Opinion
Civil No. 23-171 (JRT/TNL)
2023-03-31
Wilbert GLOVER, Plaintiff, v. Greg TIGANI; Keith Kulas; Stephanie Syvret, Trvis; and American Credit Acceptance, Defendants.
Wilbert Glover, 435 University Ave. East, St. Paul, MN 55130, pro se plaintiff. Sharon Robin Markowitz, STINSON LLP, 50 South Sixth Street, Suite 2600, Minneapolis, MN 55402, for defendants.
Wilbert Glover, 435 University Ave. East, St. Paul, MN 55130, pro se plaintiff. Sharon Robin Markowitz, STINSON LLP, 50 South Sixth Street, Suite 2600, Minneapolis, MN 55402, for defendants.
ORDER
JOHN R. TUNHEIM, United States District Judge
This matter is before the Court for review of Plaintiff Wilbert Glover's complaint, see (Docket No. 1), and in forma pauperis (IFP) application, see (Docket No. 2), pursuant to 28 U.S.C. § 1915(e)(2). After that review and for the reasons addressed below, this Court finds that the Complaint fails to state a claim upon which relief can be granted. Therefore, the complaint, (Docket No. 1), is dismissed without prejudice and Glover's IFP application, (Docket No. 2), is denied as moot.
BACKGROUND
Here, Glover claims that since 2019, he has had a car loan through American Credit Acceptance (ACA), requiring him to make monthly payments to ACA. (Compl. ¶ 7, Docket No. 1). Plaintiff asserts that in June 2020, he called ACA and spoke to a representative who stated his account was a "disaster" and said, "you Black people Wilbert Glover hate to pay bills," and then terminated the call. Id. When he tried calling her back, he claims his phone number was blocked. Id. According to Glover, sometime later, he was denied a home mortgage because he was told his credit report reflected that he was behind on his car loan with ACA. (Compl. at ¶ 8, Docket No. 1). Glover claims that when he called ACA to dispute this report, Tvis in customer service said, "Wilbert you sound like a wetback Mexican Mayate you are color mix race refuse to pay on this account after contract term." Id. Glover claims that after these comments he asked to speak with Tvis's supervisor, and he was put on hold, but then the call was terminated. Id.
Glover is a frequent litigant in this District. See, e.g., Glover v. American Credit Acceptance, et al., Case No. 22-CV-01121, 2023 WL 158198, (JRT/TNL) (D. Minn. Jan. 11, 2023) ("Glover I"); Glover v. Wells Fargo Bank, Case No. 22-CV-1459 (KMM/ECW), 2023 WL 275193 at * 6 (D. Minn. Jan. 18, 2023) ("Glover II") (granting defendants' motion to dismiss some of the claims); Glover v. Verizon Wireless, Case No. 22-CV-1093 (ADM/JFD), 2022 WL 14005725 (D. Minn. Oct. 24, 2022) (granting defendants' motion to stay the action and compel arbitration); Glover v. City of St. Paul Police Department, Case No. 18-CV-223 (JRT/KMM), 2020 WL 3638772 (D. Minn. July 6, 2020) (denying plaintiff's objections, adopting report and recommendation, and granting defendants' motion for summary judgment).
According to Glover, he then called ACA using his nephew's phone because he kept getting a busy signal when he used his own phone. Using his nephew's phone, he claims he spoke with Defendant Keith Kulas who stated that ACA received a payment for November 2021 but no payment for December 2021. (Compl. at ¶ 9, Docket No. 1). Glover alleges that Defendant Keith Kulas then proceeded to say, "you Black people make up a excuse not to pay your bill." Id. Glover then mailed copies of his receipts showing he made his car payments to ACA. Id. Glover claims that he again used his nephew's phone to call ACA in May 2022 and spoke to Greg Tigani, Chief Officer, who said, "the supervisor don't want to with you Wilbert Black Beetle Mayate about retail installment credit contract Wilbert you are in default because you have failed to make timely missed payments as agreed." (Compl. at ¶ 10, Docket No. 1). According to Glover, he has documentation showing that he did not miss any payments. Id. Glover alleges that Defendant Stephanie Syvret has personal knowledge of the activity on his account and failed to supervise ACA employees. (Compl. at ¶ 11, Docket No. 1). Glover claims that ACA intentionally lied about his payment history because of his race and discriminated against him, which caused his credit score to drop. Id.
These allegations sound familiar because they are: Glover previously filed a similar lawsuit in this District asserting the same allegations against generally the same defendants. See Glover I, 2023 WL 158198. In Glover I, this Court granted the Defendants' Motion to Dismiss, finding that Glover failed to allege direct or indirect discrimination to establish a plausible claim under 42 U.S.C. § 1981, and dismissed the action without prejudice, giving Glover leave to refile. Id. at *4-*5.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2), when a plaintiff requests to proceed in forma pauperis (IFP), the court shall dismiss the case at any time the court determines that the action is "frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether a complaint states a claim, the Court must accept as true all the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014). The factual allegations need not be detailed, but they must be sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Further, the complaint must "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Although pro se complaints, such as this one, are entitled to a liberal construction, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), they must nevertheless contain specific facts in support of the claims it advances. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
LEGAL ANALYSIS
In this action, Glover alleges violations of 42 U.S.C. §§ 1981, 1982; 15 U.S.C. §§ 1681, 1692; and Minn. Stat. § 363A.12. (Compl. at p. 4, Docket No. 1). None, however, provides the relief Glover seeks in his Complaint.
Glover also alleges violations of 28 U.S.C. §§ 1331, 1342, 1343, and 1344. (Compl. at p. 4, Docket No. 1). These statutes, however, establish no basis for liability. Section 1331 establishes the federal courts' federal-question jurisdiction; "it does not itself create substantive rights independent of some other cause of action." Glover II, 2023 WL 275193, at *3 (citing Sabhari v. Reno, 197 F.3d 938, 943 (8th Cir. 1999)). Section 1343 and 28 U.S.C. § 1344 similarly concern the scope of federal jurisdiction. See 28 U.S.C. § 1343 (federal courts have original jurisdiction over civil rights complaints); 28 U.S.C § 1344 (federal courts have original jurisdiction over election disputes related to voters being denied the right to vote based on race). And 28 U.S.C. § 1342 limits the authority of federal courts in cases involving public utility rate disputes. 28 U.S.C. § 1342.
A. 42 U.S.C. § 1981 and 42 U.S.C. § 1982
Starting from the top, 42 U.S.C. § 1981 provides, in pertinent part, that "[a]ll persons within the jurisdiction of the United States [ ] have the same right in every State and Territory to make and enforce contracts . . . ." 42 U.S.C. § 1981(a). To "make and enforce contracts" includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Here, as in Glover I, Glover appears to allege that ACA unlawfully discriminated against him based on his race by falsely reporting to the credit reporting bureaus that he had missed his car loan payments. Glover I, 2023 WL 158198 at * 4.
As the Court explained in Glover I, a plaintiff may prove unlawful discrimination under § 1981 "through either direct or circumstantial evidence." Id. (quoting Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019)). "To prove intentional discrimination through direct proof, a plaintiff must establish a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the [ ] decision." Young v. Builders Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (citing Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (internal citation omitted)).
Glover claims that a number of ACA employees, including "a lady in the executive office," Tvis, Keith Kulas, and Greg Tigani, "chief officer," made derogatory comments about him based on his race. In Glover I, the Court concluded that Glover did not establish a plausible claim for direct discrimination because none of the people who allegedly made discriminatory statements to him were decisionmakers. Glover I, 2023 WL 158198 at *4 (citing Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (explaining that direct discrimination in the ADEA context requires the plaintiff to allege "conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the discriminatory attitude" of the organization). Similarly, here, Glover does not allege that the "lady in the executive office," Tvis, or Keith Kulas have any decision making authority. See King v. Hardesty, 517 F.3d 1049, 1058 (8th Cir. 2008) (explaining that alleged statements are not direct evidence of discrimination unless that are "uttered by individuals closely involved" in decisions) (citing Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)), overruled on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)).
The closest Glover gets to curing this deficiency is by identifying defendant "Greg Tigani"—one of the ACA employees who allegedly made discriminatory comments to him—as "chief officer." (Compl. at ¶ 10, Docket No. 1). Glover's efforts fall short, however, because he does not allege that Tigani was at all involved in reporting customer's payment history to the credit reporting bureaus. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (defining direct evidence as "showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated" the decision). Even if Tigani is a decisionmaker, because Glover does not allege that he is a decisionmaker related to his claims, the racist statements Tigani allegedly made to him are simply insufficient to establish a claim of direct intentional discrimination.
As the Court did in Glover I, this Court next evaluates Glover's discrimination claims under the McDonnell Douglas burden-shifting framework to determine whether Glover has established a claim for intentional discrimination with circumstantial evidence. Under McDonnell Douglas, "a plaintiff may establish a prima facie case of racial discrimination through evidence giving rise to an inference that she has been intentionally discriminated against because of her race . . . by showing that a similarly-situated person of another race received more favorable treatment." Lucke, 912 F.3d at 1087 (citing Young, 754 F.3d at 577). That person "must be similarly situated in all relevant respects." Id. Glover's intentional discrimination claim under § 1981 fails under this test because he does not allege that anyone similarly situated to him received more favorable treatment. Indeed, he does not make any showing related to similarly-situated ACA customers. Id. ("The plaintiff has the burden of locating similarly-situated comparators.") (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)). According, the Court finds that Glover has failed to establish a plausible claim under 42 U.S.C. § 1981.
