Green v. U.S. Department of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TYRELL GREEN,

Plaintiff,

v. Civil Action 2:21-cv-562

Chief Judge Algenon L. Marbley

Magistrate Judge Chelsey M. Vascura

U.S. DEPARTMENT OF EDUCATION,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Tyrell Green (“Plaintiff”), an Ohio resident, brings this action against

Defendant, the United States Department of Education (“Defendant”), alleging that a third party

fraudulently obtained a student loan under Plaintiff’s name. This matter is before the Court for

the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable

claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is

frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); see also

Brown v. Bargery, 207 F.3d 863, 865, n. 2 (6th Cir. 2000). Having performed the initial screen,

for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS

Plaintiff’s action pursuant to § 1915(e)(2) for failure to assert any claim over which this Court

has subject-matter jurisdiction, and for failure to state a claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s Motion for Leave to

Proceed in forma pauperis under 28 U.S.C. § 1915(a). Plaintiff’s request to proceed in forma

pauperis is GRANTED. Plaintiff is permitted to prosecute this action without prepayment of

fees or costs, and any judicial officers who render services in this action shall do so as if the costs

had been prepaid. 28 U.S.C. § 1915(a).

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. (quoting Neitzke v. Williams, 490 U.S.

319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. See

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a

“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’

. . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,

550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual

matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. In considering whether this facial plausibility standard is met, a Court must

construe the complaint in the light most favorable to the non-moving party, accept all factual

allegations as true, and make reasonable inferences in favor of the non-moving party. Total

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.

2008) (citations omitted). The Court is not required, however, to accept as true mere legal

conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555). In addition, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,

2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972).

Finally, when the face of the complaint provides no basis for federal jurisdiction, the

Court may dismiss an action as frivolous and for lack of subject-matter jurisdiction under both

28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(h)(3). Williams v. Cincy

Urban Apts., No. 1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing

Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)).

II.

The entirety of Plaintiff’s Complaint reads as follows:

Unknown of the Date But my Social Security number was compromised Someone

open a student loan in the Amount of $7,848.08. That was not me I Try call the

School that was listed and They Informed me they Do not have record of me ever

attending their school. I contacted Department of Education to try to get some help

If feel like I was providing them with correct information for them to update the[ir]

system I was informed by a representative with US DOE. Someone By the name

of Michael Goodman He was trying to pay It and get credit on his credit Despite

them try to assisting the person they choose to keep It on My name clearly It’s

fraud. And then I started on more research and found out the school was a scam

and also filed for bankruptcy the school is now closed. Never received any money

from Department of Education or from this school.

(Compl. 3, ECF No. 1.) Plaintiff requests the following forms of relief:

Order the U.S. Department of Education to take this debt off of my Credit. and pay

me $2,000.00 For Jobs [and] house turned me Down because of it. and the return

of my tax that They garnished Back in 2019.

(Compl. 4, ECF No. 1.)

III.

Although Plaintiff’s Complaint lacks clarity, what is clear is that his claims arise from his

allegation that the United States Department of Education has failed to satisfactorily assist him

with the repercussions attributable to another individual using his Social Security number to take

an educational loan out under his name. Because Plaintiff has failed to plausibly allege a claim

over which this Court has jurisdiction, it is RECOMMENDED that this action be DISMISSED.

As a threshold matter, federal agencies, like the United States itself, possess sovereign

immunity that is a bar to suit unless the United States has waived that immunity. See FDIC v.

Meyer, 510 U.S. 471, 484–87 (1994); United States v. Testan, 424 U.S. 392, 399 (1976). Such a

waiver is “a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983).

A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.”

United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. King, 395 U.S. 1, 4

(1969)). Further, “[a]ny such waiver must be strictly construed in favor of the United States.”

United States v. Idaho ex rel. Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 7 (1993) (quoting

Ardestani v. INS, 502 U.S. 129, 137 (1991)). Thus, a party seeking to sue the United States or

one of its agencies “must identify a waiver of sovereign immunity in order to proceed.” Reetz v.

United States, 224 F.3d 794, 795 (6th Cir. 2000).

Here, although Plaintiff has neglected to identify such a waiver, construing his Complaint

liberally, the undersigned considers whether he could proceed under the Administrative

Procedure Act (“APA”), the Federal Torts Claims Act (“FTCA”), and the Fair Credit Reporting

Act (“FCRA”).

A. The APA

“Although the APA provides a broad waiver of sovereign immunity, . . . a federal district

court may only review ‘agency action made reviewable by statute and final agency action for

which there is no other adequate remedy in a court.’” Beamon v. Brown, 125 F.3d 965, 967 (6th

Cir. 1997) (quoting 5 U.S.C. § 704). Consequently, a plaintiff seeking to proceed under the APA

must demonstrate some “final agency action.” Franklin v. Mass., 505 U.S. 788, 796 (1992); see

also Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 495–96 (6th Cir. 2014) (employing a two-

part test to evaluate whether an agency decision is final).

Applied here, Plaintiff’s claims cannot proceed under the APA because he has failed to

plausibly allege facts upon which this Court could rely to conclude that Defendant has taken any

“final agency action.” See Frazier v. United States Dep’t of Educ., No. 2:10-CV-00782, 2011

WL 2580295, at *3 (S.D. Ohio June 3, 2011), report and recommendation adopted, No. 2:10-

CV-00782, 2011 WL 2580171 (S.D. Ohio June 29, 2011) (finding that the Court lacked

jurisdiction to consider a dispute about student loans because the plaintiff “failed to demonstrate

that Defendant has taken any ‘final agency action’”).

