Opinion
C/A No. 6:19-cv-02931-TMC-JDA
11-21-2019
Takitti Shava Childress, Plaintiff, v. Portfolio Recovery Associates, Defendant.
REPORT AND RECOMMENDATION
Takitti Shava Childress ("Plaintiff"), proceeding pro se and in forma pauperis, brings this civil action against the above-named Defendant, alleging violations of the Fair Credit Reporting Act ("FCRA"). Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C, the undersigned Magistrate Judge is authorized to make findings and recommendations to the District Judge. Having reviewed the Complaint in accordance with applicable law, the Court finds this action is subject to summary dismissal.
Plaintiff commenced this action by filing a Complaint, which was entered on the docket on October 15, 2019. [Doc. 1.] By Order dated October 22, 2019, the Court notified Plaintiff that this action was subject to summary dismissal because the Complaint failed to state a claim for relief. [Doc. 8.] The Court, however, noted that Plaintiff may be able to cure the deficiencies of her Complaint and granted Plaintiff twenty-one days to file an Amended Complaint. [Id. at 8-9.] Plaintiff was specifically warned as follows:
If Plaintiff fails to file an Amended Complaint that corrects those deficiencies [identified in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915.[Id. at 9.] Plaintiff did not respond to the Court's Order and has not filed an Amended Complaint that cures the deficiencies in her original Complaint.
BACKGROUND
Plaintiff asserts a claim for violations of the FCRA and a claim for invasion of privacy in her Complaint. [Doc. 1.] For her allegations, Plaintiff simply recites legal conclusions and the elements for a cause of action, purportedly under the FRCA. For example, Plaintiff makes the following allegations:
Defendant acted in a false, deceptive, misleading and unfair manner by communicating and reporting false inaccurate information to the three major credit bureau[s]. . . .[Doc. 1-1 at 1.] Plaintiff makes other allegations like those above. [Id. at 1-3.] Based on these allegations, Plaintiff asserts that Defendant violated the FCRA. [Id. at 1.] Plaintiff also contends that Defendant's conduct constitutes an invasion of her privacy. [Id. at 2.] Plaintiff contends that, as a result of Defendant's conduct, she has sustained actual damages, including injury to her reputation, invasion of privacy, damages to her credit, out-of-pocket expenses, emotional pain and anguish, embarrassment, humiliation, and pecuniary loss. [Id. at 3.] Based on these an alleged injuries, Plaintiff seeks an award of $500,000 in compensatory damages against Defendant. [Id.]
Defendant acted in a false, deceptive, misleading and unfair [manner] by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. . . .
Defendant acted in a false, deceptive, misleading and unfair manner by falsely representing the character, amount or legal status of any debt which was allegedly charged off by the original creditor. . . .
Defendant acted in a false, deceptive, misleading and unfair manner by using unfair or unconscionable means to collect any debt. . . .
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Further, even if the Complaint were not subject to the pre-screening provisions of 28 U.S.C. § 1915, this Court would possess the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that the case is not frivolous. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) . . . authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) (unpublished) ("[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.") (citations omitted); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) ("[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]"); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) ("[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the 'defenses' a party might either make or waive under the Federal Rules."); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements).
The pleadings of a pro se litigant are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a pleading to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for her, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove her case as an evidentiary matter in her pleadings, the Complaint "must 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). "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.'" Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
This action is subject to summary dismissal because the allegations in the Complaint fail to state a claim for relief. While the Court must accept as true all well-pleaded allegations and should view the Complaint in a light most favorable to Plaintiff, see Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, Twombly, 550 U.S. at 555. Plaintiff has failed to allege facts to support a claim for relief under either the FCRA or a state law claim for invasion of privacy. The Court addresses each claim in turn below.
FCRA Claim
For her first cause of action, Plaintiff purports to assert a claim under the FCRA. [Doc. 1-1 at 1.] Plaintiff contends that Defendant is a debt collector as defined under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1962a(6). [Id.] Plaintiff contends that Defendant violated the following provisions of the FCRA: §§ 1681t(b), 1681c.2(e), 1681c, 1681h(e), 1681(b), 1681(a)(4), 1681s-2, 1681s-2(a)(3), 1681s-2(b), 1681s-2(b)(1)(A). [Id.] However, Plaintiff provides no further information or allegations concerning Defendant's alleged violations of these statutory provisions, other than appearing to list various elements for a claim under the FCRA as noted above.
