United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION
PURSUANT TO 28 U.S.C. § 1915(E)(2)
Derrick K. Watson United States District Judge.
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
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).
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.
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.
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.
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).
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.
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).
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.
Fair Debt Collection Practices Act
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. ...