HOLLOMON v. SMITH DEBNAM NARRON DRAKE SAINTSING & MYERS, LLP
Filing
6
MEMORANDUM OPINION, ORDER AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 3/25/2014. ORDERED that Plaintiff's Application toProceed In Forma Pauperis (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TYROME M. HOLLOMON, JR.,
Plaintiff,
v.
SMITH DEBNAM NARRON DRAKE
SAINTSING & MYERS, LLP
Defendant.
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1:14CV31
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge on Plaintiff’s Application for Leave to Proceed In
Forma Pauperis (Docket Entry 1).
For the reasons that follow,
pauper
solely
status
will
be
granted
for
the
purpose
of
recommending dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953
(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).
“Dispensing with filing fees,
however, [is] not without its problems.
Parties proceeding under
the statute d[o] not face the same financial constraints as
ordinary litigants.
In particular, litigants suing in forma
pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”
Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th
Cir. 2004).
To address this concern, the relevant statute provides, in
pertinent part, that “the [C]ourt shall dismiss the case at any
time if [it] determines that . . . the action . . . fails to state
a claim on which relief may be granted . . . .”
1915(e)(2).
28 U.S.C. §
A complaint falls short under this standard when it
does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In other words, the applicable standard “demands
more
than
an
accusation.”
true
all
of
unadorned,
Id.
Moreover, “the tenet that a court must accept as
the
the-defendant-unlawfully-harmed-me
allegations
contained
inapplicable to legal conclusions.
in
a
complaint
is
Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.1
1
Although the Supreme Court has reiterated that “[a]
document filed pro se is to be liberally construed and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers,”
(continued...)
-2-
DISCUSSION
This case began January 15, 2014, when Plaintiff filed a pro
se Complaint (Docket Entry 2), along with an Application for Leave
to Proceed In Forma Pauperis (“IFP Application”) (Docket Entry 1).
The Complaint contains a “PRELIMINARY STATEMENT,” describing the
case as “an action for damages brought for violations of the Fair
Credit Reporting Act (FCRA) 15 U.S.C. §1681 et seq.” (Docket Entry
2 at 1; see also id. at 2-3 (setting forth two causes of action
under FCRA).) The only factual allegation in the Complaint appears
as follows:
“On May 7, 2012, [Defendant] initiated a hard pull of
Plaintiff’s
credit
report
from
Experian
purpose, thereby reducing his credit score.”
without
permissible
(Id. at 1-2.)
In an attempt to determine, inter alia, if Plaintiff could
provide factual matter sufficient to support an inference that
Defendant did not have a “permissible purpose” for obtaining
Plaintiff’s
credit
report
under
1
the
FCRA,
the
undersigned
(...continued)
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted), the United States Court of Appeals for
the Fourth Circuit has “not read Erickson to undermine Twombly’s
requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (applying Twombly in
dismissing pro se complaint); accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A
pro se complaint . . . ‘must be held to less stringent standards
than formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
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Magistrate Judge set this case for a hearing on Plaintiff’s instant
IFP Application. (See Docket Entry 4.) At said hearing, the Court
ordered Plaintiff to file an amended complaint by March 10, 2014,
detailing the facts surrounding his allegations and the specific
damages he suffered.
(See Docket Entry dated Feb. 24, 2014.)
Plaintiff thereafter filed an Amended Complaint (Docket Entry 5),
identical to the original Complaint except that it adds the
following factual allegations as paragraphs 9-13:
9. Plaintiff
Defendant.
has
no
contractual
obligation
to
pay
10. Defendant are [sic] attorneys for DISCOVER BANK[.]
11. Plaintiff has
DISCOVER BANK[.]
no
contractual
obligation
to
pay
12. On or about February 8, 2013 Plaintiff requested a
production of the original contract with signatures
between Plaintiff and DISCOVER BANK. [] Defendant failed
to produce any signed contract[.]
13. On or about December 30, 2013 Plaintiff sent
Defendant[] a notice of violation for attempting to
collect a nonexistent debt with an opportunity to cure.
(Id. at 2.)
Under these circumstances, the Court should dismiss this case
under Section 1915(e)(2) for failure to state a claim.
See, e.g.,
Iqbal, 556 U.S. at 678 (mandating that plaintiffs provide “factual
matter” to support claims and ruling “legal conclusions” and
“conclusory statements” insufficient).
The Amended Complaint
purports to assert two claims under the FCRA based on Defendant’s
alleged
obtaining
of
Plaintiff’s
-4-
credit
report
without
a
permissible purpose. (See Docket Entry 5 at 1-2.)
It further
alleges that Plaintiff has no contractual obligation to pay either
Defendant or Defendant’s client, Discover Bank.
However,
the
fact
that
Plaintiff
(Id. at 2.)
disputes
his
current
obligation to pay Discover Bank does not provide a basis for
concluding that Defendant lacked a permissible purpose in obtaining
Plaintiff’s credit report.
To the contrary, the FCRA specifically
describes as a permissible purpose the act of obtaining a credit
report
“to
use
the
information
in
connection
with
a
credit
transaction involving the consumer on whom the information is to be
furnished and involving the extension of credit to, or review or
collection of an account of, the consumer; or . . . [because of] a
legitimate business need for the information – (i) in connection
with a business transaction that is initiated by the consumer; or
(ii) to review an account to determine whether the consumer
continues
to
meet
the
terms
of
the
account.”
15
U.S.C.
§ 1681b(a)(3) (emphasis added) (setting forth grounds under which
consumer reporting agency may release consumer reports); see also
15 U.S.C. § 1681b(f) (prohibiting obtaining of consumer reports
except “for a purpose for which the consumer report is authorized
to
be
furnished
under
this
section”).
Plaintiff’s
factual
allegations do not indicate that Defendant lacked any of the
foregoing permissible purposes for obtaining Plaintiff’s credit
report. In other words, the fact that Plaintiff allegedly does not
-5-
owe money to Discover Bank fails to support an inference that
Defendant did not obtain Plaintiff’s credit report in connection
with Discover Bank’s extension of credit to Plaintiff, a review of
his account with Discover Bank, a transaction he initiated with
Discover Bank, or the review of his continued compliance with his
account
with
Discover
Bank.
Finally,
the
Amended
Complaint
contains only a bald assertion that Defendant acted wilfully and
that Plaintiff suffered actual damages.
(See Docket Entry 5 at 2-
3.)
In several separate, recent cases, this Court, under similar
circumstances, dismissed for failure to state a claim complaints
featuring such FCRA claims.
No.
1:12CV1097,
2013
WL
See, e.g., Golden v. NCO Fin. Sys.,
4519774
(M.D.N.C.
Aug.
26,
2013)
(unpublished), recommendation adopted, slip op. (M.D.N.C. Sept. 13,
2013)
(Schroeder,
J.);
James
v.
Paragon
Revenue
Grp.,
No.
1:12CV1371, 2013 WL 3243553 (M.D.N.C. June 26, 2013) (unpublished),
recommendation
adopted,
slip
op.
(M.D.N.C.
July
23,
2013)
(Schroeder, J.); King v. Equable, No. 1:12CV443, 2013 WL 2474377
(M.D.N.C. June 10, 2013) (unpublished) (Eagles, J.); accord Boston
v. Client Servs. of Mo., Inc., No. 3:13CV184, 2013 WL 5925902, at
*3 (W.D.N.C. Nov. 1, 2013) (unpublished).
The same result should
occur here.
IT
IS
THEREFORE
ORDERED
that
Plaintiff’s
Application
to
Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
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LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 25, 2014
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