Opinion
C. A. 6:22-cv-00443-HMH-JDA
04-11-2022
Aqueisha Camerelle Payne, Plaintiff, v. LVNV Funding LLC, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge.
Aqueisha Camerelle Payne (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action against LVNV Funding LLC (“Defendant”). [Doc. 1 at 1-2.] This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C. Having reviewed the Complaint in accordance with applicable law, the Court finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff commenced this action by filing a Complaint against Defendant on February 11, 2022. [Doc. 1.] By Order dated March 10, 2022, the Court notified Plaintiff that this action was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 8.] The Court noted, however, that Plaintiff may be able to cure the deficiencies of her Complaint and granted Plaintiff twenty-one days to amend the Complaint. [Id. at 12-13.] Further, Plaintiff was specifically warned as follows:
The undersigned takes judicial notice that Plaintiff has recently filed similar actions in other courts against other defendants making similar allegations to those she makes here. See, e.g., Payne v. Auto Advantage Finance LLC, No. 5:22-cv-00172 (W.D. Okla. Feb. 28, 2022); Payne v. Nat'l Credit Sys., Inc., No. 1:22-cv-00607-SDG-JKL (N.D.Ga. Feb. 10, 2022).
If Plaintiff fails to file an amended complaint that corrects the deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal, with prejudice, pursuant to 28 U.S.C. § 1915 and without leave for further amendment.[Id. at 13.] Nevertheless, Plaintiff has not filed an amended complaint, and she has failed to cure the deficiencies identified by the Court in its Order.
Because Plaintiff did not respond to the Court's Order, and the time for response has lapsed, she has failed to prosecute this case and has failed to comply with an Order of this Court. Because Plaintiff has already ignored this Court's Order and deadlines, sanctions less drastic than dismissal would not be effective. Accordingly, as an additional basis for dismissal, the case should be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
Plaintiff has attached to her Complaint thirty-seven pages of documents that include the following: (1) an “Affidavit of Truth” [Doc. 1-1 at 1-8]; (2) an “Invoice” to Defendant dated February 2, 2022, requesting payment of $2,033,480 [ id. at 9-10]; (3) “Exhibit #1, ” which includes written correspondences from Alltran Financial, LP, and Resurgent Capital Services; account statements from Credit One Bank; and information about Plaintiff's credit reports from Credit Karma [id. at 12-20]; (4) “Exhibit #2, ” which includes account statements and information from Defendant and copies of an online profile for Defendant from the Better Business Bureau [id. at 21-30]; (5) “Exhibit #3, ” which includes notes from a doctor concerning Plaintiff's depression and a drug description sheet for the medication Escitalopram from a Walgreens Pharmacy [id. at 31-35]; and (6) a copy of Plaintiff's birth certificate [id. at 36].
The allegations from the Complaint are difficult to decipher. However, the Court has carefully reviewed each of Plaintiff's documents and is able to glean the following allegations and relevant information. Plaintiff purports to bring this action under this Court's federal question jurisdiction, citing the following federal statues: the Truth in Lending Act (“TILA”), the Fair Credit Reporting Act (“FCRA”), and the Fair Debt Collections Practices Act (“FDCPA”). [Doc. 1 at 3.] However, Plaintiff does not explain how Defendant has violated any of these statutes. Instead, Plaintiff makes confusing, vague, and conclusory allegations throughout her Complaint and attachments.
In sum, Plaintiff alleges that she has been subjected to “seemingly interminable oppression as the result of unfair and deceptive practices imposed upon [her].” [Id. at 6.] She contends she has invested hundreds of hours in her “pursuit of liberation from the confines of the abuse that have obstructed the access to the rights, protection, and securities; which are the birthright of [Plaintiff] and [her] 3 minor children, as creations of the Divine Creator of all existence.” [Id.] Plaintiff contends Defendant has engaged in “malicious actions” in “blatant disregard to Supreme Law.” [Id.] Plaintiff makes numerous other allegations in her Complaint similar to those above. The only allegation from the body of the Complaint that appears relevant in any way to a purported violation of the statutes noted above is Plaintiff's assertion that “[t]he intentional negligence of [Defendant] to comply with guidelines, statutes, and laws that govern commerce has resulted in great harm to [Plaintiff], and this must be rectified.” [Id. at 7.] Plaintiff then provides a summary of the exhibits attached to her Complaint, which is produced below substantially verbatim:
Exhibit #1 - Within the pages of this exhibit are documents that serve as evidence to support the claims that the Defendant(s) have violated the Plaintiff by the Publication of Delinquency; Reporting false representation of character, amount, or legal status of debt; Communicating personal credit information known to be false; Use of false representation of deceptive means to collect debt; Collection of any amount unless permitted by law; Taking nonjudicial action to effect dispossession; Fraudulent use of credit card (ending in 6661);
Wilfully and knowingly giving false information; Failing to provide information that is required to be disclosed; Failure to properly reflect payment on statement;
Exhibit # 2 - Within the pages of this exhibit are documents that serve as evidence which support the claims that the Defendant(s) have violated the Plaintiff by the Publication of Delinquency of disputed account; Reporting false representation of character, amount, or legal status of debt; Communicating personal credit information known to be false; Use of false representation of deceptive means to collect debt; Collection of any amount unless permitted by law; Fraudulent use of credit card (ending in 6661); Wilfully and knowingly giving false information; Failing to provide information that is required to be disclosed; Reporting of disputed amount as delinquent to 3rd party; Failure to properly reflect payment on statement; Imposing of a surcharge; failure to delete account from ALL credit reporting agencies which were furnished with the invalid information; and Knowingly reporting inaccurate information.
Exhibit #4 - Within the pages of this attached exhibit are documents that serve as evidence of a small portion of the pain and suffering claims that have resulted due to the intentional failure of Defendant(s) to comply with Law.[Id. at 7-8.]
For her injuries, Plaintiff contends that, since July 23, 2019, Defendant “has knowingly reported inaccurate and obscene information to (2) two of the (3) three major consumer CRA's (Credit Reporting Agencies)” and that “[t]his fraudulent use of my personal information and credit card . . . over the past 29 months has undeniably slandered my name in the realm of commerce.” [Id. at 6.] For her relief, Plaintiff seeks payment in the amount of $2,033,480 in accordance with an invoice she submitted as well as $250,000 to compensate her pain and suffering. [Id. at 5, 7.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. As a pro se litigant, Plaintiff's pleadings 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 petition 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). “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).
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, this Court possesses the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint were not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307S08 (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 Fed.Appx. 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 Street 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).
DISCUSSION
Plaintiff's Complaint is subject to summary dismissal because it fails to state a claim for relief and/or because it is legally frivolous.
Failure to State a Claim
As noted, Plaintiff purports to seek damages from Defendant for violations of TILA, FRCA, and FDCPA. However, as an initial matter, Plaintiff's Complaint asserts only vague and conclusory assertions rather than any specific factual allegations regarding any statutory violations. As such, Plaintiff's allegations fail to state a claim for relief that is plausible as required under Iqbal and Twombly. See Iqbal, 556 U.S. at 678 (2009) (noting that “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”); Twombly, 550 U.S. at 556-57 (same). Plaintiff's Complaint is therefore subject to summary dismissal. Nevertheless, the Court will briefly address the pleading requirements to state a claim under each of the three statutes.
TILA
“TILA was enacted to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit[, ] . . . requires creditors to provide borrowers with clear and accurate disclosures of terms, and imposes criminal penalties and civil liability on creditors who fail to do so.” Jackson v. Flagstar Bank, No. 6:21-cv-02158-HMH-KFM, 2021 WL 4464280, at *2 (D.S.C. Sept. 8, 2021) (citations and internal quotation marks omitted), Report and Recommendation adopted by 2021 WL 4462248 (D.S.C. Sept. 29, 2021). TILA defines a “creditor” as
a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness.15 U.S.C. § 1602(g).
Here, Plaintiff has not alleged facts showing that Defendant is a creditor under TILA. Further, to the extent Defendant is a creditor under TILA, Plaintiff has not alleged facts showing that Defendant failed to provide her with clear and accurate disclosures of terms. As such, Plaintiff's TILA claim is subject to summary dismissal.
FCRA
“[T]he FCRA governs consumer credit reporting practices . . . [and] 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.'” Thomas v. Lakeview Loancare, LLC, No. 4:20-cv-4252-SAL-TER, 2021 WL 2904992, at *1 (D.S.C. Feb. 18, 2021) (citations omitted), Report and Recommendation adopted by 2021 WL 2903248 (D.S.C. July 9, 2021). However, these requirements are enforceable only by certain government officials or private entities and not by individuals. Id. (citing 15 U.S.C. §§ 1681s-2, 1681s-2(a), and 1681s-2(d)). As such, an individual does not have a private right of action under the FCRA against any furnisher of information for furnishing alleged inaccurate information to the credit bureaus. Id.; see also Adams v. AT&T, No. 7:20-cv-02015-TMC-KFM, 2020 WL 4820495, at *2 (D.S.C. July 15, 2020) (explaining a plaintiff does not have a private right of action under the FCRA against the furnisher of information for furnishing alleged inaccurate information to the credit bureaus), Report and Recommendation adopted by 2020 WL 4820202 (D.S.C. Aug. 19, 2020). Accordingly, because Plaintiff cannot pursue a private right of action against Defendant for the alleged furnishing of inaccurate information to credit bureaus, her FCRA claim is subject to summary dismissal. Thomas, 2021 WL 2904992, at *1 (noting that “[a]mendment regarding such claims would be futile” because the plaintiff could not pursue relief under the statute against the defendants).
FDCPA
“To state a claim under the FDCPA, a plaintiff must plausibly allege that (1) he was the object of collection activity arising from consumer debt as defined in the FDCPA; (2) defendants are debt collectors as defined in the FDCPA; and (3) the defendants engaged in an act or omission prohibited by the FDCPA.” Adams, 2020 WL 4820495, at *2.
