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Fisher v. Equifax Services LLC

United States District Court, N.D. Georgia, Atlanta Division

February 18, 2015

GERALD ALEXANDER FISHER, Plaintiff,
v.
EQUIFAX SERVICES LLC, Defendant.

FINAL REPORT AND RECOMMENDATION AND ORDER

GERRILYN G. BRILL, Magistrate Judge.

This matter is before the Court on the second and third affidavits of indigency, requests to proceed in forma pauperis ("IFP"), "Affidavit of Fraud, " and proposed complaint filed by the plaintiff, Gerald Alexander Fisher ("Plaintiff"). (Docs. 1-1, 3, 3-1, 4).

I. BACKGROUND

On January 23, 2015, Plaintiff filed his initial affidavit of indigency in this case, along with an application for leave to proceed IFP, and proposed complaint. (Docs. 1, 1-1). The Form 239 affidavit/application that Plaintiff submitted contained zeros and/or blanks in every space for income from employment and other sources, assets, and monthly expenses, including zeros for such necessities as food, clothing, transportation, and shelter. Although Plaintiff indicated that he received zero dollars from employment, elsewhere on the form he indicated that the time he had spent researching and preparing this case "has taken away from my working hours." (Doc. 1 at 3).

It was also unclear from Plaintiff's first application whether he is represented by an attorney. Paragraph 10 of the Form 239 that Plaintiff initially submitted states that Plaintiff has paid - or will be paying - an attorney $1000.00 for services in connection with this case, but the space provided for entering the attorney's name, address, and telephone number was left blank. (Doc. 1 at 3). Plaintiff's proposed complaint does not contain a signature line, and there is no attorney's signature (or anyone's signature) on the complaint. (Doc. 1-1 at 2). The civil cover sheet attached to Plaintiff's proposed complaint lists "Adrian L. Patrick" as Plaintiff's attorney, but there is no signature by Adrian L. Patrick entered on the civil cover sheet. The cover sheet merely has the name "Adrian Patrick" typed onto the last page in the space provided for a signature. (Doc. 1-2 at 2).

The complaint that Plaintiff filed with his initial application lists Equifax Services LLC as the defendant, and generally alleges in the first section entitled "Facts" that Plaintiff paid a Georgia Power bill in full, but Equifax refused to remove a Georgia Power credit item from Plaintiff's credit file. (Doc. 1-1). The complaint is unsigned, and contains no counts for relief. However, Plaintiff's complaint makes passing references to the Fair Credit Reporting Act, 15 U.S.C. § 1681, and "Racketeering." (Id.).

After reviewing Plaintiff's initial submissions, the undersigned concluded that Plaintiff's first application did not provide the Court with sufficient information upon which to base a decision as to whether he should be permitted to proceed IFP. Accordingly, on January 29, 2015, the undersigned issued an order directing Plaintiff to provide to this Court within fourteen days of the date of the order a fully completed and accurate Form 239 Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) for the Court's consideration and analysis. (Doc. 2, "Order"). The Order informed Plaintiff that without a signature and other required identifying information, the Court would not accept his proposed complaint for filing. See Fed.R.Civ.P. 11(a); Local Rules 5.1(A), (G), (H) NDGa. The Order further informed Plaintiff that failure to timely comply with the Order may result in denial of Plaintiff's application to proceed IFP.

On February 12, 2015, in response to this Court's Order, Plaintiff, without explanation, submitted two more affidavits of indigency. (Docs. 3, 3-1). The second affidavit (Doc. 3) is not signed by the Plaintiff, and the application again fails to address whether Plaintiff wishes to proceed pro se or is represented by counsel. Accordingly, the Court has exercised its discretion not to consider Plaintiff's second affidavit/application to proceed IFP.

Plaintiff's third affidavit of indigency is signed by the Plaintiff, and the application states that Plaintiff's attorney is Adrian Patrick, at 3115 Brownwood Drive, Snellville, Georgia, 30078, telephone number XXX-XXX-XXXX. (Doc. 3-1 at 5). However, again without explanation, the civil cover sheet filed by Plaintiff lists Adrian Patrick at a different address and telephone number: 1044 Baxter Street, Athens, Georgia, 3006 [sic], XXX-XXX-XXXX. In lieu of a signature in the space provided for the "signature of attorney of record, " the cover sheet (again) merely has the name "Adrian Patrick" typed onto the last page in the space provided for a signature. (Doc. 3-2 at 2). Plaintiff (again) failed to submit a proposed complaint signed by either himself or by attorney Adrian Patrick.

Instead, attached to Plaintiff's second and third affidavits of indigency and applications to proceed IFP is an unsigned "Affidavit of Fraud" containing allegations not against Equifax, like his proposed complaint, but rather against Educational Credit Management Corporation, Bank of America, Nelnet, and SunTrust concerning some type of dispute about a student loan or loans. (Doc. 4). Like Plaintiff's proposed complaint, Plaintiff's "Affidavit of Fraud" lacks a signature from either Plaintiff or his attorney. Plaintiff has made no attempt to explain how his "Affidavit of Fraud" relates, if at all, to his proposed complaint against Equifax regarding a Georgia Power bill.

II. FRIVOLITY DETERMINATION

After consideration of Plaintiff's third affidavit of indigency, I find that Plaintiff meets the financial requirements for IFP status and GRANT his request to proceed IFP pursuant to 28 U.S.C. § 1915(a). However, the Court must also determine whether Plaintiff's proposed complaint is frivolous and, if so, must dismiss it without prejudice. See 28 U.S.C. § 1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 324 (1989).

A. Standard of Review

A court must dismiss a complaint filed IFP if at any time the court determines the action is frivolous or malicious or that the complaint fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). "Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6)." Wilkerson v. H&S, Inc., 366 F.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under this standard, "a 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)). "A claim has facial plausibility when ...


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