Opinion
6:19-cv-00608 (MAD/TWD)
06-09-2020
FRANCIS D. SPELLICY, Plaintiff, v. DOE #1 DEBT COLLECTOR, Defendant.
APPEARANCES: FRANCIS D. SPELLICY Plaintiff, pro se 137 East Water Street, #10 Syracuse, NY 13202
APPEARANCES: FRANCIS D. SPELLICY
Plaintiff, pro se
137 East Water Street, #10
Syracuse, NY 13202 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
The Clerk has sent to the Court the amended complaint submitted by pro se Plaintiff Francis D. Spellicy against Defendant Doe #1 Debt Collector for initial review. (Dkt. Nos. 9, 10.) Previously, by Order and Report-Recommendation filed August 12, 2019 (the "Report-Recommendation"), this Court granted Plaintiff's application to proceed in forma pauperis and recommended that Plaintiff's original complaint, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., be sua sponte dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relieved may be granted and as time- barred. (Dkt. No 7.) On August 23, 2019, Plaintiff filed objections to the Report-Recommendation. (Dkt. No. 8.) On September 20, 2019, prior to the District Court acting on the Report-Recommendation, Plaintiff filed an amended complaint. (Dkt. No. 9.) By Order filed September 24, 2019, the Honorable Mae A. D'Agostino, United States District Judge, noted that pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiff was entitled to amend his complaint once as a matter of course. (Dkt. No. 10.) As such, the amended complaint was referred to this Court for initial review and the Report-Recommendation was terminated as moot. Id. For the reasons that follow, the Court recommends that Plaintiff's amended complaint be dismissed pursuant to 28 U.S.C. § 1915(e) without leave to amend.
II. DISCUSSION
A. Standard of Review
Inasmuch as Plaintiff is presently proceeding in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the amended complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (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." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim 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). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). Moreover, a court should not dismiss a pro se complaint "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. The Amended Complaint
Plaintiff's amended complaint is similar in substance to the original complaint. (Dkt. Nos. 1, 9.) Notably, Plaintiff has "abandoned" his FDCPA claim as "too difficult to remedy" and "attempts to remedy issues of timeliness, diligence, and stating a claim per FRCA 15 U.S.C. [§] 1681s-2(b) [("Section 1681s-2(b)")] against Defendant Doe #1 Debt Collector. (Dkt. No. 9 at 1.)
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
The amended complaint states Defendant Doe #1 Debt Collector attempted to collect a debt not owed to "them" by Plaintiff. Id. Plaintiff informed Defendant, both verbally and in writing, "to cease and desist its harassing, threatening behavior," advising "I owe no one." Id. By way of background, in the original complaint, Plaintiff explained the alleged debt at issue stems from his visit to the emergency room at University Hospital, located in Syracuse, New York, in "late 2015 or early 2016," which was paid "in full" by his insurance company. (Dkt. No. 1 at 6, 10.) Nevertheless, "some months later," Defendant Doe #1 Debt Collector sent Plaintiff a bill for that emergency room visit and made numerous harassing telephone calls attempting to collect the alleged debt, which Plaintiff did not owe. Id. at 6. In June 2016, Plaintiff disputed the charge and "instructed the debt collector to cease and desist all harassment." Id. at 7.
In August of 2016, Plaintiff moved to Delaware. (Dkt. No. 9 at 1, see also Dkt. No. 1 at 3, 7, 9.) "Plaintiff stopped being contacted by [Defendant] Doe #1 [Debt Collector] prior to moving to Delaware." (Dkt. No. 9 at 1.) However, "Plaintiff's credit score had been dinged almost simultaneously upon his arrival in Dover, Delaware. I fell to 590 from above 620. 620 is the threshold needed to qualify to rent a home in Dover, DE." Id. Despite numerous attempts over the course of two months, Plaintiff was unable to secure rental housing. Id. At the time he was unsure "why he was denied application for housing." Id.
In "Spring of 2017," Plaintiff "finally identified the culprit of his credit score woes, as University Hospital and Syracuse Orthopedics Surgeons who share a common collection agent in Liverpool, NY." Id. at 2. Plaintiff claims the "entire problem grew from an alleged billing error. In which double dipping was attempted in Plaintiff's identify without this knowledge." Id.
The Court notes both the original and amended complaints contain allegations of "double dipping," whereby Plaintiff claims Defendant Doe #1 Debt Collector submitted "false claims" to the New York State Workers' Compensation Board for the emergency room visit at issue because Plaintiff's insurance company paid the debt "in full." (Dkt. Nos. 9 at 3, 1 at 4.)