Here, Plaintiff has failed to allege facts showing that Defendant is a debt collector as defined in the FDCPA. Likewise, Plaintiff has failed to allege facts showing that Defendant has engaged in any acts or omissions prohibited by the FDCPA. Accordingly, Plaintiff's claim under the FDCPA is subject to summary dismissal.
Frivolous Allegations
Lastly, putting aside the issues already discussed, it is equally clear that Plaintiff's Complaint is substantively without merit to the extent she is asserting claims as a sovereign citizen. As noted, 28 U.S.C. § 1915 permits an indigent litigant to proceed in forma pauperis, which allows the litigant to commence a federal court action without prepaying the administrative costs of proceeding with the lawsuit. See Staley v. Witherspoon, No. 9:07-cv-195-PMD-GCK, 2007 WL 1988272, at *1 (D.S.C. July 3, 2007). However, the statute provides limitations to such actions by permitting the Court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted” or is “frivolous or malicious.” Id. (quoting 28 U.S.C. § 1915(e)(2)(B)). A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful, ” “fantastic, ” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotation marks omitted) (citing Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)).
In reviewing for frivolousness or malice, the Court looks to see whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004). The Court must accept all well-pled allegations and review the Complaint in a light most favorable to plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Nevertheless, it is well-settled that the Court has the authority to dismiss claims that are obviously “fantastic” or “delusional.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
Here, the Court finds that Plaintiff's bare allegations clearly fall within the statute's definition of frivolity and that her conclusory assertions fail to state a cognizable claim for relief, particularly to the extent Plaintiff bases her claims on the sovereign citizen theory. See Neitzke, 490 U.S. at 325; Brock v. Angelone, 105 F.3d 952, 953-54 (4th Cir. 1997). Although Plaintiff has not specifically identified herself as a sovereign citizen, her Complaint bears all of the hallmarks of the sovereign citizen theory. For example, Plaintiff signed the Complaint with her name and noted “All Rights Reserved. Without Prejudice. UCC 1-308.” [Doc. 1 at 8.] Likewise, Plaintiff has also filed an “Affidavit of Truth” in which she claims she is “the consumer in fact, natural person, original creditor, lender, executor, administrator, holder in due course for any and all derivatives thereof, for the surname/given name AQUEISHA CAMERELLE PAYNE and I have been appointed and accept being the executor both public and private for all matters proceeding, and I hereby claim that i will d/b/a AQUEISHA CAMERELLE PAYNE autograph as the agent, attorney in fact, so be it.” [Doc. 1-1 at 1 (emphasis in original).] Further, citing the Uniform Commercial Code and the Common Law, Plaintiff asserts that she “is NOT a legal fiction, a corporate person, or a corporation, ” that she “is not legally responsible, or legally accountable for any fictitious entity in this case, ” that she “is a living, flesh and blood FREE woman living upon the land, and a creation of the Divine Creator of all that exists in the universe of time and space, ” and that she “possesses the unlimited right to contract, as long as there is no infringement on the life, liberty, or property of someone else.” [Id. at 3 (emphasis in original).] Plaintiff's filings are replete with other similar allegations.
Each of these allegations are couched in terms of the sovereign citizen argument, which “has been rejected repeatedly by the courts.” Smith v. United States, No. 1:12-cv-00900, 2013 WL 5464723, at *1 (S.D. W.Va. Sept. 30, 2013) (quoting Nunn v. United States, No. 3:13-cv-12-MHT, 2013 WL 1099321, at *2 (M.D. Ala. Feb. 27, 2013)). Adherents to the sovereign citizen theory “believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior.” United States v. Ulloa, 511 Fed.Appx. 105, 106 n.1 (2d Cir. 2013); see also Presley v. Prodan, No. 3:12-3511-CMC-JDA, 2013 WL 1342465, at *2 (D.S.C. Mar. 11, 2013) (collecting cases describing the sovereign citizen movement and its common features), Report and Recommendation adopted by 2013 WL 1342539 (D.S.C. Apr. 2, 2013).
Federal courts have repeatedly rejected the sovereign citizen theory as baseless. See, e.g., United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (“Regardless of an individual's claimed status . . . as a ‘sovereign citizen' . . . that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented.”); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (describing the “sovereign citizen” theory as having “no conceivable validity in American law”); United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (defendant claimed he was “outside” the jurisdiction of the United States; however, the court found this argument to be “completely without merit” and “patently frivolous” and rejected it “without expending any more of this Court's resources on discussion”); Glover v. South Carolina, No. 5:16-cv-00969-JMC, 2017 WL 1836982, at *1 n.1 (D.S.C. May 8, 2017), appeal dismissed, No. 17-6846, 2017 WL 5197454 (4th Cir. Nov. 8, 2017). Thus, to the extent Plaintiff is asserting claims in this case based on the sovereign citizen theory, her claims are subject to summary dismissal as frivolous.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 without leave to amend and without issuance and service of process.
As noted, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated March 10, 2022. [Doc. 8.] Plaintiff has not filed an amended complaint or attempted to cure the deficiencies in her original filings. Accordingly, the undersigned recommends dismissal 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 plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice).
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300 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).