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Silva v. Equifax, Inc.

United States District Court, D. Hawaii

June 19, 2019

EQUIFAX, INC., Defendant.


          Derrick R. Watson United States District Judge.

         On May 24, 2019, Plaintiff Raymond Silva, proceeding pro se, filed an application to proceed in forma pauperis (“IFP Application”) and a civil complaint against Defendant Equifax, Inc. Dkt. Nos. 1, 3. Because the IFP Application reflects that Silva does not have the ability to pay the filing fee in this case, the Court GRANTS the IFP Application. However, because Silva does not allege a claim in his complaint, this action is DISMISSED with leave to amend.[2]

         I. The IFP Application

         Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). While Section 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant must nonetheless show that he is “unable to pay such fees or give security therefor, ” 28 U.S.C. § 1915(a).

         Here, Silva has made the required showing under Section 1915(a). In the IFP Application, Dkt. No. 3, Silva states that he is retired and receives $946 per month in social security benefits. Further, Silva states that he receives no other income, has $20 in a checking or savings account, and owns no automobile, real property, or financial instruments. In light of these figures, Silva's income falls below the poverty threshold identified by the Department of Health and Human Services' (“HHS”) 2019 Poverty Guidelines. See HHS Poverty Guidelines, available at: In addition, Silva has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 3.

         II. Screening

         The Court liberally construes the pro se Complaint. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). However, the Court cannot act as counsel for a pro se litigant, such as by supplying the essential elements of a claim. Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         In the Complaint, Dkt. No. 1, Silva asserts that he has “exhausted” his administrative remedies and Equifax has accepted facts set forth in various documents he sent them, but to which they failed to respond. Silva asserts that, through Equifax's non-response, he “states a superior claim upon which relief can be granted….” Id. at 4. The Complaint does not otherwise set forth any of the facts supporting Silva's alleged superior claim or otherwise identify the claim. The Complaint provides that this Court's jurisdiction is premised upon diversity.

         Attached to the Complaint appear to be the documents to which Silva refers therein. One of those documents states that Silva was the victim of a data breach that occurred at Equifax sometime in 2017. Dkt. No. 1-1 at 3. It is further stated that Silva was injured by the data breach because he does not know who has his personal data. Id. It also appears that Equifax was instructed to provide twelve “Proofs of Claim.” Id. at 3-4.[3] The document concludes by stating that, if Equifax fails to provide “Proof of Claim, ” it will constitute “commercial acquiescence….” Id. at 4. Apparently, Equifax did not respond to Silva because a subsequent document is titled “Affidavit of Certificate of Non-Response.” Id. at 8. Another document is titled “Affidavit and Notice of Default, ” in which it is stated that Equifax has agreed to the facts stated in the “Proofs of Claim” and Equifax is liable to Silva and 148 million Americans in an amount no less than $75 million. Id. at 13-14.

         Put simply, Silva does not assert any claim in the Complaint. Moreover, he does not even try. Instead, it appears that Silva believes that he can bring this action because Equifax did not respond to his “Proofs of Claim.” So it is clear, Equifax's non-response to the document Silva sent Equifax does not create an actionable claim.[4] Like any other litigant, Silva must, instead, allege facts supporting a claim under some principle of law.[5]

         Because the Complaint fails to do so, the Court must dismiss this action. However, because it may arguably be possible for Silva to allege one or more plausible claims for relief, the Court will allow him leave to amend to attempt to do so. In that regard, the Court will mail Silva a copy of a form complaint for use in a civil pro se proceeding, such as this one. Should Silva choose to use the form mailed to him, he should answer all of the questions clearly and concisely. More specifically, Silva must write short, plain statements telling the Court: (1) the specific basis of this Court's jurisdiction; (2) the legal right(s) he believes were violated; (3) the name of the defendant(s) who violated those right(s); (4) exactly what each defendant did or failed to do; (5) how the action or inaction of a defendant is connected to the violation of Silva's right(s); (6) what specific injury he suffered because of a defendant's conduct; and (7) what relief he seeks.

         So it is clear, Silva may not rely on Equifax's alleged non-response to documents that Silva sent Equifax. All facts must be alleged in the amended complaint (if any) Silva files.

         III. Conclusion

         Silva's application to proceed in forma pauperis, Dkt. No. 3, is GRANTED. This action is DISMISSED with ...

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