Ray v. Musaelian et al

Filing 3

ORDER (1) Granting 2 Motion to Proceed in forma pauperis and (2) Dismissing Complaint without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court sua sponte dismisses the Complaint. igned by Judge Dana M. Sabraw on 12/7/2017. (All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 FRANK G. RAY, Plaintiff, 13 14 15 16 v. ANDREW MUSAELIAN, LISA GIACOMINI, and DOES 1-10, inclusive, Defendants. 17 Case No. 17-cv-2377 DMS (MDD) ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 Plaintiff Frank G. Ray, proceeding pro se, has filed a Complaint against 20 Defendants Andrew Musaelian and Lisa Giacomini, alleging the following four 21 claims for relief: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”), 22 15 U.S.C. § 1692 et seq., (2) violation of the Federal Trade Commission Act 23 (“FTCA”), 15 U.S.C. § 45, (3) injunctive relief under the FTCA, 15 U.S.C. § 53(b), 24 and (4) equitable relief under the FTCA, 15 U.S.C. §§ 53(b) & 57b. Plaintiff has 25 not paid the $400 civil filing fee required to commence this action, but rather, has 26 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 27 1915(a). 28 –1– 17-cv-2377 DMS (MDD) 1 A. Motion to Proceed IFP 2 Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of 3 a suit without prepayment of fees if a plaintiff submits an affidavit, including a 4 statement of all his assets, showing that he is unable to pay filing fees. See 28 U.S.C. 5 § 1915(a). Here, Plaintiff has submitted an affidavit which sufficiently shows that 6 he lacks the financial resources to pay filing fees. Accordingly, Plaintiff’s motion 7 to proceed IFP is granted. 8 B. Sua Sponte Screening 9 Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is 10 subject to a mandatory and sua sponte review and dismissal by the Court, if it finds 11 the Complaint is “frivolous, malicious, failing to state a claim upon which relief may 12 be granted, or seeking monetary relief from a defendant immune from such relief.” 13 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 14 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 15 Plaintiff’s first claim for relief is for violation of the FDCPA. The FDCPA 16 prohibits debt collectors from engaging in abusive, deceptive, and unfair practices 17 in the collection of consumer debts. 15 U.S.C. § 1692. To state a claim under the 18 FDCPA, a plaintiff must allege the following: “(1) the plaintiff has been the object 19 of collection activity arising from a consumer debt, (2) the defendant attempting to 20 collect the debt qualifies as a debt collector under the FDCPA, and (3) the defendant 21 has engaged in a prohibited act or has failed to perform a requirement imposed by 22 the FDCPA.” Miner v. Baker, No. 15-CV-2765-JAH (RBB), 2016 WL 6804440, at 23 *2 (S.D. Cal. Aug. 26, 2016) (citation omitted). Here, Plaintiff has not pleaded 24 sufficient facts to allege any of the requisite elements to state a claim under the 25 FDCPA. For example, Plaintiff has failed to plead Defendants are “debt collectors” 26 and the existence of a “consumer debt” within the meaning of the FDCPA. Plaintiff 27 merely alleges in a conclusory manner that Defendants violated the FDCPA by 28 making false, deceptive, or misleading representations in connection with the –2– 17-cv-2377 DMS (MDD) 1 collection of a debt. Plaintiff, however, does not sufficiently allege any facts 2 supporting these assertions. Accordingly, this claim is dismissed without prejudice. 3 Plaintiff’s second claim is for violation of the FTCA, and the third and fourth 4 claims are for injunctive and equitable reliefs under the FTCA. The FTCA prohibits 5 “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive 6 acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C. 7 § 45(a)(1). Private litigants, however, “may not invoke the jurisdiction of the federal 8 district courts by alleging that defendants engaged in business practices proscribed 9 by [the FTCA]. The Act rests initial remedial power solely in the Federal Trade 10 Commission.” Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981); see Kerr v. 11 Am. Home Mortg. Serv’g, Inc., No. 10-cv-1612 BEN (AJB), 2010 U.S. Dist. LEXIS 12 100076, at *7, 2010 WL 3743879 (S.D. Cal. Sep. 22, 2010) (stating that “[i]t is well- 13 established that there is no private right of action for violation of the FTCA; only the 14 Federal Trade Commission has standing to enforce it”). Because there is no private 15 right of action under the FTCA, these claims are dismissed with prejudice. 16 Accordingly, the Court sua sponte dismisses the Complaint. 17 18 IT IS SO ORDERED. Dated: December 7, 2017 19 20 21 22 23 24 25 26 27 28 –3– 17-cv-2377 DMS (MDD)

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