Section 1982 similarly provides that "all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. The prima facie elements of a § 1982 case "parallel those of a § 1981 case and require that a plaintiff show (1) membership in a protected class; (2) discriminatory intent on the part of the defendant; and (3) interference with the rights or benefits connected with ownership of property." Daniels v. Dillard's, Inc., 373 F.3d 885, 887 (8th Cir. 2004) (citing Zhu v. Countrywide Realty Co., Inc., 165 F.Supp.2d 1181, 1199 (D. Kan. 2001)).
As a threshold matter, it is far from clear whether the conduct alleged in the Complaint—lying about Glover's car payment history—constitutes unlawful interference with personal property rights within the meaning of § 1982. See Glover II, 2023 WL 275193 at *5 n.4 (assuming without deciding that contract rights implicates § 1982) (listing cases). That said, Glover's § 1982 ultimately fails for the same reasons as his § 1981 claim—he fails to plausibly allege either direct or circumstantial intentional discrimination. Accordingly, Glover's claims alleging violations of 42 U.S.C. § 1981 and 42 U.S.C. § 1982 fail as a matter of law.
B. 15 U.S.C. § 1681 and 15 U.S.C. § 1692
Glover also claims violations of 15 U.S.C. § 1681 and 15 U.S.C. § 1692. Section 1681 sets forth Congressional findings and the statement of purpose for the Fair Credit Reporting Act (FCRA). 15 U.S.C. § 1681. The FCRA requires companies providing information to credit reporting bureaus to comply with its provisions. 15 U.S.C. § 1681 et seq. Glover, however, fails to identify which provision of the FCRA the Defendants allegedly violated. Although Glover contends that the Defendants falsely reported to the credit reporting bureau that he missed car payments, 15 U.S.C. § 1681s-2(b) requires an entity that furnishes information to the credit reporting bureaus to investigate the accuracy of that information upon receipt of a notice of dispute from the credit reporting bureau itself. 15 U.S.C. § 1681s-2(b); see also Thulin v. EMC Mortg. Corp., Civ. No. 06-3514 (RHK/JSM), 2007 WL 3037353 at *6 (D. Minn. Oct. 16, 2007) (plaintiff failed to state a claim under 15 U.S.C. § 1681s-2(b) where plaintiff failed to notify the credit reporting bureaus of the disputed information) (listing cases). Thus, to the extent that Glover endeavors to establish a claim under 15 U.S.C. § 1681s-2(b), such a claim fails as a matter of law because Glover does not establish any facts suggesting that he notified the credit reporting bureaus of the purported error in his report. To the extent that Glover seeks to establish liability against the defendants under some other provision of the FCRA, the Court declines to comb through the FCRA in search of a plausible cause of action. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (although pro se complaints are to be liberally construed, courts need not supply additional facts or "construct a legal theory for plaintiff that assumes facts that have not been pleaded"). Accordingly, Glover's claim under 15 U.S.C. § 1681 fails as a matter of law.
Similarly, 15 U.S.C. § 1692 outlines Congressional findings and the declaration of purpose for the Fair Debt Collection Practices Act (FDCPA). Here, again, Glover does not identify which specific provision of the FDCPA the Defendants allegedly violated. Ultimately, however, it does not matter, because, by its terms, the FDCPA applies only to "debt collectors." It is well-established that "debt collectors" within the meaning of the FDCPA "does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned." Thulin, 2007 WL 3037353 at *5 (quoting Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (1985)). In this case, Glover alleges that the defendants are employees of ACA—the company that services his car loan. There are no allegations that his car loan was assigned to ACA or that it was in default at the time it was assigned. Because none of the Defendants satisfies the definition of "debt collector" under the FDCPA, any claim under the FDCPA would fail—and does fail—as a matter of law.
This leaves Glover's claim that the Defendants violated Minn. Stat. § 363A.12. That statute provides, in pertinent part, that it is an "unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of race." Minn. Stat. § 363A.12 subd. 1. A "public service" is defined as "any public facility, department, agency, board or commission owned, operated or managed by or on behalf of the state of Minnesota." Minn. Stat. § 363A.03 subd. 35.
Glover fails to establish any facts that would support a reasonable inference that ACA or any of the individual defendants qualify as a "public service" within the meaning of Minn. Stat. § 363A.03 subd. 35. Accordingly, Glover fails to state a claim for relief under Minn. Stat. § 363A.03, as well.
In Glover II, Glover claimed—among other things—that in his dealings with Wells Fargo, Wells Fargo and various Wells Fargo employees violated Minn. Stat. § 363A.03. Glover II, 2023 WL 275193 at *1. In that case, the Court dismissed this claim for the same reasons it has been dismissed in this action. Id.
CONCLUSION
Based on the foregoing and on all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Plaintiff's Complaint, (Docket No. 1), is DISMISSED WITHOUT PREJUDICE for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
2. Plaintiff's Application to Proceed In Forma Pauperis, (Docket No. 2), is DENIED AS MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.