United States District Court, W.D. Tennessee, Western Division
January 26, 2015
JOEL B. CARTER, Plaintiff,
JERRY COLLINS, CEO of MEMPHIS, LIGHT, GAS & WATER, Defendants
Joel B. Carter, Plaintiff, Pro se, Memphis, TN.
REPORT AND RECOMMENDATION
TU M. PHAM, United States Magistrate Judge.
On January 5, 2015, plaintiff Joel B. Carter filed a complaint against Jerry Collins, the CEO of Memphis, Light, Gas, and Water (" MLGW"), accompanied by an application to proceed in forma pauperis . (ECF Nos. 1 & 2.) On January 23, 2015, the court granted Carter's in forma pauperis application. (ECF No. 5.) Pursuant to Administrative Order 2013-05, this case has been referred to the magistrate judge for pretrial management.
I. PROPOSED FINDINGS OF FACT
Carter's complaint stems from the alleged " unlawful termination of utilities due to a bill dispute." (Compl. at 3.) According to Carter, the " dispute was not resolved and [the utilities] were cut off anyway." (Compl. at 3.) Carter alleges that he did not have enough time to resolve the dispute and that no one from MLGW ever " knocked at his door" before cutting off the utilities. (Compl. at 3.) Carter cites the " Fair Billing Act" and Fair Debt Collection Practices Act (" FDCPA"), and appears to assert a state law unjust enrichment claim. (Compl. at 3.) In a letter to MLGW attached as an exhibit to his complaint, Carter also cites to the Racketeer Influenced and Corrupt Organizations Act (" RICO"), 18 U.S.C. 1961 et seq., various federal criminal statutes, the Tennessee Consumer Protection Act (" TCPA"), and fraud. (Compl. Ex. A.) Carter's request for relief is that MLGW " restore [his] lights" and that he receive $2 million in damages. (Compl. at 3.)
II. PROPOSED CONCLUSIONS OF LAW
A. Standard of Review
The court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if 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 assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Accepting all well-pleaded allegations in the complaint as true, the court " consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief."
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). " [P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."
Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (" Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests.").
" Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams, 631 F.3d at 383 (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.App'x 608, 613 (6th Cir. 2011) (" [A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading") (internal quotation marks omitted); Payne v. Sec'y of Treasury, 73 F.App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, " [n]either this court nor the district court is required to create Payne's claim for her");
cf. Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (" District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F.App'x 506, 510 (6th Cir. 2011) (" [W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.")
B. Fair Credit Billing Act Claim
Carter cites to the " Fair Billing Act" in his complaint, and the court assumes Carter is trying to assert a claim under the Fair Credit Billing Act (" FCBA"), 15 U.S.C. § § 1666-1666i. The FCBA and its implementing regulations (Regulation Z), 12 C.F.R. § § 226.1 et seq., " set forth the procedures to be followed when a creditor receives notice from a consumer of an alleged billing error in the consumer's credit card account." Burnstein v. Saks Fifth Avenue & Co., 208 F.Supp.2d 765, 772 (E.D. Mich. 2002). Carter does not identify in his complaint the provisions of the Fair Credit Billing Act that Collins and MLGW allegedly violated, but the court assumes that Carter is proceeding under § 1666, the provision of the FCBA dealing with correction of billing errors. Section 1666 imposes certain reporting requirements on creditors " who are defined as persons who regularly extend consumer credit payable in installments." Phillips v. Cumberland Mountain Retreat, P.O.A., No. 2: 06-0060, 2007 WL 540761, at *2 (M.D. Tenn. Feb. 15, 2007); 15 U.S.C. § 1602(f) (defining " 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 . . . is initially payable."). There are no specific factual allegations in the complaint to support a finding that Collins or MLGW are creditors within the meaning of the FCBA. Therefore, the FCBA claim against Collins should be dismissed. See Hayes v. Shelby Cnty. Tr., 971 F.Supp.2d 717, 729-30 (W.D. Tenn. 2013) (dismissing FCBA claim against MLGW and other defendants).
C. FDCPA Claim
The reference to the FDCPA is insufficient to state a claim because the complaint fails to allege that Collins or MLGW are " debt collectors" within the meaning of the statute. The purpose of the FDCPA is " to eliminate abusive debt collection practice by debt collectors." 15 U.S.C. § 1692. Under the FDCPA, a " debt collector" is defined as " any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts . . . ." 15 U.S.C. § 1692a(6). Carter fails to allege any facts demonstrating that the principal purpose of any of the defendants is collecting debts. See Collins v. Mortg.
Elec. Registration Sys., Inc., No. 3:11-cv-00264, 2012 WL 610191, at *7 (M.D. Tenn. Feb. 24, 2012) (dismissing FDCPA claim " [b]ecause the instant Defendants are not creditors"). Accordingly, the complaint fails to state a claim under the FDCPA and that claim should be dismissed. See Hayes, 971 F.Supp.2d at 730 (dismissing FDCPA claim against MLGW and other defendants).
D. Claims for Violations of Criminal Statutes
In his letter to MLGW, Carter also cites various federal criminal statutes, including 18 U.S.C. § § 472, 473, 474, 1349, 1346, and 1350. However, " [a]bsent a private right of action, a plaintiff cannot recover civilly for violation of a criminal statute."
Hayes, 971 F.Supp.2d at 735 (citing Collins v. Mortg. Elec.
Registration Sys., Inc., No, 3:11-cv-00264, 2012 WL 610191, at *7 (M.D. Tenn. Feb. 24, 2012) (dismissing claims brought against defendants including MLGW under 18 U.S.C. § § 1349, 1346, and 1350). Therefore, any claims brought under these statutes should be dismissed.
E. RICO Claim
As for any alleged RICO violation, the complaint does not identify the provisions of RICO that Collins or MLGW allegedly violated. The court assumes that Carter is proceeding under section 1964(c), RICO's provision authorizing civil suits for a violation of 18 U.S.C. § 1962. It provides, in pertinent part that " any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court." 18 U.S.C. § 1964(c). To establish a violation of section 1962, a plaintiff must show: " (1) that there were two or more predicate offenses; (2) that an 'enterprise' existed; (3) that there was a nexus between the pattern of racketeering activity and the enterprise; and (4) that an injury to business or property occurred as a result of the above three factors." VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 699 (6th Cir. 2001). An " enterprise" can be proven by showing (1) that a group of persons formed an ongoing organization; (2) that they functioned as a continuing unit; and (3) that the organization was separate from the pattern of racketeering activity in which it engaged. Id. Carter's complaint contains no factual allegations to support any of the elements of a RICO cause of action. Therefore, it is recommended that Carter's RICO claim be dismissed.
See Hayes, 971 F.Supp.2d at 731-32 (dismissing RICO claims against MLGW and other defendants).
F. Supplemental Jurisdiction Over State-Law Claims
The court has determined that every federal claim asserted by Carter should be dismissed for failure to state a claim. Without a basis for federal jurisdiction, the court should not exercise supplemental jurisdiction over any state-law claims brought by Carter. See 28 U.S.C. § 1367(c)(3) (" The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction."). Accordingly, it is recommended that the state-law claims, including any fraud, unjust enrichment, or TCPA claims be dismissed pursuant to 28 U.S.C. § 1367(c)(3). See
Hayes, 971 F.Supp.2d at 737 (dismissing state-law claims against MLGW and other defendants).
For the reasons above, it is recommended that Carter's entire complaint be dismissed.