Rosedale v. Capital One Bank (USA) N.A.
ORDER OF DISMISSAL. ORDERED that the Complaint (ECF No. 1) and this action are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). IFP on Appeal is denied, by Judge Lewis T. Babcock on 1/4/2016. (agarc, ) Modified to correct docket text on 1/4/2016 (agarc, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02491-GPG
MICHAEL J. ROSEDALE,
CAPITAL ONE BANK (USA) N.A.,
ORDER OF DISMISSAL
Plaintiff Michael J. Rosedale currently resides in Watkins, Colorado. He has filed
“Plaintiff’s Statement of Claim” (the Complaint) alleging violations of the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., against Defendant Capital One Bank
(USA) N.A. for furnishing false and inaccurate information to consumer reporting
agencies. (See ECF No. 1, at 3-7).
Mr. Rosedale has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Subsection (e)(2)(B)(i) requires a court to dismiss sua sponte an
action at any time if the action is frivolous. A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts
that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Complaint liberally because Mr. Rosedale is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed
below, this action will be dismissed.
On November 20, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
Complaint and determined that it was deficient because it was not filed on the proper
Court-approved form. Magistrate Judge Gallagher further found that the Complaint was
deficient because Mr. Rosedale failed to provide a short and plain statement of his
claims demonstrating that he is entitled to relief as required by Rule 8 of the Federal
Rules of Civil Procedure. Specifically, Magistrate Judge Gallagher advised Plaintiff that
the FCRA imposes a duty on persons who provide information to credit reporting
agencies ("furnishers") to accurately report information. 15 U.S.C. § 1681s–2(a). While
it also gives consumers a private right of action against those who violate its provisions,
see 15 U.S.C. § 1681n (right of action against willful violators); 15 U.S.C. § 1681o (right
of action against negligent violators), that right of action is limited to claims against the
credit reporting agency; it does not extend to furnishers to agencies. Sanders v.
Mountain America Federal Credit Union, 689 F.3d 1138, 1147 (10th Cir. 2012) (internal
citations omitted). Accordingly, Magistrate Judge Gallagher directed Mr. Rosedale to
file an amended complaint on the proper Court-approved form that provides a short and
plaint statement of his claims in compliance with the requirements of Fed. R. Civ. P. 8.
Magistrate Judge Gallagher warned Mr. Rosedale in the November 20 Order that failure
to comply by the court-ordered deadline would result in dismissal of this action without
further notice. (Id.). Mr. Rosedale did not file an amended complaint within the time
In the original Complaint, Mr. Rosedale asserted claims alleging violations of the
FCRA against Defendant Capital One Bank (USA) N.A., as “furnishers of information to
consumer reporting agencies.” (See ECF No. 1, at 3-7). As set forth in the November
20 Order, a private right of action brought pursuant to the FCRA is limited to claims
against the credit reporting agency; it does not extend to furnishers. Sanders, 689 F.3d
at 1147. Thus, Mr. Rosedale has failed to state a claim against Defendant under the
FCRA. Accordingly, it is
ORDERED that the Complaint (ECF No. 1) and this action are DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. ' 1915(e)(2)(B). It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Rosedale files a notice of appeal he must also pay
the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the
United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
DATED January 4, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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