Lott v. HMP of Wood County, PLLC

Filing 7

REPORT AND RECOMMENDATIONS granting 1 MOTION for Leave to Proceed in forma pauperis & recommending that the 6 Complaint be dismissed for failure to state a claim upon which relief can be granted. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 6/17/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Harry William Lott,

:

Plaintiff,

:

v.

Case

No.

2:13-cv-463

:

HMP of Wood County, PLLC,

JUDGE GREGORY L. FROST

:

Defendant.

:

Magistrate Judge Kemp

REPORT AND RECOMMENDATION
Plaintiff, Harry William Lott, submitted a request for leave
to proceed in forma pauperis and a proposed civil complaint
seeking relief against HMP of Wood County, PLLC, a medical group
practice from which Mr. Lott received treatment.

Mr. Lott

qualifies financially for a waiver of the filing fee, and the
motion for leave to proceed in forma pauperis (#1) is therefore
granted.

The issue now before the Court is whether the complaint

survives an initial screening pursuant to 28 U.S.C. §1915(e)(2)
and 28 U.S.C. §1915(a).

For the following reasons, it will be

recommended that the case be dismissed.
I. Factual Background
The facts that Mr. Lott alleged in his complaint may be
summarized as follows.

Mr. Lott received medical service from

HMP of Wood County, PLLC (“HMP”) on January 16, 2012 at Camden
Clark Medical Center.

On April 30, 2013, HMP sent Mr. Lott a

“Final Notice” post card in the mail, notifying him of his
outstanding balance of $280.25 and requesting payment for the
medical services he received.

The post card indicated that if

payment was not made within ten days of receiving the notice, Mr.
Lott’s account would be “reviewed for assignment to an external

collection agency for resolution and credit bureau reporting.”
(Doc. #1, Ex. B).
In his complaint, Mr. Lott alleged that HMP violated 15
U.S.C. §1692b, a provision of the Fair Debt Collection Practices
Act (“FDCPA”), by communicating debt collection information by
post card.

As relief, he seeks damages pursuant to §1692k(2)(a)

in the amount of $1,000.00.
II. Legal Standard
The ability to proceed in forma pauperis was established by
Congress through 28 U.S.C. §1915 in order to provide greater
means of access to the judicial system for the indigent.
v. Hernandez, 504 U.S. 25, 31 (1992).

Denton

The statute allows, with

proper showing of financial need, a petitioner to proceed in an
action “without prepayment of fees or security thereof.”

28

U.S.C. §1915(a)(1).
However, 28 U.S.C. §1915(e)(2) requires the Court to
“dismiss the case at any time if the court determines that …(B)
the action or appeal (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.”

A suit is frivolous if it lacks any arguable foundation

in either fact or law.
(1989).

Neitzke v. Williams, 490 U.S. 319, 325

A complaint fails to state a claim upon which relief can

be granted, if, after accepting as true all well-pleaded
allegations of the complaint, the allegations do not “raise a
right to relief above the speculative level.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).
The Court is mindful that pro se complaints are to be
construed liberally in favor of the pro se party.

Haines v.

Kerner, 404 U.S. 519 (1972); see also Jourdan v. Jabe, 951 F.2d

2

108, 110 (6th Cir. 1991).

It is with these standards in mind

that the Court conducts its initial screening of the complaint
submitted by Mr. Lott.
III. Discussion
Mr. Lott’s complaint alleges a violation of 15 U.S.C.
§1692b, which regulates a debt collector’s means of acquiring
location information for a debtor.

The statute provides that

“[a]ny debt collector communicating with any person other than
the consumer for the purpose of acquiring location information
about the consumer shall... not communicate by post card.”
U.S.C. §1692b(4).

15

In order to obtain relief under the FDCPA, a

plaintiff must first demonstrate that the defendant is a “debt
collector” as defined in the statute.

Montgomery v. Huntington

Bank, 346 F.3d 693, 698 (6th Cir. 2003).
The FDCPA defines a debt collector, in pertinent part, as
“any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.”

15 U.S.C. §1692a(6).

The

FDCPA’s definition of debt collector does not include a consumer
creditor attempting to collect its own debt.

See Montgomery, 346

F.3d at 698; see also Bridge v. Ocwen Fed. Bank, 681 F.3d 355,
359 (6th Cir. 2012) (“We note, as other circuits have that as to
a specific debt, one cannot be both a creditor and a debt
collector as defined in the FDCPA, because those terms are
mutually exclusive”)(internal quotations omitted).

The sole

exception to this rule occurs when the creditor attempts to
collect its own debt using a name different from its own, which
would indicate to the consumer that a third person is attempting

3

to collect for the creditor.

See Maguire v. Citicorp Retail

Services, Inc., 147 F.3d 232, 235 (2d Cir. 1998).
In this case, Mr. Lott alleges that HMP violated the FDCPA
by mailing a post card to him which notified him of an
outstanding balance.

It appears from the complaint, however,

that HMP provided medical services to Mr. Lott and used the
postcard in an effort to collect its own debt.

Under these

facts, HMP is not a “debt collector” under the FDCPA.

Here, the

Court is not faced with a situation in which HMP is attempting to
collect its own debt using a different name, thereby subjecting
it to the FDCPA.

Because, according to the complaint, HMP was

simply attempting to collect its own debt using its own name, the
complaint does not allege HMP is a debt collector under the
FDCPA.

15 U.S.C. §1692a(6); see, e.g., Ramos v. Bobell Co., 2003

WL 22725349, at *2 (S.D.N.Y.) (finding that an “in-house
collection division” is not considered a debt collector if it
attempts to collect the debt in its own name).

Consequently, the

complaint fails to state a claim under the FDCPA.
IV. Recommended Disposition
For the reason stated above, it is recommended that the
complaint be dismissed for failure to state a claim upon which
relief may be granted.

If this recommendation is adopted, a copy

of the complaint, the Report and Recommendation, and the
dismissal order should be mailed to the defendant.
V. Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

4

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

5