Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUEL ERNEST MCNEELY, Case No.: 3:25-cv-3544-CAB-AHG 12 Plaintiff, ORDER DISMISSING FIRST 13 v. AMENDED COMPLAINT 14 ZIONS BANCORPORATION, et al., 15 Defendants. 16 17 On February 26, 2025, Plaintiff Manuel Ernest McNeely (“Plaintiff”), proceeding 18 pro se, filed an amended complaint against Defendants Zions Bancorporation, California 19 Bank and Trust, Paul Burdiss, Eric Ellingsen, and Bryan Hane. [Doc. No. 5 (“FAC”).] 20 Plaintiff brings federal causes of action pursuant to the Equal Credit Opportunity Act, the 21 Americans with Disabilities Act, and various state causes of action. For the reasons 22 outlined below, the Court DISMISSES the FAC with leave to amend. 23 I. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 24 A. Legal Standard 25 The Court previously granted Plaintiff’s motion to proceed in forma pauperis 26 (“IFP”). [Doc. No. 4.] A plaintiff proceeding IFP pursuant to 28 U.S.C. § 1915(a) is 27 subject to sua sponte dismissal if the complaint “(i) is frivolous or malicious; (ii) fails to 28 1 state a claim on which relief may be granted; or (iii) seeks monetary relief against a 2 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Indeed, “[S]ection 3 1915(e) not only permits but requires a district court to dismiss an in forma pauperis 4 complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(b)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 9 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The Court construes 11 pro se pleadings liberally. See Barrett v. Belleque, 544 F.3d 1060, 1061–62 (9th Cir. 2008). 12 B. Discussion 13 Plaintiff brings forth several claims pursuant to the Equal Credit Opportunity Act 14 (“ECOA”), 15 U.S.C. § 1691, including Defendants’ refusal to review Plaintiff’s income 15 information, denial of Plaintiff’s application without completely reviewing the application, 16 failure to allow Plaintiff to complete his loan application, and failure to inform Plaintiff 17 why his application was denied. [FAC at 3.] Plaintiff alleges that he was discouraged by 18 both Defendant Bryan Hane and by the requirement of physically going into the bank to 19 complete his loan application. [Id. at 4–5.] Plaintiff also brings forth a claim pursuant to 20 the Americans with Disabilities Act (“ADA”) alleging Defendants discriminated against 21 him as a disabled person by requiring him to have $1.4 million to qualify for a loan. [Id. 22 at 6.] 23 1. Equal Credit Opportunity Act Claims 24 Plaintiff’s first claim is that Defendants violated the ECOA which prohibits 25 discrimination in any aspect of credit transactions. [Id. at 5.] Additionally, Plaintiff’s 26 second, third, and fourth claims are all based on 12 C.F.R. § 1002, which is the consumer 27 financial protection regulation that carries out the purposes of the ECOA. [Id. at 5–6.] 28 1 Plaintiff alleges that Defendants violated 12 C.F.R. §§ 1002.4(b), 1002.2(f), and 1002.9. 2 [FAC at 6.] 3 i. ECOA 4 The ECOA generally prohibits discrimination in any aspect of a credit transaction. 5 The prohibited bases include race, color, religion, national origin, sex, marital status, age, 6 and deriving income from any public assistance program. See CFPB v. Townstone Fin., 7 Inc., 107 F.4th 768, 775 (7th Cir. 2024); 15 U.S.C. § 1691(a). Regarding public assistance 8 income, a creditor may consider that income to determine “the amount and probable 9 continuance of income levels, credit history, or other pertinent element[s] of credit- 10 worthiness.” 15 U.S.C. § 1691(b)(2). 11 Plaintiff argues that Defendants violated the ECOA by “willfully refusing to request 12 or evaluate necessary information and denying credit without completion of the 13 application.” [FAC at 5.] Plaintiff fails to allege, however, what necessary financial 14 information Defendants failed to consider or seek. He merely offers conclusory statements 15 that Defendants did not consider all of his income and denied his application improperly. 16 Accordingly, the Court DISMISSES the first cause of action with leave to amend. 17 ii. 12 C.F.R. § 1002.4(b) 18 Plaintiff claims Defendants violated 12 C.F.R. § 1002.4(b), which prohibits a 19 creditor from making “any oral or written statement, in advertising or otherwise, to 20 applicants or prospective applicants that would discourage on a prohibited basis a 21 reasonable person from making or pursuing an application.” Plaintiff alleges Defendants 22 unlawfully discouraged him by (1) requiring him to go to the bank to submit his application 23 despite the bank’s website advertising an online option and (2) telling him they would not 24 speak to Plaintiff if he asked questions pertaining to disabled individuals who receive 25 public assistance income. [FAC at 2, 4.] 26 As to the first incident, Plaintiff does not allege any discouragement on a prohibited 27 basis. Requiring Plaintiff to physically go to the bank does not implicate any of the bases 28 1 prohibited by the ECOA. See 15 U.S.C. § 1691(a). As to the second incident, Plaintiff 2 does not allege basic facts such as which Defendant he spoke to or what questions he asked. 