ALLEN v. KINGWOOD APARTMENTS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv992

v. )

)

KINGWOOD APARTMENTS, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff’s Application to

Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed

in conjunction with his pro se Complaint (Docket Entry 2). For the

reasons that follow, the Court will grant Plaintiff’s instant

Application for the limited purpose of recommending dismissal of

this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a claim.

LEGAL STANDARD

“The federal in forma pauperis [‘IFP’] statute, first enacted

in 1892 [and now codified at 28 U.S.C. § 1915], is intended to

guarantee that no citizen shall be denied access to the courts

‘solely because his poverty makes it impossible for him to pay or

secure the costs.’” Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with

filing fees, however, [is] not without its problems. Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants. In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully

obtaining relief against the administrative costs of bringing

suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in relevant

part, that “the court shall dismiss the case at any time if the

court determines that the action or appeal fails to state a claim

on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint falls short when it does not “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) (emphasis added) (internal citations omitted) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

-2-

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.!

BACKGROUND

Asserting claims under “42 U.S.C. § 1983” for “infringe[ment]

of [his] federal reporting rights in accordance with [T]litle 15[,

U]nited [S]tates [C]lode[, S]lection 1681,” and in “violat[ion of

his] 7 [A]mendment [rights]” (Docket Entry 2 at 4), Plaintiff

initiated this action against eight defendants: (1) “Kingwood

[A]partments;” (2) “Tan Del Toro” (“Defendant Del Toro”);

(3) “GSC;” (4) “Ms. Shannon Brumment” (“Defendant Brumment”) ;

(5) Ms. Susan Davis (“Defendant Davis”); (6) “Jon Perel”

(“Defendant Perel”); (7) “Mr. G. Terry Meyers” (“Defendant

Meyers”); and (8) “Donna Griffin” (“Defendant Griffin”) (id. at 1-

t Although “[a] document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

citations and quotation marks omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Office of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (‘A pro se

complaint . . . ‘must be held to less stringent standards than

formal pleadings drafted by lawyers.’ But even a pro se

complainant must plead ‘factual matter’ that permits the court to

infer ‘more than the mere possibility of misconduct.’” (first

quoting Erickson, 551 U.S. at 94; then quoting Iqbal, 556 U.S. at

679)).

-3-

3).* The Complaint’s statement of claim states in its entirety

that, “[Plaintiff] was denied [his s]creening report in accordance

[with] federal law[].” (Id. at 5.)

In addition, the Complaint states the following as the basis

for asserting claims under Section 1983:

[A rleceptionist [] infringed [Plaintiff’s] federal

reporting rights in accordance with [T]Jitle 15[, U]nited

[S]tates [C]lode[, S]ection 1681, to challenge inaccurate

information derived from third party reporting agencies

and/or Trans-union, Experian, and [Equifax] by not

emailing or mailing [Plaintiff his] screening report

and/or not making [his] screening report readily

available for []dispute [purposes] in accordance with

[the] Fair Credit Reporting Act [(the “FCRA’”)].

Furthermore, [Plaintiff] paid $150.00 [including af]

$50.00 application fee and [a] $100.00 holding .. . fee,

which violates [Plaintiff’s] 7 [A]mendment

[rights] . . . when the value in controversy exceeds

$20.00 the right to jury trial shall be

plre]served ... . It was communicated to [Plaintiff]

that application fee[s] were non-refundable[; however ]

holding fee[s] are refundable and [Plaintiff has] not

received a refund.

* Although the Complaint includes all Defendants its caption,

it fails to include all Defendants in its list of Defendants.

(Compare Docket Entry 2 at 1, with id. at 2-3.) Further, aside

from Kingwood Apartments and “staff,” the Complaint does not make

any specific allegations against any other Defendant. (See id. at

1-7.) Thus, the Complaint fails to establish a Section 1983 claim

against Defendants GSC, Del Toro, Brumment, Davis, Perel, Meyers,

and/or Griffin due to the lack of factual matter suggesting that

any of those Defendants violated Plaintiff’s federal constitutional

or statutory rights. See American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49 (1999) (requiring allegations of a “depriv[ation]

of a right secured by the Constitution or laws of the United

States” to state a claim under Section 1983); see also Jones v.

Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (“Section 1983 is

not itself a source of substantive rights, but rather provides a

method for vindicating federal constitutional and statutory

rights.”).

-4-

. . . .

The above[-]mentioned individuals are proxies and/or

overseers of Kingwood [A]partments and the staff was

acting under color of law when [Plaintiff] filled out a

paper application at [K]ingwood [A]partments in Chapel

[H]ill on 09/21/2019 and paid $150.00 using [Plaintiff’s]

debit card . . . . However, [a]ll [F]air [C]redit

reporting rights were violated when [Plaintiff] did not

receive a denial letter and [K]ingwood staff refused to

issue [Plaintiff a] screening report in accordance with

[federal l]aw.

(Id. at 4.) The Complaint further asserts that Plaintiff sustained

“[n]o injuries” (id. at 5) and requests “compensat[ion] for []

mental anguish and punitive damages in accordance with federal law”

(id. at 6).

DISCUSSION

I. No State Action

As an initial matter, to state a claim for relief under

Section 1983, Plaintiff must assert “that [he was] deprived of a

right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

(1999).3 “A person acts under color of state law only when

3 Specifically, Section 1983 provides, in pertinent part,

that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

(continued...)

-5-

exercising ‘power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law.’” Bailey v. Prince George’s Cnty., 34 F. Supp. 2d

1025, 1026 (D. Md. 1999) (quoting United States v. Classic, 313

U.S. 299, 326 (1941)). Put another way, “[t]he person charged

[under Section 1983] must either be a state actor or have a

sufficiently close relationship with state actors such that a court

would conclude that the non-state actor is engaged in the state’s

actions.” DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999);

see also Bailey, 34 F. Supp. 2d at 1026 (“The alleged infringement

of federal rights must be fairly attributable to the state.”

(citing Rendell–Baker v. Kohn, 457 U.S. 830 (1982))).

Further, “with respect to pleading requirements, [c]onclusory

allegations that [a party] acted under color of state law will not

suffice.” Estate of Williams-Moore v. Alliance One Receivables

Mgmt., Inc., 335 F. Supp. 2d 636, 648 (M.D.N.C. 2004) (internal

citations omitted). Here, Plaintiff asserts claims against two

private companies, Kingwood Apartments and GSC, and six

individuals, Defendants Del Toro, Brumment, Davis, Perel, Meyers,

and Griffin. (Docket Entry 2 at 2-3.) The Complaint alleges that

3(...continued)

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

42 U.S.C. § 1983.

-6-

Defendant Del Toro serves as an employee of Kingwood Apartments

(see id. at 2), and that Defendant Brumment serves as an employee

of GSC (see id. at 3; see also id. at 1-7 (lacking any factual

allegations as to Defendants Davis, Perel, Meyers, and Griffin)).

The Complaint contains no factual matter suggesting that any

Defendant (1) works as a state official, (2) acted in concert with

a state official, or (3) violated Plaintiff’s rights under

compulsion of a state official. (See id. at 1-7.)

In other words, the Complaint does not allege factual matter

establishing state action. See DeBauche, 191 F.3d at 507

(explaining that “private activity will generally not be deemed

‘state action’ unless the state has so dominated such activity as

to convert it into state action”). The Complaint’s Section 1983

claim therefore fails as a matter of law. See American Mfrs. Mut.

Ins. Co., 526 U.S. at 50 (holding that Section 1983’s

under-color-of-state-law requirement “excludes from its reach

merely private conduct, no matter how discriminatory or wrongful”

(internal quotation marks omitted)).

Accordingly, the Court should dismiss all Section 1983 claims

against all Defendants for failure to state a claim.

II. 15 U.S.C. § 1681 Claims

The Complaint’s overarching allegations refer to Plaintiff’s

“federal reporting rights” which were “infringed . . . in

accordance with [T]litle 15[, U]nited [S]tates [C]lode[, S]ection

-7-

1681” (Docket Entry 2 at 4), in that Defendants failed to “mak[e

Plaintiff’s] screening report readily available for [] dispute

[purposes] in accordance with [the FCRA]” (id.). Here, the

Complaint’s allegations appear to invoke the statutory requirements

underlying the “duties of users taking adverse actions on basis of

information contained in consumer reports,” 15 U.S.C. § 1681m(a).

Any such claims fail as a matter of law for several reasons.

First, no private right of action exists under Section 1681m.

Section 1681m(h)(8) states that, “[t]his section shall be enforced

exclusively under section 1681s of this title by the Federal

agencies and officials identified in that section.” 15 U.S.C.

§ 1681m(h)(8)(B). “Virtually every federal district court and the

only federal court of appeals to interpret [Section] 1681m(h)(8)

has found it to be clear and unambiguous: the word ‘section’ means

‘section,’ and thus no private right of action exists for

violations of [S]ection 1681m in its entirety.” Bourdelais v. J.P.

Morgan Chase Bank, N.A., No. 3:10CV670, 2011 WL 1306311, at *6

(E.D. Va. Apr. 1, 2011) (unpublished) (internal citations omitted)

(emphasis added) (“agree[ing] with the overwhelming weight of

authority holding that the phrase ‘this section’ in [Section]

1681m(h)(8) refers to [S]ection 1681m in its entirety, and thus no

private right of action to enforce [S]ection 1681m exists”).

Alternatively, the Complaint fails to plead sufficient

allegations for entitlement to damages under Section 1681n and

-8-

Section 1681o. As it relates to this matter, Section 1681n

provides for actual or statutory damages and punitive damages. See

15 U.S.C. § 1681n(a). In addition, Section 1681o(a) provides for

actual damages. See 15 U.S.C. § 1681o(a). However, “[t]he FCRA

permits a plaintiff to recover for a violation of the statute only

when a defendant acted either negligently or willfully in violating

the statute’s requirements.” Martin v. Fair Collections &

Outsourcing, Inc., Civ. No. 14-3191, 2015 WL 4064970, at *4 (D. Md.

June 30, 2015) (unpublished) (citing Section 1681o(a)(1) and

Section 1681n(a)(1)(A)). “Without negligent or willful misconduct,

the FCRA does not provide for any recovery.” Id.

Here, although the Complaint requests “to be compensated for

[] mental anguish and punitive damages” (Docket Entry 2 at 6), the

Complaint fails to allege factual matter showing that any Defendant

acted in a willful or negligent manner. (See id. at 1-7.) As a

result, Plaintiff cannot recover actual, statutory, or punitive

damages under Section 1681n(a). In addition, the Complaint admits

that Plaintiff sustained “[n]o injuries.” (Id. at 5.) As such,

Plaintiff cannot recover actual damages under Section 1681o(a).

Lastly, to the extent the Complaint attempts to assert a claim

under 15 U.S.C. § 1681d, that attempt also fails as a matter of

law. The Complaint alleges that Plaintiff “was denied [his

s]creening report in accordance [with] federal law[].” (Docket

Entry 2 at 5.) According to Section 1681d(b),

-9-

[a]ny person who procures or causes to be prepared an

investigative consumer report on any consumer shall, upon

written request made by the consumer within a reasonable

period of time after the receipt by him of the

disclosure . . . make a complete and accurate disclosure

of the nature and scope of investigation requested. . . .

15 U.S.C. § 1681d(b). Notably, those disclosure procedures relate

only to an “investigative consumer report,” defined as follows:

a consumer report or portion thereof in which information

on a consumer’s character, general reputation, personal

characteristics, or mode of living is obtained through

personal interviews with neighbors, friends, or

associates of the consumer reported on or with others

with whom he is acquainted or who may have knowledge

concerning any such items of information. . . .

15 U.S.C. § 1681a(e) (emphasis added).

Here, the Complaint does not allege the preparation of any

such report “obtained through personal interviews.” (See Docket

Entry 2 at 1-7.) To the contrary, the Complaint alleges that the

“inaccurate information [was] derived from third party reporting

agencies and/or Trans[]union, Experian, and [Equifax].” (Id. at

4.) Accordingly, “[b]ecause none of [P]laintiff’s allegations

concern the disclosure of an ‘investigative consumer report,’ he

has failed to state a claim for a violation of [Section] 1681d.”

Butler v. Equifax Info. Servs., LLC, No. 3:17cv422, 2018 WL

5986534, at *3 (N.D. Fla. Oct. 12, 2018) (unpublished) (citing

Section 1681a(e)), recommendation adopted, 2018 WL 5981841 (N.D.

Fla. Nov. 14, 2018) (unpublished).

-10-

CONCLUSION

In sum, Defendants do not qualify as “state actors” subject to

suit under Section 1983, and the Complaint’s allegations do not

state a viable claim under any provision of the FCRA, including

Sections 1681d, 1681m, 1681n, or 1681o.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

IT IS RECOMMENDED that this action be dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which

relief can be granted.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 22, 2021

-11-