Mahone v. Trans-Union Credit et al

Filing 4

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $2.97 within thir ty (30) days of the date of this Order. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because plaintiff has failed to plead a jurisdictional basis for this action. See Fed.R.Civ.P.12(h)(3). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 06/18/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL A. MAHONE,

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Plaintiff,
v.
TRANS-UNION CREDIT, et al.,
Defendants.

No. 4:14CV71 TIA

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no. 507024), an
inmate at Farmington Correctional Center, for leave to commence this action without payment of
the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have
sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $2.97. See
28 U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that
the complaint should be dismissed for

lack of subject matter jurisdiction.

See

Fed.R.Civ.P.12(h)(3).
28 U.S.C. ' 1915(b)(1)
Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial
partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner=s
account, or (2) the average monthly balance in the prisoner=s account for the prior six-month
period. After payment of the initial partial filing fee, the prisoner is required to make monthly
payments of 20 percent of the preceding month=s income credited to the prisoner=s account. 28

U.S.C. ' 1915(b)(2). The agency having custody of the prisoner will forward these monthly
payments to the Clerk of Court each time the amount in the prisoner=s account exceeds $10, until
the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement for
the six-month period immediately preceding the submission of his complaint. A review of
plaintiff=s account indicates an average monthly deposit of $10.98, and an average monthly
balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court
will assess an initial partial filing fee of $2.97, which is 20 percent of plaintiff=s average monthly
deposit.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous
if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989).
An action is malicious if it is undertaken for the purpose of harassing the named defendants and
not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458,
461-63 (E.D.N.C. 1987), aff=d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be granted, the
Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include Alegal conclusions@ and A[t]hreadbare recitals of the elements of a
cause of action [that are] supported by mere conclusory statements.@ Id. at 1949. Second, the
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Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a Acontext-specific task that requires the reviewing court to draw on its judicial experience
and common sense.@ Id. at 1950. The plaintiff is required to plead facts that show more than the
Amere possibility of misconduct.@ Id. The Court must review the factual allegations in the
complaint Ato determine if they plausibly suggest an entitlement to relief.@ Id. at 1951. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff=s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Complaint
Plaintiff, an inmate at Farmington Correctional Center, brings this instant action in this
Court against Trans-Union Credit, Experian Credit and Equifax Credit.

Plaintiff has not

articulated a basis for this Court’s jurisdiction, nor has he stated the exact cause of action he is
bringing against defendants.
In his “Statement of Claim” plaintiff asserts that he has “been in constant contact by mail
and attempts by phone to straighten out false information on [his] credit report file.” Although it
is far from clear, it appears that plaintiff is asserting that he was the alleged victim of identity theft,
and he has contacted defendants to ask them to remove information from his credit files relating to
collection charges on credit cards for purchases made by the alleged perpetrator of the identity
fraud. According to plaintiff, he was told by defendants that he would have to provide information
to them about the alleged identity theft, include his photo ID, a copy of a police report relating to
the alleged identify theft, and a letter regarding his current incarceration. Plaintiff states that

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“[e]ven tho [sic] the collection companies I wrote that were on my report removed me from
collections due to ID theft, Trans-Union still won’t remove them from my credit file.”
Discussion
At the outset, the Court notes that plaintiff has failed to state the grounds for filing the
instant action in Federal Court. Plaintiff does not set forth any laws or constitutionally-protected
rights that defendants allegedly have violated. See 28 U.S.C. ' 1331. Plaintiff’s sole allegations
against defendants are that they have refused to “acknowledge all mail and phone calls to prove
that ID theft [has been] reported on [his] credit report and to remove said false information from
[his] credit report.”
Although the Court must liberally construe plaintiff's factual allegations, it will not supply
additional facts or construct a legal theory for plaintiff that assumes facts that have not been
pleaded. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir.1996) (pro
se representation does not excuse a party from complying with a court's orders and with the
Federal Rules of Civil Procedure); U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (pro se
litigants must abide by the Federal Rules of Civil Procedure); Boswell v. Honorable Governor of
Texas, 138 F.Supp.2d 782, 785 (N.D. Texas 2000) (same).
Furthermore, liberally construing the complaint as being brought under 28 U.S.C. ' 1332,
the Court will dismiss the action, without prejudice, for lack of subject matter jurisdiction. The
amount in controversy is unspecified, and plaintiff has insufficiently alleged diversity of
citizenship. See 28 U.S.C. ' 1332.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $2.97
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to AClerk, United States District Court,@ and to include upon it: (1) his name; (2) his prison
registration number; (3) the case number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint because plaintiff has failed to plead a jurisdictional basis for this action.
See Fed.R.Civ.P.12(h)(3).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 18th day of June, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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