Opinion
C. A. 4:20-4252-SAL-TER
02-18-2021
Charles Ray Thomas, II, Plaintiff, v. Lakeview Loancare, LLC, Santander Consumer USA, BBVA USA, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se 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 complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges the basis for jurisdiction is federal question. (ECF No. 1 at 3). Plaintiff alleges his claims are under the Fair Debt Collection Practices Act(FDCPA), 15 U.S.C. 1692a et seq. and the Consumer Credit Protection Act, 15 U.S.C. § 1681 as to Credit Reporting Agencies, also known as Fair Credit Reporting Act. (ECF No. 1).
Plaintiff asserts he asked all the Defendants for validation of his debt under the FDCPA and they did not oblige. He asserts thus Defendants “defaulted” and he told Defendants to stop collection activity and Defendants did not. (ECF No. 1). As to Plaintiff's FDCPA claims, Plaintiff has made sufficient allegations to surpass initial review/summary dismissal.
To the extent Plaintiff is attempting to pursue theories presented by redemptionist and sovereign citizen adherents, such theories have been recognized by the courts as frivolous and a waste of court resources. Estrada Tr. v. All Assets Held in 57995-019 / Ismael Estrada, No. CV 4:19-2968-MGL-TER, 2019 WL 6330745, at *2 (D.S.C. Oct. 25, 2019), report and recommendation adopted sub nom., 2019 WL 6320153 (D.S.C. Nov. 26, 2019)(collecting cases).
As to Plaintiff's claims regarding the Fair Credit Reporting Act, the FCRA governs consumer credit reporting practices. The FCRA delineates requirements for three types of actors, including “(1) consumer reporting agencies, (2) users of consumer reports, and (3) the furnishers of information to consumer reporting agencies.” See Martin v. Sallie Mae, Inc., et al., No. 5:07-cv-00123, 2007 WL 4305607, at *9 (S.D. W.Va. Dec. 7, 2007) (citing Gibbs v. SLM Corp., 336 F.Supp.2d 1, 11 (D. Mass. 2004)). These requirements are either enforced by appropriate government officials or private entities, not individuals. See 15 U.S.C. § 1681s-2. For example, § 1681s-2(a), which requires that furnishers of credit information provide consumer reporting agencies with accurate information, may only be enforced by government officials. See 15 U.S.C. § 1681s-2(d). Plaintiff does not have a private right of action under the FCRA against any of the Defendants for furnishing alleged inaccurate information to the credit bureaus. Adams v. AT&T, No. 7:20-CV-02015-TMC-KFM, 2020 WL 4820495, at *2 (D.S.C. July 15, 2020), report and recommendation adopted sub nom., 2020 WL 4820202 (D.S.C. Aug. 19, 2020); 15 U.S.C. § 1681s-2(d); Gibbs v. SLM Corp., 336 F.Supp.2d 1, 12 (D. Mass. 2004), aff'd, 2005 WL 5493113 (1st Cir. Aug. 23, 2005). Plaintiff cannot pursue a private right of action against these defendants for the alleged furnishing of inaccurate information to credit bureaus. Plaintiff's claims he is attempting to pursue via the FCRA are subject to summary dismissal. Amendment regarding such claims would be futile as statutorily Plaintiff cannot pursue nor receive relief against these defendants for such FCRA claims he attempts to assert.
RECOMMENDATION
It is recommended that the District Court dismiss the FCRA claims in this action without prejudice and without issuance and service of process. This same day an order has been issued serving all Defendants as to Plaintiff's FDCPA claims.
The undersigned notes amendment of the complaint here would be futile and the basis of summary dismissal of certain claims makes clear Plaintiff could not save such FCRA claims “by merely amending his complaint.” Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015), abrogated in part by Bing v. Brivo Sys., LLC, 959 F.3d 605, 614-15 (4th Cir. 2020).
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
Post Office Box 2317
Florence, South Carolina 29503
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).