Accordingly, because the Court lacks jurisdiction to consider Plaintiff’s claims under the

APA, it is RECOMMENDED that these claims be DISMISSED.

B. The FTCA

“The FTCA provides a limited sovereign immunity waiver and subject matter jurisdiction

for plaintiffs to pursue state law tort claims against the United States.” Milligan v. United States,

670 F.3d 686, 692 (6th Cir. 2012) (citing 28 U.S.C. § 1346(b)(1)). To proceed under the FTCA,

a plaintiff must show that he has exhausted his administrative remedies before filing in the

district court. McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants

from bringing suit in federal court until they have exhausted their administrative remedies.”).

Applied here, Plaintiff’s claims cannot proceed under the FTCA because he has failed to

plausibly allege facts upon which this Court could rely to conclude that he has exhausted all

administrative remedies. See Fisher v. Dep’t of Educ., No. 1:12-CV-282, 2012 WL 3544744, at

*3 (S.D. Ohio Aug. 16, 2012), report and recommendation adopted, No. 1:12CV282, 2012 WL

4050094 (S.D. Ohio Sept. 13, 2012) (concluding that the court did not have jurisdiction over

claims against the United States Department of Education under the FTCA because “there is no

suggestion that Plaintiff ever exhausted her administrative remedies prior to filing suit in this

Court”).

Accordingly, because the Court lacks jurisdiction to consider Plaintiff’s claims under the

FTCA, it is RECOMMENDED that these claims be DISMISSED.

C. The FCRA

Circuit courts are split on the issue of whether the FCRA waives sovereign immunity.

See Robinson v. Dep’t of Educ., 140 S. Ct. 1440, 1441 (2020) (Thomas, J., dissenting from a

denial of certiorari) (observing that the Fourth and Ninth Circuits have concluded that the FCRA

does not waive sovereign immunity, while the Seventh Circuit has concluded it does). The Sixth

Circuit has not yet analyzed the issue. See Marzouq v. United States Dep’t of Educ., No. 18-

13616, 2019 WL 2996177, at *2 (E.D. Mich. July 9, 2019) (“The Sixth Circuit has not addressed

whether the FCRA contains a waiver of sovereign immunity against suits for damages.”). And

trial courts within the Sixth Circuit have reached inconsistent results. Compare Smith v. Penn.

Higher Educ. Assistance Agency, No. 2:18-CV-10162-TGB, 2019 WL 3219896, at *5 (E.D.

Mich. July 17, 2019) (finding that “Congress did not waive sovereign immunity in the penalties

portion of the FCRA”); with Mooneyham v. Equifax Info. Servs., LLC, 99 F. Supp. 3d 720, 725

(W.D. Ky. 2015) (concluding that “the FCRA waives sovereign immunity”); Begres v. Experian

Info. Sols., Inc., No. CV 19-11649, 2020 WL 532173, at *3 (E.D. Mich. Feb. 3, 2020) (holding

that “Congress expressly waived the States’ sovereign immunity when enacting the FCRA”).

Here, it is unnecessary for the undersigned to make a determination regarding whether

the FCRA waives sovereign immunity, because Plaintiff has failed to plausibly allege an FCRA

claim. Under the FCRA, “[a] consumer is authorized to bring suit for willful or negligent

violations of the responsibilities enumerated by the statute.” Nelski v. Trans Union, LLC, 86 F.

App’x 840, 844 (6th Cir. 2004). To succeed on an FCRA claim premised upon allegations of

inaccurate reporting, a plaintiff must show:

(1) the defendant reported inaccurate information about the plaintiff; (2) the

defendant either negligently or willfully failed to follow reasonable procedures to

assure maximum possible accuracy of the information about the plaintiff; (3) the

plaintiff was injured; and (4) the defendant’s conduct was the proximate cause of

the plaintiff’s injury.

Nelski, 86 F. App’x, at 844. Plaintiff’s Complaint fails to contain sufficient content upon which

the Court could rely to conclude that Defendant failed to follow reasonable procedures. In

addition, Plaintiff fails to plausibly allege the requisite causal link between Defendant’s actions

and Plaintiff’s alleged injuries. See Garrett v. Trans Union, L.L.C., No. 2:04-CV-00582, 2006

WL 2850499, at *11 (S.D. Ohio Sept. 29, 2006) (concluding that the plaintiff was “not entitled

to emotional distress damages because Plaintiff cannot show causation”) (citing Casella v.

Equifax Credit Info. Servs., 56 F.3d 469, 474–75 (2d Cir. 1995) (finding that the district court

properly “rejected [an FCRA claim] due to a lack of causation between the harm alleged . . . [and

the] alleged violations of the FCRA”)).

Accordingly, even assuming this Court has jurisdiction to consider claims advanced

under the FCRA, it is RECOMMENDED that Plaintiff’s FCRA claims be DISMISSED for

failure to state a claim.

IV.

Plaintiff’s Motion for Leave to Proceed in forma pauperis (ECF No. 1) is GRANTED.

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS Plaintiff’s

Complaint pursuant to 28 U.S.C. § 1915(e)(2) and Federal Rule of Civil Procedure 12(h)(3).

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE