United States District Court, D. Nevada
ORDER (DOCKET NOS. 1, 1-1)
J. Koppe, United States Magistrate Judge.
to 28 U.S.C. § 1915 Plaintiff is proceeding in this
action pro se and has requested authority pursuant
to 28 U.S.C. § 1915 to proceed in forma
pauperis. Docket No. 1. Plaintiff also submitted a
complaint. Docket No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a).
Docket No. 1. Plaintiff has shown an inability to prepay fees
and costs or give security for them. Accordingly, the request
to proceed in forma pauperis will be granted
pursuant to § 1915(a). The Clerk's Office is
INSTRUCTED to file the complaint on the
docket. The Court will now review Plaintiff's complaint.
Screening the Complaint
granting an application to proceed in forma
pauperis, courts additionally screen the complaint
pursuant to § 1915(e). Federal courts are given the
authority to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). When a court dismisses a complaint under
§ 1915, the plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. See Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A
properly pled complaint must provide a short and plain
statement of the claim showing that the pleader is entitled
to relief. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does
not require detailed factual allegations, it demands
“more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). The court must accept as true all well-pled factual
allegations in the complaint, but the same requirement does
not apply to legal conclusions. Iqbal, 556 U.S. at
679. Mere recitals of the elements of a cause of action,
supported only by conclusory allegations, do not suffice.
Id. at 678. Secondly, where the claims in the
complaint have not crossed the line from conceivable to
plausible, the complaint should be dismissed.
Twombly, 550 U.S. at 570. Allegations of a pro
se complaint are held to less stringent standards than
formal pleadings drafted by lawyers. Hebbe v.
Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
alleges that he incurred a financial obligation primarily for
personal, family, or household purposes. Docket No. 1-1 at 3.
Plaintiff further alleges that his financial obligation went
into collection and that Defendant called him for payment,
even though he had told Defendant to stop calling him.
Id. Plaintiff alleges that Defendant told him that
criminal charges could be filed against him in regard to his
financial obligation. Id. Plaintiff further alleges
that Defendant sent a notice of intent to suspend his
driver's license, an income withholding order for his
financial obligation to his former employer, and letters
threatening to put him in prison for failing to pay his
financial obligation, and left a voicemail on his phone
without stating that it is a debt collector. Id. at
4. Plaintiff submits that these allegations give rise to
claims under the Fair Debt Collection Practices Act (FDCPA)
and 18 U.S.C. §§ 1341 and 1342. Id. at 5.
FDCPA aims to protect consumers from abusive, unfair, and
deceptive debt collection practices. See 15 U.S.C.
§ 1692; Gonzales v. Arrow Fin. Services, LLC,
660 F.3d 1055, 1060 (9th Cir. 2011). The FDCPA defines
[A]ny obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to
15 U.S.C § 1692a(5). Thus, the FDCPA does not apply to
all debts. Plaintiff appears to be attempting to use his
child support arrearages to obtain FDCPA protection. However,
child support obligations do not constitute
“debts” under the FDCPA. See Turner v.
Cook, 362 F.3d 1219, 1227 (9th Cir. 2004) (citing
Mabe v. G.C. Servs. Ltd. P'ship, 32 F.3d 86, 88
(4th Cir. 1994)). Plaintiff therefore fails to state a claim
under the FDCPA. If Plaintiff seeks to use financial
obligations other than child support arrearages as the basis
for his FDCPA claim, he must make specific allegations,
setting out with sufficient detail the financial obligation.
See Iqbal, 556 U.S. at 679 (holding that mere
recitals of elements of a cause of action, supported only by
conclusory allegations, do not suffice).
18 U.S.C. §§ 1341 and 1342
1341 and 1342 are criminal statutes and do not create
liability in a civil case. See Foley v. Morrone,
2014 WL 4275530, at *4 (D. Nev. 2014). As this is a civil