Smith v. Donald et al
REPORT AND RECOMMENDATION and ORDER: Magistrate Judge GRANTS 1 MOTION for Leave to Proceed in forma pauperis, RECOMMENDS dismissing 2 COMPLAINT. Objections to R&R due by 6/30/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/16/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:17-CV-00496-GCS
JUDGE GEORGE C. SMITH
Magistrate Judge Jolson
JUDGE JOHN DONALD, et al.,
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Charmane Smith, a Tennessee resident who is proceeding without the assistance
of counsel, brings this action against Judge John Donald, Attorney Timothy L. Edington,
Comenity Bank, and World Financial Network Bank. This matter is before the undersigned for
consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 1) and the
initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).
Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who
render services in this action shall do so as if the costs had been prepaid. 28 U.S.C . § 1915(a).
Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims.
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,
or any portion of it, that 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. 28 U.S.C.
§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set
forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” In
reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all well-pleaded
factual allegations as true, and evaluate whether it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se
complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic
pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Although unclear, Plaintiff seems to allege deficiencies related to a state-court proceeding
in Tennessee. For instance, she alleges “legal malpractice by Judge John Donald,” whose
address, as alleged, is “General Sessions Court, 140 Adams Ave., Memphis, TN 38103.” (Doc.
1-1, ¶ 4, p. 4). She additionally claims that Attorney Timothy Edington failed “to have the case
removed from the docket as closed and settled in [her] favor.” (Id., p. 1). In addition, Plaintiff
alleges claims related to her credit and seeks a variety of relief, including $280 million for
“damage to Business Credit Rating.” (Id., ¶ 5). The Court is unsure whether the allegations
regarding Plaintiff’s credit relate to the proceeding before Judge Donald.
The Court recommends dismissal on a number of grounds.
First, to the extent Plaintiff challenges a judgment from a state court in Tennessee, the
Rooker-Feldman doctrine bars such a claim. The United States District Court does not have
jurisdiction to review state-court judgments—only the United States Supreme Court has that
power. See Gottfried v. Medical Planning Servs., 142 F.3d 326, 330 (6th Cir. 1998). Further,
under the Rooker-Feldman doctrine, a litigant cannot collaterally attack a state court judgment by
filing a civil rights complaint. Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993); Dist. of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 416 (1923). On this basis, the Court recommends dismissal of the Complaint to
the extent it is challenging any Tennessee state-court proceeding.
In addition, absolute judicial immunity bars Plaintiff’s claims against Judge Donald.
“Judges are immune from liability for damages for acts committed within their judicial
discretion.” Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Because the
actions alleged here were taken in Judge Donald’s capacity as a judge—like allegedly “allowing
Attorney Edington to misrepresent himself in court” (Doc. 1-1, p. 3)—absolute judicial
immunity bars the claims against Judge Donald.
Failure to State a Claim and Frivolousness (FCBA and FCRA Claims)
Plaintiff cites to the Fair Credit Billing Act (“FCBA”) two times and the Fair Credit
Reporting Act (“FCRA”) once. (Doc. 1-1, p. 2, ¶¶ 1, 2, 4). In their entirety, the allegations
related to these statutes are:
The FCBA, 5 U.S.C. §§ 1666-1666i, and its implementing regulations (Regulation Z), 12
C.F.R. §§ 226.1 et seq., “set forth the procedures to be followed when a creditor receives notice
from a consumer of an alleged billing error in the consumer’s credit card account.” Burnstein v.
Saks Fifth Ave. & Co., 208 F. Supp. 2d 765, 772 (E.D. Mich. 2002), aff'd 85 F. App’x 430 (6th
Cir. 2003). Plaintiff does not identify the provisions of the FCBA that the Defendants allegedly
violated, but the Court assumes that she is proceeding under § 1666, the provision of the FCBA
addressing correction of billing errors.
Pursuant to 15 U.S.C. § 1666(a), an obligor has 60 days from the time she receives her
bill to provide the creditor written notice of any disputed charges. In this notice of a billing
error, the obligor “(1) sets forth or otherwise enables the creditor to identify the name and
account number (if any) of the obligor, (2) indicates the obligor’s belief that the statement
contains a billing error and the amount of such billing error, and (3) sets forth the reasons for the
obligor’s belief (to the extent applicable) that the statement contains a billing error.” 15 U.S.C.
