United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
the court is pro se Plaintiff Kevin McGuire’s pleading,
titled “Notice of Motion and Motion to Enjoin the
Defendants from attempts to obtain double-recovery in
violation of statute 15 U.S.C. §§ 1692f and 1692j
through provisions of 28 U.S.C. § 1335 and Haw. Rev.
Stat. § 657-11.” Doc. No. 1. The court construes
this document as Plaintiff’s civil Complaint, in which
he alleges Defendants Credit Collection Services, Recovery
Partners, LLC, and Farmers Insurance violated his rights
under the Fifth, Sixth, and Fourteenth Amendments, the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692e(6)(A), 1692f, and 1692g, and the
“State of Hawaii Consumer Protection Act, ”
Hawaii Revised Statutes, Section 480-13. See,
Doc. Nos. 1 (Compl.); 2 (Pl.’s Mem. in Supp.); and 3
is proceeding in forma pauperis. Doc. No. 6. For the
following reasons, Plaintiff’s Complaint is DISMISSED
with leave to amend for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2).
was taken into custody on or about April 21, 2015, pursuant
to his conviction in United States v. McGuire, Cr.
No. 14-00389 HG (D. Haw. Mar. 13, 2015) (Doc. No.
He is presently incarcerated at FCI Sheridan.
February 18, 2015, two months before Plaintiff was taken into
custody, he was involved in a traffic accident on Kaukonahua
Road, Oahu. The other driver was insured by Defendant Farmers
Insurance. See Doc. No. 3-1, PageID #22. Plaintiff
was issued a traffic citation for failure to keep
registration documents in the vehicle. Id., PageID
March 23, 2015, the District Court of the First Circuit,
State of Hawaii, Wahiawa Division, entered Default Judgment
against Plaintiff for $70.00, for his failure to answer its
notice of traffic infraction. Id., PageID #24.
letter dated March 24, 2015, Farmers Insurance notified
Plaintiff at P.O. Box 92, Waialua, HI 96791, that it had
attempted to contact him to discuss their insured’s
claim, but was unable to reach him. Id., PageID
#22-23. Farmers Insurance provided Plaintiff a prepaid
envelope and telephone number so that he could respond.
letter dated April 22, 2015, Defendant Credit Collection
Services notified Plaintiff at P.O. Box 1032, Waialua, HI
96791, of its subrogated claim against him for $1, 151.81,
regarding the February 18, 2015 accident. Doc. No. 3-2,
PageID #30. The letter informed Plaintiff that if he provided
proof of valid insurance coverage, they would suspend
recovery efforts against him personally, and that failure to
respond could result in legal action contingent on applicable
letter dated May 29, 2015, the City and County of Honolulu
Division of Motor Vehicle, Licensing and Permits notified
Plaintiff at P.O. Box 92, Waialua, HI 96791, that his drivers
license had been suspended. Doc. No. 3-1, PageID #27.
letter dated July 13, 2015, Defendant Credit Collection
Services notified Plaintiff at P.O. Box 92, Waialua, HI
96791, that it had tried to contact him unsuccessfully
numerous times regarding a subrogated claim of $14, 256.00.
Doc. No. 3-2, PageID #29. They told him again that if he
provided valid insurance information, efforts to recover the
debt would be suspended, and that a failure to do so could
result in legal action.
letter dated November 23, 2015, Defendant Recovery Partners
notified Plaintiff that Farmers Insurance had referred a debt
of $7, 526.48, incurred from the February 18, 2015 accident,
to them for collection. Doc. No. 3-3, PageID #31.
March 14, 2016, Recovery Partners offered settlement of the
debt for $6, 379.32. Id., PageID #32. This letter
noted, however, that the amount due was $9, 814.34, and
stated that failure to resolve the claim “may also
result in our client pursuing legal action against
says he received notice of the traffic court judgment and
insurance claims against him when a family member forwarded
them to him at FCI-Sheridan, but he does not allege when this
occurred. On April 11, 2016, Plaintiff filed the present
alleges Defendants violated: (1) the FDCPA, 15 U.S.C.
§§ 1692(e) & (e)(6), 1692f, 1692g(a) by failing
to personally serve him notice of their intent to collect a
debt pursuant to Rules 4, 5, “16(a)(1)(e) [sic],
” and 26 of the Federal Rules of Civil Procedure, and
Rule “58(d)(G) [sic]” of the Federal Rules of
Criminal Procedure; (2) his right to due process and a fair
hearing under the Fifth, Sixth, and Fourteenth Amendments;
and (3) Hawaii Revised Statutes §§ 480-13 &
657-11. Compl., Doc. No. 1, PageID #3-4. He also
claims that Defendants are trying to obtain double-recovery
of damages. Plaintiff seeks compensatory and punitive
damages, and injunctive relief.
court must screen all civil actions brought in forma pauperis
pursuant 28 U.S.C. § 1915(e)(2). Complaints or claims
must be dismissed if they are frivolous, malicious, fail to
state a claim on which relief may be granted, or seek relief
from a defendant who is immune from such relief. 28 U.S.C.
complaint that lacks a cognizable legal theory or alleges
insufficient facts under a cognizable legal theory fails to
state a claim. Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A
pleading 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). This does not demand
detailed factual allegations, but requires “more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory