United States District Court, D. Hawaii
RAYNELL L. SILVA-BORERO, Plaintiff,
EQUIFAX, INC., Defendant.
ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
28, 2019, pro se Plaintiff Raynell L. Silva-Borero filed a
Complaint against Defendant Equifax, Inc.
(“Equifax”), and an Application to proceed in
forma pauperis (“IFP Application”). ECF Nos. 1-2.
As set forth below, the court GRANTS Plaintiff's IFP
Application and DISMISSES the Complaint, with leave to amend,
for failure to state a claim pursuant to 28 U.S.C. §
forth in the IFP Application, Plaintiff's income is
limited to biweekly gross wages of $741.39, and Plaintiff has
neither money in a bank account nor any assets. IFP
Application ¶¶ 2-5. The IFP Application further
indicates that Plaintiff has monthly expenses totaling $490
for water, electricity, and phone service, and owes $250 per
month for a personal loan. Id. ¶6. The court
finds that Plaintiff has made the required showing under 28
U.S.C. § 1915(a) to proceed in forma pauperis (i.e.,
without prepayment of fees); therefore, the court GRANTS
Plaintiff's IFP Application.
alleged in the Complaint, Plaintiff exhausted administrative
remedies by sending Equifax several documents in which
Plaintiff asserted facts and requested that Equifax provide
“proofs of claim, ” essentially disputing such
facts. ECF No. 1 at PageID # 4-5. By failing to respond to
those documents, Equifax “accepted” the asserted
facts, and is therefore liable to Plaintiff for “$75,
000, 000.00” including “triple damages, punitive
damages and all court costs.” Id.
of the referenced documents are attached to the Complaint.
One document states that Plaintiff is a victim of a 2017
Equifax data breach. ECF No. 1-1 at PageID #8. In that
document, Plaintiff further states that “I am . . .
injured by this data breach in that I DO NOT know who may
have my personal data or where my data is being used as a
result of the fraudulent data breach.” Id.
Plaintiff also asked that Equifax provide twelve
“Proofs of Claim, ” and warned that Equifax's
“non-response and or failure to provide Proof of
Claim” will (1) “constitute agreement” that
Plaintiff is entitled to the requested remedies, and (2)
“will equate to commercial acquiescence to the
terms” set forth in a “final Affidavit and Notice
of Default.” ECF No. 1-1 at PageID #8-9.
apparently did not respond, because Plaintiff then sent two
“Affidavit[s] of Certificate of Non-Response” and
an “Affidavit and Notice of Default.”
Id. at PageID #13, 17-18. The “Affidavit and
Notice of Default” states that by failing to respond to
the prior documents, Equifax has “agreed and
acquiesced” to the facts and “Proofs of
Claim” set forth in those documents, and is therefore
liable to Plaintiff and 148 million Americans for $75
million, including “triple and punitive damages and
costs.” Id. at PageID #18-19; see
also ECF No. 1 at PageID #4-5.
STANDARDS OF REVIEW
court must screen the Complaint for each civil action
commenced pursuant to 28 U.S.C. § 1915(a), governing IFP
proceedings. The court must sua sponte dismiss a complaint or
claim that is “frivolous or malicious[, ] . . . fails
to state a claim on which relief may be granted[, ] or . . .
seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B); see
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not
only permits but requires” the court to sua sponte
dismiss an in forma pauperis complaint that fails to state a
under § 1915(e)(2) involves the same standard of review
as that used under Federal Rule of Civil Procedure 12(b)(6).
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012). Under Rule 12(b)(6), 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see UMG Recordings, Inc. v. Shelter Capital
Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013)
(recognizing that a complaint that fails to allege a
cognizable legal theory or alleges insufficient facts under a
cognizable legal theory fails to state a plausible claim)
(citing Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990)). However, although the court
must accept as true allegations of material fact, it is
“not bound to accept as true a legal conclusion couched
as a factual allegation.” Wood v. Moss, 572
U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at
678). That is, conclusory statements, “unadorned,
the-defendant-unlawfully-harmed-me accusation[s], ” and
factual allegations that only permit the court to infer
“the mere possibility of misconduct” fall short
of meeting the plausibility standard. Iqbal, 556
U.S. at 678-79; see also Starr v. Baca, 652 F.3d
1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff is proceeding pro se, the court liberally construes
her Complaint and resolves all doubts in her favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). The court must grant leave to amend if it appears
that Plaintiff can correct the defects in her Complaint,
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000),
but if a claim or complaint cannot be saved by amendment,
dismissal with prejudice is appropriate. Sylvia Landfield
Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013); see also Leadsinger, Inc. v. BMG Music Pub.,
512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a
district court may deny leave to amend for, among other
reasons “repeated failure to cure deficiencies by
amendments previously allowed . . . [and] futility of
amendment”) (citation omitted).