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McGuire v. Credit Collection Services Commercial

United States District Court, D. Hawaii

July 7, 2016

KEVIN MCGUIRE, BOP #03841-22, Plaintiff,


          Derrick K. Watson United States District Judge.

         Before the court is pro se Plaintiff Kevin McGuire’s first amended complaint brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”). Doc. No. 8. McGuire alleges Defendants Credit Collection Services Commercial, Recovery Partners, LLC, and Farmers Insurance violated and conspired to violate the FDCPA in their efforts to collect a debt he allegedly incurred incident to a car accident he was involved in prior to his incarceration.[1]

         For the following reasons, McGuire’s first amended complaint and this action are DISMISSED with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

         I. BACKGROUND[2]

         McGuire 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. 51).[3] McGuire states that he was involved in a car accident approximately two months earlier, on February 18, 2015, on Oahu. The other driver was insured by Farmers Insurance; McGuire was issued a traffic citation. See Doc. No. 3-1 PageID #22, 24-26.

         In April 2016, McGuire’s mother sent him mail from Credit Collection Services and Recovery Partners, LLC, that she had retrieved from his postal box. These Defendants are apparently seeking collection of a subrogated debt on behalf of Farmers Insurance regarding the February 2015 car accident. McGuire asserts Farmers Insurance failed to perfect “personal service” on him regarding this debt during his federal criminal trial or before he was incarcerated. First Am. Compl., Doc. No. 8, PageID #84. McGuire concludes that Credit Collection Services Commercial and Recovery Partners, LLC are conspiring with Farmers Insurance to “double recover” on the debt. He alleges Defendants’ attempts to collect this debt have damaged his credit history and diminished his “graduation from a prison rehabilitation for drugs and alcohol abuse treatment benefits.” Id., PageID #82-84. McGuire claims that Defendants violated the FDCPA, his civil rights, and committed fraud. He seeks compensatory and punitive damages.


         The court must screen all prisoner 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. § 1915(e)(2).

         A 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 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 statements, do not suffice.” Id. A claim is plausible “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.

         Leave to amend should be granted if it appears the plaintiff can correct the defects in the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). When it is clear the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).


         McGuire asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(1-2), alleging the violation of the FDCPA, and conspiracy to violate his rights pursuant to the FDCPA under 42 U.S.C. §§ 1985 and 1986.

         A. Fair Debt Collection Practices Act

         The FDCPA was enacted to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. ...

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