Despite citing various provisions of the FCRA and listing certain elements for such a cause of action, Plaintiff has presented no facts to support a claim for relief. Plaintiff contends that Defendant acted "in a false, deceptive, misleading and unfair manner" by communicating and reporting false inaccurate information to the credit bureaus; engaging in harassing, oppressing, or abusive conduct; making unsolicited phone calls; misrepresenting the character, amount, or legal status of a debt; threatening to take legal action; attempting to collect a debt or obtain information; using unfair or unconscionable means to collect a debt; among other things. However, Plaintiff has not provided any facts to support these legal conclusions. Indeed, Plaintiff has not identified any debt at issue, she has not identified any specific instances of contact between Defendant and Plaintiff, and she has not alleged any details of any of Defendant's purported conduct. The Complaint is simply devoid of any factual averments from which this Court can glean any plausible claim for relief. See, e.g., Richardson v. Navient Sols., Inc., No. 3:17-cv-1337-CMC-PJG, 2017 WL 4325690, at *2 (D.S.C. Sept. 1, 2017) (recommending dismissal where plaintiff "fail[ed] to allege any facts that would invoke § 1681s-2(b)"), Report and Recommendation adopted by 2017 WL 4269466 (D.S.C. Sept. 26, 2017); Perkins v. S.C. Cmty. Bank, No. 3:14-cv-3245-TLW, 2017 WL 121851, at *3 (D.S.C. Jan. 12, 2017) (finding plaintiff failed to state a claim for relief under § 1681s-2(b) where plaintiff did not allege that he notified a credit reporting agency ("CRA") about the dispute or that a CRA notified the defendant about the dispute). Importantly, "although there is a private right of action under § 1681s-2(b), duties arise under that provision only upon the furnisher's receipt of notice from a credit reporting agency that information has been disputed." Croft v. Bayview Loan Servicing, LLC, 166 F. Supp. 3d 638, 641 (D.S.C. 2016). Plaintiff has made no such allegations here. Because the instant Complaint provides no factual allegations to demonstrate that liability under any section of the FCRA was triggered for Defendant, the Court concludes that the Complaint is subject to dismissal. Bailey v. Bank of Am. Corp., No. 3:14-cv-1849-TLW, 2015 WL 2240519, at *7 (D.S.C. May 11, 2015).
Invasion of Privacy Claim
For her second cause of action, Plaintiff purports to assert a claim for invasion of privacy. [Doc. 1-1 at 2.] Plaintiff contends that Defendant made phone calls, left messages, and sent letters threatening legal action for a debt that does not belong to her, which constitutes an invasion of privacy. [Id.] Plaintiff further contends that Defendant refused to remove inaccurate, false information, causing damage to Plaintiff. [Id.] According to Plaintiff, all three major credit agencies "conducted their own investigation and found that Defendant had in fact been reporting false and inaccurate information." [Id.] These allegations fail to state a claim for invasion of privacy.
As the Fourth Circuit has explained with respect to a claim for invasion of privacy under South Carolina law,
The right of privacy is "the right to be let alone; the right of a person to be free from unwarranted publicity." Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 514 S.E.2d 126, 130 (1999) (quoting Holloman v. Life Ins. Co. of Virginia, 192 S.C. 454, 7 S.E.2d 169, 171 (1940)). South Carolina defines tortious invasion of privacy as "[t]he unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." Meetze v. Associ-ated Press, 230 S.C. 330, 95 S.E.2d 606, 608 (1956). This definition gives rise to three
separate but related causes of action: "(1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs." Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2, 5 (App. 1989).Doe 2 v. Associated Press, 331 F.3d 417, 421 (4th Cir. 2003). Here, Plaintiff appears to assert that Defendant made a wrongful intrusion into her private affairs. "To be liable for wrongful intrusion into private affairs, a defendant must have engaged in conduct that resembles 'watching, spying, prying, besetting, [or] overhearing.' Moreover, this intrusion must have invaded an area 'which one normally expects will be free from exposure to the defendant.'" Doe 2, 331 F.3d at 422 (quoting Snakenberg, 383 S.E.2d at 6) (citation omitted). Further, "[w]hen there has been no public disclosure of information, 'it is incumbent upon [plaintiffs] to show a blatant and shocking disregard of [their] rights, and serious mental or physical injury or humiliation . . . therefrom.'" Craig v. Andrew Aaron & Assocs., Inc., 947 F. Supp. 208, 213 (D.S.C. 1996) (quoting Roberts v. Dunbar Funeral Home, 339 S.E.2d 517, 520 (S.C. 1986)).
Plaintiff has not alleged that Defendant engaged in any such conduct. Indeed, the Complaint is completely devoid of any facts suggesting that Defendant has engaged in any kind of intentional intrusion into Plaintiff's private affairs that was substantial and unreasonable enough to be legally cognizable.
Accordingly, for the reasons explained above, this action should be summarily dismissed without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford the plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice); Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court dismiss this action without leave to amend and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 21, 2019
Greenville, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).