Davis v. Equifax Information Services, LLC

Filing 13

ORDER Granting Defendant's 4 Motion to Dismiss. The Clerk shall enter judgment and close the case. Signed by Judge Robert C. Jones on 1/10/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES ANTHONY DAVIS,

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Plaintiff James Anthony Davis sued Defendant Equifax in pro se in state court pursuant

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Plaintiff,
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vs.
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EQUIFAX,
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Defendant.

2:13-cv-02104-RCJ-VCF
ORDER

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to 42 U.S.C. § 1983 for failing to correct errors on Plaintiff’s credit report. (See Compl. 2–3, Oct.

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14, 2013, ECF No. 1-1, at 6). Defendant removed and has now moved to dismiss for failure to

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state a claim because Plaintiff has not alleged that Equifax is a state actor subject to suit pursuant

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to § 1983. The Court agrees, and Plaintiff has not responded.

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Although there is the possibility of a notice failure in the present case, the Court finds that

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the possibility is low, and there is no explicit or implicit indication of any notice failure in the

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record. The docket indicates that an AO 85 Form mailed to Plaintiff has been returned as

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undeliverable at the Lovelock Correctional Center (“LCC”) address that Plaintiff gave in his

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Complaint. The envelope attached indicates that the prison staff at LCC attempted to forward

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that piece of mail to Plaintiff at High Desert State Prison (“HDSP”), but the Post Office

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thereafter marked the envelope with the typed words “RETURN TO SENDER REFUSED

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UNABLE TO FORWARD,” which seems to indicate that the staff at HDSP refused to accept the

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forwarded piece of mail. However, there is no indication that the present motion and attendant

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Eikenberry notice were not properly delivered. The present Motion itself, like the Notice of

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Removal, includes a certificate of service indicating mailing to Plaintiff’s new address at HDSP,

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which address is confirmed by the Nevada Department of Corrections’s public website.

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Although the docket indicates that the Eikenberry notice attendant to the present Motion was

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mailed to the LCC address Plaintiff gave in his Complaint, unlike the AO 85 Form, there is no

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explicit indication in the record that the Eikenberry notice was not properly forwarded as a matter

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of course. Nor is there any reasonable implication of a failure of delivery under the present

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circumstances. The Clerk received the undeliverability notice as to the AO 85 Form eleven days

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after mailing it. As of this writing, it has been nineteen days since the Clerk mailed the

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Eikenberry notice, and there is no undeliverability notice as to the Eikenberry notice in the

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record. In any case, Plaintiff is responsible for maintaining a current address with the Court.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 4) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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Dated this 10th day of December, 2013.
Dated this 10th day of January, 2014.

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_____________________________________
ROBERT C. JONES
United States District Judge

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