	To have a
2The plaintiffs in Maxberry, George W., and Campbell sought
relief under 42 U.S.C. § 1983, and thus the court analyzed
whether each defendant was a state, rather than a federal,
actor. 	The analysis is nevertheless relevant to this case. 	See
Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)
(observing that a Bivens action serves as the “federal analog to
a suit against state officials under 42 U.S.C. § 1983”).
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 6 of 9

7
constitutionally protected interest in a benefit, “a person
clearly must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of it. 	He must,
instead, have a legitimate claim of entitlement to it.” 	Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972).
Courts have routinely found that individuals do not have a
protected interest in obtaining student loans. 	See Alston v.
Pa. State Univ., 685 F. App’x 158, 160 (3d Cir. 2017); Crawford
v. San Diego City Cmty. Coll., No. 18cv0831, 2018 WL 3629901, at
*3 (S.D. Cal. July 31, 2018); Waugh v. Conn. Student Loan
Found., 966 F. Supp. 141, 143 (D. Conn. 1997).
Marinkovic asserts that his prior receipt of student loans
places him on a different footing, creating a constitutionally
protected interest in future loans. 	Complaint (Doc. No. 1) ¶¶
11. 	Courts have uniformly rejected that proposition. 	See
Bridgeforth v. Am. Educ. Servs., 412 F. App’x. 433, 436 (3d Cir.
2011) (“[plaintiff] does not have a property interest in
receiving additional federal grants or loans.”); see also
DeJournett v. Block, 799 F.2d 430, 431 (8th Cir. 1986) (holding
that plaintiffs did not have a protected interest in receiving
farm loans, despite receiving them previously).
In the absence of factual allegations suggestive of
government action or a constitutionally protected interest in
receiving additional student loans, plaintiff has failed to set
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 7 of 9

8
forth sufficient factual allegations to support a Bivens action
against the defendants. 	Accordingly, the district judge should
dismiss plaintiff’s constitutional claims, listed as the first
through fourth, and the seventh and eighth causes of action in
the complaint.
B. 	State law claims
In his fifth and sixth causes of action, plaintiff asserts
state law claims for tortious interference with prospective
economic relations and defamation/intentional infliction of
emotional distress, respectively. 	As discussed above,
Marinkovic has failed to state a federal claim upon which relief
might be granted in this matter. 	The district judge should
decline to exercise supplemental jurisdiction over the asserted
state law claims, and should dismiss those claims, identified
here as the fifth and sixth causes of action, pursuant to 28
U.S.C. § 1367, without prejudice to Marinkovic’s ability to
assert the state law claims in an action filed in state court.
Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint (Doc. No. 1) in its entirety, without
prejudice to plaintiff’s ability to assert his claims arising
under state law in state court. 	Any objections to this Report
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 8 of 9

9
and Recommendation must be filed within fourteen days of receipt
of this notice. See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016); Fed. R. Civ. P. 72(b)(2).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 23, 2020
cc: 	Melvin Marinkovic, pro se
Case 1:19-cv-01150-PB Document 3 Filed 04/23/20 Page 9 of 9