§ 1666(a)(1)-(3). The creditor must then, within 30 days after receipt of this notice, “send a
written acknowledgment thereof to the obligor.” Id. § 1666(a)(3)(A). Next, within two billing
cycles or within 90 days (whichever is less), the creditor must either correct the billing error and
inform the customer of the correction or provide written notice and explanation that, upon
reasonable investigation, the creditor has determined that no billing error occurred. See 15
U.S.C. § 1666(a)(3)(B); 12 C.F.R. §§ 226.13(c)(2), (e), (f).
Plaintiff fails to allege that any of the Defendants are creditors within the meaning of the
statute—a fatal deficiency in and of itself. But even assuming at least one of the Defendants is
subject to liability under the statute, the Complaint does not state a viable FCBA claim. Plaintiff
does not allege that she gave proper notice of a “billing error,” triggering any obligations on
behalf of the Defendants. See 15 U.S.C. § 1666(b). Instead, she asserts vaguely that “her
complaints about the unlawful fees and penalties were not resolved or received no response by
phone or mail.” (Doc. 1-1, p. 2, ¶ 3). But notice matters greatly under the FCBA. As one court
noted, “[s]urely, the statute’s intent is not to give consumers the right to allege generalized,
blanket disputes of their bills in an effort to delay or avoid payment.” Scott v. Macy’s Inc., No.
1:14-CV-3141, 2015 U.S. Dist. LEXIS 15272, at *20 (E.D. Wash. Jan. 30, 2015). Instead, the
statute requires written notification to the creditor identifying the obligor by name and account
number and further mandates that such notice “to the extent possible, indicate the consumer’s
belief and the reasons for the belief that a billing error exists, and the type, date, and amount of
the error.” 12 C.F.R. § 226.13(b). Absent such a notice, none of the statutory duties are
triggered. See Conn-Burnstein v. Saks Fifth Ave. & Co., 85 F. App’x 430, 431 (6th Cir. 2003).
Plaintiff has alleged none of this, and Plaintiff’s FCBA claim fails to meet the basic pleading
standards set forth in Rule 8 of the Federal Rules of Civil Procedure.
Plaintiff’s FCRA is even more threadbare, comprised of only one conclusory paragraph.
(Doc. 1-1, p. 2, ¶ 4). There are multiple parts of the FCRA, and it is unclear under which part
Plaintiff wants to sue. But at base, the FCRA prohibits a furnisher of financial information from
reporting inaccurate information. See generally 15 U.S.C. § 1681, et seq. Giving Plaintiff every
benefit of the doubt, she has not pled an FCRA claim.
In addition to failing to state a claim, the Court also finds the Complaint to be frivolous
because of the damages it seeks. Seemingly for her alleged FCBA and FCRA claims, Plaintiff
seeks compensation in the amount of $280 million for “compensation for damage to Business
Credit Rating.” (Doc. 1-1, ¶ 2). The Court finds this extraordinary request, without any support,
to be frivolous and recommends dismissal on this additional basis.
Plaintiff’s remaining claims (like legal malpractice and breach of oral contract) arise
under state law. The Court has no diversity jurisdiction over these claims because Plaintiff, a
Tennessee resident, has sued other Tennesseans. When federal jurisdiction is based on diversity
of citizenship, complete diversity must exist between all adverse parties. Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 89 (2005) (citing Strawbridge v. Curtiss, 7 U.S. 267, 267, 2 L. Ed. 435
Moreover, because Plaintiff’s federal-question claims fail, see supra, the Court has no
hook for supplemental jurisdiction. When all federal claims are dismissed before trial, state-law
claims “generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.
2009). Consequently, the Undersigned recommends dismissing the state-law claims. See Mathis
v. Doctor's Hosp. (West), No. 2:12-cv-358, 2012 U.S. Dist. LEXIS 80190 *9–10 (S.D. Ohio June
11, 2012) (adopting recommendation not to exercise supplemental jurisdiction where federal
Plaintiff’s request to proceed in forma pauperis is GRANTED.
performed an initial screen and for the reasons set forth above, it is RECOMMENDED that the
Court DISMISS Plaintiff’s Complaint.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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).
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.
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).
IT IS SO ORDERED.
Date: June 16, 2017
/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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