Tuck v. Credit One Bank et al

Filing 4

ORDER Granting 2 Motion to Proceed In Forma Pauperis and Directing US Marshal shall effect service of complaint. Signed by Judge Janis L. Sammartino on 8/1/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEBORAH TUCK,

Case No.: 17cv1363-JLS (WVG)
Plaintiff,

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ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DIRECTING U.S. MARSHAL
TO EFFECT SERVICE

v.
CREDIT ONE BANK, et al.,

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Defendants.

(ECF No. 2)

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Presently before the Court is Plaintiff Deborah Tuck’s Motion for Leave to Proceed

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In Forma Pauperis (“IFP Mot.”), (ECF No. 2), filed concurrently with her Complaint for

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damages and injunctive relief stemming from Defendants’ alleged violations of the

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Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.; Fair Debt

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Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; Fair Credit Reporting Act

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(“FCRA”), 15 U.S.C. § 1681 et seq.; and Rosenthal Fair Debt Collection Practices Act

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(“RFDCPA”), California Civil Code § 1788 et seq., (ECF No. 1).

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IFP MOTION

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of
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17cv1363-JLS (WVG)

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$400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay

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the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court

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may authorize the commencement of an action without the prepayment of fees if the party

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submits an affidavit, including a statement of assets, showing that she is unable to pay the

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required filing fee. 28 U.S.C. § 1915(a).

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In the present case, Plaintiff has submitted an affidavit indicating that her sole

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sources of monthly income constitute $400 of monthly alimony payments and her spouse’s

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$476 of monthly disability benefits. (IFP Mot. 2–3.) Plaintiff is not employed, nor has she

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been for the past two years, and Plaintiff and her spouse each have only $250 in their

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respective checking accounts. (Id. at 2.) Plaintiff estimates her monthly expenses total

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$1,445, (see id. at 4), and, although Plaintiff owns two automobiles together worth $2,000,

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(id. at 3), Plaintiff in a supplemental statement notes many further financial complications,

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(Re: In Forma Pauperis Financial Explanation 1–2, ECF No. 2-1 (listing complications

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which include that (1) Plaintiff’s is injured such that she “will be unable to work the rest

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of [her] life[;]” (2) Plaintiff is the primary caregiver “for [her] husband[’]s 88[-]year[-]old

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mother and 64[-]year[-]old sister[;]” and (3) Plaintiff and her husband’s “joint bank

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account is presently overdrawn by . . . $235[,]” which “happens more often than not when

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[Plaintiff and her husband] need money desperately before the 1st of the month”). Given

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the foregoing, the Court concludes that Plaintiff’s application demonstrates she is unable

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to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff’s Motion to

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Proceed IFP.

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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”

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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.
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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)

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“not only permits but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim”).

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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)

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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915

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make and rule on its own motion to dismiss before directing the Marshal to effect service

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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette

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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.

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Jan. 9, 2013).

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All complaints must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a complaint

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states a plausible claim is context-specific, requiring the reviewing court to draw on its

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experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 U.S. at

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556).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”

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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court

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must accept as true all allegations of material fact and must construe those facts in the light

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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see

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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).”).

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“While factual allegations are accepted as true, legal conclusions are not.” Hoagland

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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)

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(citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a
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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 556

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U.S. at 679).

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In the present case, Plaintiff alleges sufficient factual matter to survive the sua sponte

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screening. For example, Plaintiff alleges “sixteen illegal consumer debt collection calls to

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her private emergency cell phone number[,]” even though Plaintiff allegedly “never

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g[a]v[e] Defendant[s] . . . express written permission to call Plaintiff[’]s . . . emergency

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cellular phone” and notified Defendants “numerous” times of Plaintiff’s “demand[] not to

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call Plaintiff’s cell phone after receiving the very first illegally placed call.” (Compl. ¶¶ 33,

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35, 41; see also Compl. Exs. A–D (written letters disputing debt).) This information, and

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the rest of the information contained in the Complaint, is sufficient to put Defendants on

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notice of the specific allegations against them and the relevant time period during which

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the allegedly liability-creating events occurred.

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However, the Court notes that this case appears very similar to at least seven other

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cases filed by this exact same litigant in our district. See, e.g., Tuck v. Midland Credit

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Mgm’t Inc. et al, 15cv2036-MMA (MDD); Tuck v. Am. Capitol Enters. et al, 15cv2042-

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CAB (RBB); Tuck v. HCC Surety Grp. et al., 16cv231-CAB (DHB); Tuck v. Portfolio

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Recovery Assocs., LLC et al., 16cv684-JAH (BGS); Tuck v. Merrick Bank Corp. et al.,

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16cv917-JAH (MDD); Tuck v. Cavalry Portfolio Servs. et al., 16cv918-AJB (MDD); Tuck

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v. Merchants Credit Ass’n, 17cv626-BAS (MDD). And Plaintiff is cautioned that the

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Court’s sua sponte screening is not a substitute for any dispositive motion any Defendant

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may elect to file, including one under Federal Rule of Civil Procedure 12(b)(6).

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CONCLUSION

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Given the foregoing, the Court:

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(1)

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(ECF Nos. 1, 2).

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(2)

GRANTS Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)
DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No.

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1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 (“USM Form

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285s”) for each named Defendant. In addition, the Clerk will provide Plaintiff with a
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certified copy of this Order, a certified copy of her Complaint, and the summons so that

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she may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete

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the USM Form 285s as completely and accurately as possible, include an address where

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each named Defendant may be found and/or subject to service, and return them to the

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United States Marshal according to the instructions the Clerk provides in the letter

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accompanying her IFP package.

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(3)

ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

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upon Defendants as directed by Plaintiff on the USM Form 285s provided to her. All costs

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of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ.

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P. 4(c)(3).
(4)

ORDERS Defendants, once they have been served, to reply to Plaintiff’s

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2).

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(5)

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon each Defendant, or if appearance has been entered by counsel, upon

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Defendants’ counsel, a copy of every further pleading, motion, or other document

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submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

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include with every original document she seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document has been

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was served on Defendants or their counsel, and the date of that service. See S.D. Cal. Civ.

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L.R. 5.2. Any document received by the Court which has not been properly filed with the

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Clerk or which fails to include a Certificate of Service upon the Defendants, or their

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counsel, may be disregarded.

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IT IS SO ORDERED.

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Dated: August 1, 2017

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