Plaintiff "used Credit Karma, which reports all three credit reporting agencies in one report." Id. "Plaintiff had no bills on credit, no lines of credit open, nor was seeking no credit in 2016 or 2017. Only housing which he had been approved for prior to the September 2016 move." Id. He filled out the "dispute portion, Karma site provide to challenge false information, and followed guidance to open a credit card to boost credit rating." Id. "Plaintiff cautiously waited one month and checked rating 597, and the negative collection data was removed." Id. In September of 2017, Plaintiff "avoided sub-agents and applied directly with a home owner for a 2 bedroom unit." Id. "Application denied; reason given, Plaintiff was in collection." Id.
Plaintiff contacted an attorney in Philadelphia and scheduled a meeting with her on November 22, 2017, to sign documents and "let her sue the parties involved." Id. Plaintiff, who is a cancer patient at University Oncology, also had a meeting scheduled on November 17, 2017, to meet "face to face" with "billing to attempt to acquire a hardcopy data for my attorney." Id. Plaintiff claims "Univ. Hosp. billing had already admitted it started the false billing and debt collection process." Id. By November 15, 2017, Plaintiff had obtained "hard copy from N.Y. State workman's compensation, for false claim." Id. at 3. "All copies of credit reports were obtained." Id. "Plaintiff was diligent and done asking nicely for [Defendant] Doe #1 [Debt Collector] to act ethically." Id.
In the original complaint, Plaintiff stated that he received a telephone call from the New York State Workers' Compensation Board in late February 2017. (Dkt. No. 1 at 9.) From this telephone call, Plaintiff became aware "that [Defendant] had place[d] derogatory information on his credit report " and was "using Plaintiff's identity without his knowledge to obtain payment" from the Workers' Compensation Board, which was an attempt "to double dip on [the disputed] debt." Id. at 4, 9.
However, on November 15, 2017, an "extraordinary thing" happened and Plaintiff was "falsely arrested" and held "on no bail by a very out of balance court, run by the influence of William Fitzpatrick, D.A., who had operated a vendetta against Plaintiff for years." Id. at 3. "This action for false arrest, the taking of Plaintiff's person, place, and things, with no opportunity for bail, strangled and frustrated his ability to move this action forward." Id. Plaintiff was denied access to phone books and did not have access to his phone records. Id. "Plaintiff wrote to University Hospital twice with no response." Id. Plaintiff "filed a FOIA for documents and records, never answered." Id.
Approximately one year later, on November 18, 2018, Plaintiff was transferred into custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Id. While incarcerated, among other things, Plaintiff was transferred to numerous facilities, which further frustrated his abilities to "make legitimate inquires" as to the identity of Defendant Doe #1 Debt Collector because his legal mail was not forwarded to him. Id.
According to the public website maintained by DOCCS, Plaintiff was received into custody on November 19, 2018, and received an indeterminate sentence of between two and four years for burglary in the third degree, a class D felony. Plaintiff was released to parole on November 14, 2019. See http://nysdoccslookup.doccs.ny.gov (DIN 18B3023) (last visited June 8, 2020).
By Spring of 2019, Plaintiff finally had access to a computer and began researching civil law, FDCPA, and FCRA. Id. Plaintiff also "wrote to over 15 attorneys." Id. By letters dated March 26, 2019, the credit reporting agencies denied Plaintiff access to his "once a year free credit report." Id. Although Defendant Doe #1 Debt Collector is "not directly responsible" for the actions of the New York State police and other state actors, related to the November 15, 2017, arrest and his subsequent confinement, Plaintiff claims Defendant Doe #1 Debt Collector has "benefited" from the various non-parties' actions, in part, because University Hospital "hid [the debt collector's] identity." Id. Accordingly, Plaintiff contends "equitable tolling" should apply to his FCRA claim because from November 15, 2017, until November 14, 2019, despite his "due diligence" he was "stonewalled" and "denied" his free annual credit report. Id. at 4-11. Plaintiff requests monetary damages. Id. at 14. For a complete statement, reference is made to the amended complaint.
C. Analysis
The FCRA "regulates credit reporting procedures to ensure the confidentiality, accuracy, relevancy, and proper utilization of consumers' information." Longman v. Wachovia Bank, N.A., 702 F.3d 148, 150 (2d Cir. 2012) (citing 15 U.S.C. § 1681(b)). The FCRA imposes two general duties on "furnishers of information" to a credit reporting agency: (1) a duty to provide accurate information under Section 1681s-2(a); and (2) a duty to undertake an investigation upon receipt of notice of dispute from a consumer reporting agency under Section 1681s-2(b). Id. Although there is no private right of action under Section 1681s-2(a), courts recognize a private right of action for willful or negligent non-compliance with Section 1681s-2(b). Nguyen v. Ridgewood Sav. Bank, 66 F. Supp. 3d 299, 305 (E.D.N.Y. 2014) (collecting cases).
The term "furnishers of information" is not defined in the statute, see 15 U.S.C. § 1681a, but it has been interpreted to mean "entities that transmit, to credit reporting agencies, information relating to debts owed by consumers." Kane v. Guaranty Residential Lending, Inc., No. 04-CV-4847, 2005 WL 1153623, at *3 (S.D.N.Y. May 16, 2005) (collecting cases). The Court assumes for purposes of this Order and Report-Recommendation that Defendant Doe #1 Debt Collector is alleged to be a furnisher of information.
The Court construes Plaintiff's amended complaint as alleging a violation of Section 1681s-2(b). (Dkt. No. 9 at 1.) To state a claim under Section 1681s-2(b), a plaintiff-consumer must show that (1) a furnisher received notice of a credit dispute from a credit reporting agency (as opposed to from the consumer alone) and (2) the furnisher negligently or willfully failed to conduct a reasonable investigation. Jackling v. HSBC Bank USA, N.A., No. 15-CV-6148 (FPG), 2019 WL 162743, at *4 (W.D.N.Y. Jan. 10, 2019); Redhead v. Winston & Winston, P.C., No. 01 Civ. 11475, 2002 WL 31106934, at *5 (S.D.N.Y. Sept. 20, 2002). The reasonableness of a furnisher's investigation depends upon the nature and scope of the consumer's dispute. See Okocha v. HSBC Bank USA, N.A., No. 08-CV-8650, 2010 WL 5122614, at *6 (S.D.N.Y. Dec. 14, 2010) (examining the reasonableness of a furnisher of information's investigation based upon "what it was told by the credit bureau"). The FCRA does not require that a furnisher of information delete a consumer's disputed account, but rather "simply requires the furnisher of information to investigate and to report information from the investigation." Ritchie v. N. Leasing Sys., Inc., No. 12-CV-4992, 2016 WL 1241531, at *17 (S.D.N.Y. Mar. 28, 2016).
To the extent Plaintiff alleges Defendant Doe #1 Debt Collector reported derogatory credit information that it knew was false, which lowered his credit score, such claim would fall under Section 1681s-2(a). However, as noted above, there is no private right of action for a violation of Section 1681s-2(a).
Here, Plaintiff has not plausibly alleged either element of a Section 1681s-2(b) violation. While Plaintiff claims that in the Spring of 2017 he notified Credit Karma of the disputed debt at issue, he does not allege that Defendant Doe #1 Debt Collector received notice of Plaintiff's disputed debt from a consumer credit agency and thereafter acted in willful or negligent noncompliance with the statute. Plaintiff's amended complaint therefore fails to state a claim against Defendant Doe #1 Debt Collector under Section 1681s-2(b) of the FCRA. Accordingly, the Court recommends sua sponte dismissing the amended complaint pursuant to 42 U.S.C. § 1915(e).
Normally, when a pro se plaintiff's complaint is facially deficient, he or she is given at least one chance to amend the complaint to state a viable claim. Here, Plaintiff was afforded such an opportunity and still failed to state a claim. (Dkt. No. 10.) The Court is cognizant that Plaintiff's amended complaint also purports to "remedy the timeliness issue" discussed in the Report-Recommendation. However, as discussed above, because Plaintiff filed the amended complaint as a matter of right, the Report-Recommendation was terminated as moot. (Dkt. No. 10.) Nevertheless, the Court has thoroughly reviewed Plaintiff's equitable tolling arguments and, for reasons explained below, finds such relief is not warranted in this case. See In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (noting that the doctrine of equitable tolling permits a court, "under compelling circumstances, [to] make narrow exceptions to the statute of limitations in order 'to prevent inequity'").
In the amended complaint, Plaintiff names Defendant Doe #1 Debt Collector as the sole defendant in this action. While a plaintiff may bring an action against an unidentified "Doe" defendant, the plaintiff must identify and serve that individual within the statute of limitations for the conduct alleged. See Sewell v. Bernardin, 795 F.3d 337, 342 (2d Cir. 2015). Although the statute of limitations is an affirmative defense, district courts may sua sponte dismiss an untimely claim where the plaintiff's own papers on their face set forth the facts pertinent to the defense. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint may be dismissed sua sponte based on a statute of limitations defense "that appears on the face of the complaint"); see also Lent v. CCNH, Inc., No. 5:13-CV-942 (MAD/ATB), 2015 WL 3463433, at *9 (N.D.N.Y. June 1, 2015) (citing Waldron v. Milana, No. 5:10-CV-0065, 2013 WL 2445047 (N.D.N.Y. June 5, 2013)). Nonetheless, a district court typically should not dismiss claims as time-barred without providing a pro se plaintiff with "notice and opportunity to be heard" as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
A claim arising under the FCRA must be brought "not later than the earlier of: (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs." 15 U.S.C. § 1681p. "The shorter two year-year limitation runs from the date that [the plaintiff] was on 'inquiry notice' of a[] FCRA violation." Andresakis v. Capital One Bank (USA) N.A., No. 09 Civ. 08411(DAB)(FM), 2011 WL 846830, at *3 (S.D.N.Y. Feb. 3, 2011), report and recommendation adopted by 2011 WL 1097413 (S.D.N.Y. Mar. 23, 2011).
Statutes of limitations, however, are also subject to equitable tolling in appropriate circumstances. Equitable tolling applies in extraordinary circumstances where a plaintiff shows: (1) the defendant concealed the existence of the plaintiff's cause of action; (2) the plaintiff remained ignorant of that cause of action until some point within the limitations period; and (3) the plaintiff's continuing ignorance was not due to lack of diligence. See New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988). The concealment element is met when the plaintiff shows either that the affirmative acts of the defendant prevented discovery of the plaintiff's claim or that the wrong itself was self-concealing. See id. "[E]ven assuming equitable tolling applie[s] to FCRA claims," Trans Union LLC v. Lindo, 393 F. App'x 786, 789 (2d Cir. 2010), the Court finds such relief is not warranted in this case.
Plaintiff commenced this action by filing his original complaint on May 20, 2019. (Dkt. No. 1.) The amended complaint states that in "Spring of 2017" Plaintiff learned his credit score was damaged. The Court notes that in the original complaint, Plaintiff stated he learned of his damaged credit in February of 2017 an "filed a challenge to credit reporting agencies, Experian, Trans Union, Equifax . . . in late February 2017." (Dkt. No. 1 at 4, 9.) Consequently, to be timely, Plaintiff needed to commence this action within two years of that discovery. See Marcinski, 36 F. Supp. 3d at 209 (finding "based on the unambiguous language of the FCRA as well as its stated purpose, the statute of limitations began to run . . . when [the plaintiff] discovered that [the defendants] had failed to comply with their FCRA duties[.]"). Here, even assuming the Defendant Doe # 1 Debt Collector received notice of the credit dispute from a credit reporting agency and then had an additional 30 days to comply with its obligations under Section 1681s-2(b) to conduct a reasonable investigation, the two-year statute of limitations would have expired before Plaintiff commenced this action on May 20, 2019. While Plaintiff has alleged a so-called series of "extraordinary events," all which stem from his November 15, 2017, "false arrest" and resulting incarceration, such events do not involve Defendant Doe #1 Debt Collector in any way. Plaintiff's assertion that Defendant Doe #1 Debt Collector "indirectly" benefited from the "extraordinary events" of other non-party actors is meritless. Therefore, and for the reasons discussed above, the Court finds Plaintiff's FCRA claim against Defendant Doe #1 Debt Collector is also barred by the two-year statute of limitations.
Under the prison mailbox rule, a pro se complaint submitted by a prisoner is deemed "filed" at the time it was delivered to "prison authorities for forwarding to the court clerk." Houston v. Lack, 487 U.S. 266, 276 (1988); see also Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). The date that a complaint is signed is the date that the prisoner is presumed to have handed that complaint to a prison guard for mailing. See Shaw v. Superintendent, No. 03-CV-0610 (NPM), 2007 WL 951459, at *3 n. 3 (N.D.N.Y. Mar. 28, 2007); Garraway v. Broome Cty., No. 03-CV-0681 (TJM), 2006 WL 931729, at *3-4 (N.D.N.Y. Apr. 7, 2006). Plaintiff's original complaint is dated May 20, 2019, and was filed by the Clerk's office on May 22, 2019. (Dkt. No. 1 at 14.)
Given the nature of the FCRA claim at issue, the Court finds Plaintiff would be unable to cure the deficiencies in the amended complaint and therefore recommends Plaintiff's amended complaint be dismissed without leave to amend. Cuoco, 222 F.3d at 112.
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 9) be DISMISSED WITHOUT LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: June 9, 2020
If you are proceeding pro se and are served with this Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge