Parker v. Certified Profile et al

Filing 17

ORDER GRANTING 12 Defendants' Motion to Dismiss for Failure to State a Claim. This action is DISMISSED with prejudice. The plaintiff's Motion to Strike is DENIED. Signed by US District Judge Terrence W. Boyle on 7/15/2014. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-37-BO

)
)
)
V.
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CERTIFIED PROFILE, LLC and CASTLE )
BRANCH, INC.,
)
Defendants.
)

MONROE R. PARKER, JR.,
Plaintiff,

ORDER

This cause comes before the Court on defendants' motion to dismiss pursuant to Rule
12(b)(6) ofthe Federal Rules of Civil Procedure. Plaintiff, proceedingpro se, has responded,
defendants have replied, and the matter is ripe for ruling. For the reasons discussed below,
defendants' motion is granted and plaintiffs complaint is dismissed in its entirety.

BACKGROUND
Plaintiff filed this action against defendants alleging he was dismissed as a student from
the Chicago School of Professional Psychology- Online (Chicago School) after defendant
Certified Profile 1 provided to the Chicago School a tainted and erroneous criminal background
check regarding plaintiff. Plaintiff specifically alleges that Certified Profile disseminated to the
Chicago School charges or arrests without disposition and falsely reported that plaintiff did not
dispute the findings contained in its report. Plaintiff alleges that defendants' actions violated the
Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and seeks declaratory, monetary, and
injunctive relief.

1

Defendants contend that the background check was completed by CertifiedBackground.com,
not Certified Profile, LLC. CertifiedBackground.com is a division of Castle Branch, Inc.

DISCUSSION

A Rule 12(b)(6) motion tests the legal sufficiency ofthe complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.l993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts

pled "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged"; mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the factual allegations
do not nudge the plaintiffs claims "across the line from conceivable to plausible," the
"complaint must be dismissed." Twombly, 550 U.S. at 570. In deciding the instant motion, the
Court has considered the materials attached to the complaint as well as the full background check
referenced by the complaint and attached to the motion to dismiss without needing to convert the
motion to one for summary judgment. See Fed. R. Civ. P. IO(c); Am. Chiropractic Assoc. v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

Plaintiff first alleges that defendants included in the criminal background check provided
to the Chicago School "disseminated charges and or arrests without a disposition" in violation of
federal law, specifically the Fair Credit Reporting Act (FCRA). The FCRA explicitly provides,
however, that records of arrest and any other adverse items of information must be excluded
from a consumer report only where the date of entry antedates the report by more than seven
years. 15 U.S.C. §§ 1681c(a)(2); (5). Here, the background check bears a date of June 19, 2013.
Those arrests specifically challenged by plaintiff and attached to his complaint include a record

2

of arrest for felony theft of a motor vehicle and bad checks in Sussex County, Delaware in 2009,
which is plainly within the seven-year period. Further review of the background check reveals
that the remaining records of arrest included also fall within the seven-year period. [DE 13-1].
Thus, plaintiff has failed to state a claim upon which relief could be granted under § 1681 c( a).
Section 1681i(a) provides the basis for plaintiffs remaining allegation that defendants
failed to respond to his dispute of information contained within the background check. In order
to state a claim for violation of§ 1681i(a), a plaintiff must allege that "(1) the consumer report in
dispute contains inaccurate or incomplete information; (2) the plaintiff notified the [credit
reporting agency or CRA] of the alleged inaccuracy; (3) the dispute is not frivolous or irrelevant;
(4) the CRA failed to respond or conduct a reasonable reinvestigation of the disputed items; and
(5) the failure to reinvestigate caused the plaintiff to suffer out-of-pocket losses or intangible
damages such as humiliation or mental distress." Lazarre v. JPMorgan Chase Bank, NA., 780
F. Supp. 2d 1320, 1329 (S.D. Fla. 2011) (internal quotations, alterations, and citation omitted);

see also Hinton v. Trans Union, LLC, 654 F. Supp. 2d 440,451 (E.D. Va. 2009) ("a consumer
who brings a§ 1681i failure to reinvestigate claim must first show that his 'credit file contains
inaccurate or incomplete information.'").
Even construing plaintiffs prose complaint liberally, plaintiff has failed to allege that
any information in the background check conducted by defendants is inaccurate or incomplete.
Nor has he clarified the basis for such allegation in his motion to strike, which the Court has also
liberally construed as a response to defendants' motion to dismiss. 2 In his response, plaintiff
notes that the Delaware charges were dismissed four years before defendants produced their
report, but the fact that a charge was dismissed is not an allegation that the information regarding
2

Insofar as plaintiff seeks to strike defendants' motion, he has provided the Court with no basis
for doing so and his motion is therefore denied.
3

the charge is inaccurate, nor does it support plaintiffs § 1681 c claim as reporting of an arrest or
charge, even one that is ultimately dismissed, is proper under the FCRA so long as it is within
seven years of the report.
Finally, in his response to the motion to dismiss, plaintiff contends that he has raised
claims for relief not only under the FCRA but also under various civil rights statutes, regulations,
and the constitution. Again, even liberally construing such argument as a request to amend his
complaint to add additional claims, plaintiff has failed to provide the Court with anything more
than conclusory statements devoid of factual support. Plaintiff lists several sections of the
United States Code and the Code of Federal Regulations, many of which pertain to public
housing and civil rights, but fails to provide any information regarding how any of his purported
rights under such provisions have been violated or how defendants' actions could give rise to
liability. Thus, plaintiff has failed to state a claim upon which relief can be granted under the
FCRA or any other statutory or regulatory section cited.
CONCLUSION

For the foregoing reasons, defendants' motion to dismiss plaintiffs complaint in its
entirety [DE 12] is GRANTED and this action is DISMISSED with prejudice. Plaintiffs motion
to strike [DE 15] is DENIED. The clerk is DIRECTED to enter judgment accordingly and to
close the file.

SO ORDERED, this {.(day of July, 2014.

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TRRENCEW. BOYLE
UNITED STATES DISTRICT JUDGE

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