3 See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (affirming dismissal of 4 complaint which failed to link factual allegations to specific defendants). Of the five 5 Defendants, Bryan Hane is the only one that Plaintiff specifically ties allegations to and 6 none of those allegations show that Defendant Hane discriminated against or discouraged 7 Plaintiff on a prohibited basis. [See FAC at 4.] Moreover, Plaintiff undermines his own 8 allegations by stating that Defendants “induc[ed Plaintiff’s] continued participation in the 9 loan process[,]” which is the very opposite of discouraging Plaintiff from pursuing his 10 credit application. [FAC at 5.] “While the Court does not determine the truth of the 11 allegations on a motion to dismiss, the Court need not accept allegations that are 12 contradicted by other allegations in the complaint.” Kennedy v. Bank of Am., N.A., No. 12- 13 CV-952-YGR, 2012 WL 1458196, at *4 (N.D. Cal. Apr. 26, 2012). Accordingly, the Court 14 DISMISSES the second cause of action with leave to amend. 15 iii. 12 C.F.R. § 1002.2(f) 16 Plaintiff claims Defendants violated 12 C.F.R. § 1002.2(f), which requires creditors 17 to exercise reasonable diligence in obtaining any required information from the application. 18 Plaintiff offers nothing but conclusory statements that Defendants were not diligent in 19 obtaining required information from Plaintiff. Plaintiff does not specify what information 20 was not sought. Additionally, Plaintiff again contradicts himself as he also alleges that 21 Defendants continuously sought extensive financial documents from Plaintiff. [FAC at 5.] 22 Accordingly, the Court DISMISSES the third cause of action with leave to amend. 23 iv. 12 C.F.R. § 1002.9 24 Plaintiff claims Defendants violated 12 C.F.R. § 1002.9, which requires a creditor 25 to send a written notice to the applicant if additional information is needed and, when the 26 creditor takes adverse action, to indicate the principal reason(s) for doing so. Plaintiff’s 27 claim is conclusory, as he fails to allege facts demonstrating that Defendants did not inform 28 1 him why they denied his application or that they did not seek additional information 2 needed. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (holding 3 that courts need not accept as true “legal conclusions” contained in the complaint or other 4 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 5 inferences”). Plaintiff also again contradicts himself as he states that Defendant Hane 6 explained in adverse action documentation that Plaintiff did not have collateral to support 7 the size of his loan. [FAC at 5.] Accordingly, the Court DISMISSES the fourth cause of 8 action with leave to amend. 9 2. Americans with Disabilities Act 10 Plaintiff further alleges that Defendants violated the Americans with Disabilities 11 Act, 42 U.S.C. § 12182, (“ADA”). [FAC at 6.] The Court dismissed Plaintiff’s prior 12 claims under the Americans with Disability Act (“ADA”) because (1) the original 13 complaint did not allege any facts showing that Defendants discriminated on the basis of a 14 disability and (2) Plaintiff failed to plead his disability with any specificity. [Doc. No. 4 at 15 4.] Plaintiff’s amended complaint still does not allege what his disability is or any facts 16 showing he was discriminated against based on that disability. See Bresaz v. Cnty. of Santa 17 Clara, 136 F. Supp. 3d 1125, 1135–36 (N.D. Cal. 2015) (“Where . . . a party alleges that 18 he . . . is disabled under the ADA, courts have generally required the party to plead the 19 disability with some factual specificity.”). The Court thus DISMISSES the fifth cause of 20 action with leave to amend. 21 3. State Claims 22 Plaintiff filed his amended complaint pursuant to federal question jurisdiction. [Doc. 23 No. 5 at 2.] With his federal claims dismissed, the Court declines to exercise supplemental 24 jurisdiction over the remaining state law causes of action. See United Mine Workers of 25 Am. v. Gibbs, 383 U.S. 715, 726 (1966) (); 28 U.S.C § 1367(c)(3). 26 /// 27 /// 28 l C. Conclusion 2 For the reasons discussed, the Court DISMISSES the FAC with leave to amend by 3 || September 3, 2026. The Court advises Plaintiff that this action may be subject to dismissal 4 || without leave to amend if he fails to cure the identified deficiencies. See Telesaurus VPC, 5 v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (“A district court may deny a plaintiff 6 leave to amend if... the plaintiff had several opportunities to amend its complaint and 7 repeatedly failed to cure deficiencies [.]’’). 8 Should Plaintiff file an amended complaint, he must comply with Local Rule 15.1(c) 9 include a version “that shows — through redlining, underlining, strikeouts, or other 10 similarly effective typographic methods — how that pleading differs from the previously 11 dismissed pleading.” Failure to comply with the Local Rules will result in immediate 12 || dismissal of any amended complaint. 13 It is SO ORDERED. 14 || Dated: August 3, 2026 ©; g 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28