1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 TYRRELL L.S. BEN-AVI, Case No. 23-cv-1317-BAS-BGS 11 Plaintiff, ORDER: 12 v. 1. GRANTING MOTION FOR 13

EXPERIAN INFORMATION LEAVE TO PROCEED IN

14 SOLUTIONS, INC., FORMA PAUPERIS (ECF No. 2);

AND

15 Defendant.

16 2. SCREENING PURSUANT TO 28 U.S.C. § 1915(E) 17 18 19 Plaintiff Tyrrell L.S. Ben-Avi, proceeding pro se, files this action against Defendant 20 Experian Information Solutions, Inc. alleging violations of the Fair Credit Reporting Act 21 (“FCRA”). (Compl. 5, ECF No. 1.) Plaintiff also files an application seeking leave to 22 proceed without prepaying fees or costs, also known as proceeding in forma pauperis 23 (“IFP”). (IFP Mot., ECF No. 2.) For the reasons discussed below, the Court GRANTS 24 Plaintiff’s application to proceed IFP. (ECF No. 2.) Under 28 U.S.C. § 1915(e)(2)(B), the 25 Court also has a duty to screen Plaintiff’s claims sua sponte. For the following reasons, the 26 Court concludes Plaintiff’s Complaint clears the “low threshold” of sua sponte screening. 27 1 I. APPLICATION FOR LEAVE TO PROCEED IFP 2 Under 28 U.S.C. § 1915, an indigent litigant who is unable to pay the fees required 3 to commence a legal action may petition a court to proceed without making such 4 prepayment. The determination of indigency falls within the district court’s discretion. Cal. 5 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “Section 1915 6 typically requires the reviewing court to exercise its sound discretion in determining 7 whether the affiant has satisfied the statute’s requirement of indigency”), rev’d on other 8 grounds, 506 U.S. 194 (1993). 9 It is well-settled that a party need not be completely destitute to proceed in forma 10 pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 11 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 12 which states that one cannot because of his poverty pay or give security for costs . . . and 13 still be able to provide himself and dependents with the necessities of life.” Id. at 339 14 (internal quotations omitted). At the same time, however, “the same even-handed care must 15 be employed to assure that federal funds are not squandered to underwrite, at public 16 expense, . . . the remonstrances of a suitor who is financially able, in whole or in material 17 part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 18 District courts, therefore, tend to reject IFP applications where the applicant can pay 19 the filing fee with acceptable sacrifice to other expenses. See, e.g., Olivares v. Marshall, 20 59 F.3d 109, 111–12 (9th Cir. 1995) (finding that a district court did not abuse its discretion 21 in requiring a partial fee payment from a prisoner who had a $14.61 monthly salary and 22 who received $110 per month from family). The facts as to the affiant’s poverty must be 23 stated “with some particularity, definiteness, and certainty.” United States v. McQuade, 24 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 25 (9th Cir. 1960)). 26 Having read and considered Plaintiff’s application, the Court finds that he meets the 27 requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff has no income, $85.00 in cash, $111.59 in a checking account, and no other significant assets. (IFP Mot. ¶¶ 1, 4, 5.) He 1 lists monthly expenses totaling $5,365.00. (Id. ¶¶ 1, 8.) He also represents that he was 2 previously self-employed, but due to a “major illness,” his business has “been on pause” 3 during his recovery. (Id. ¶ 11.) Under these circumstances, the Court finds that requiring 4 Plaintiff to pay the court filing fees would impair his ability to obtain the necessities of life. 5 See Adkins, 335 U.S. at 339. Accordingly, the Court GRANTS Plaintiff’s application to 6 proceed IFP. 7 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 8 Under 28 U.S.C. § 1915(e)(2)(B)(ii), the court must dismiss an action where the 9 plaintiff is proceeding IFP if the court determines that the complaint “fails to state a claim 10 on which relief may be granted.” “The standard for determining whether a plaintiff has 11 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 12 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 13 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint 14 to “contain sufficient factual matter, accepted as true, to state a claim to relief that is 15 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A court 16 must accept all factual allegations pleaded in the complaint as true and must construe them 17 and draw all reasonable inferences in favor of the nonmoving party. See Cahill v. Liberty 18 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). Detailed factual allegations are not 19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 21 In his Complaint, Plaintiff alleges that, from January 2021 until July 2023, 22 Defendant negligently and willfully violated the FCRA. (Compl. 1.) Inaccuracies in his 23 credit report have negatively affected his credit score, which has harmed his professional 24 and personal life. (Id.) Accordingly, Plaintiff requests injunctive relief, compensatory 25 damages, and punitive damages under the FCRA. (Id.) 26 The FCRA was enacted “to ensure fair and accurate credit reporting, promote 27 efficiency in the banking system, and protect consumer privacy.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009) (quoting Safeco Ins. Co. of Am. v. 1 Burr, 551 U.S. 47, 52 (2007)). The statute prohibits the inclusion of certain information in 2 consumer credit reports and mandates procedural safeguards. Id. §§ 1681c-1(a)(1), 3 1681i(a). For instance, “[u]nder § 1681i of the FCRA, a [credit reporting agency] must 4 conduct a reasonable reinvestigation when a consumer disputes the accuracy of her credit 5 report and she contacts the [credit reporting agency] directly with her dispute.” Hamm v. 6 Equifax Info. Servs. LLC, No. CV-17-03821-PHX-JJT, 2018 WL 3548759, at *4 (D. Ariz. 7 July 24, 2018). The FCRA provides for private causes of action for negligent and willful 8 noncompliance with these requirements. 15 U.S.C. §§ 1681n, 1681o. “For the purpose of 9 a motion to dismiss, courts have held that a plaintiff states a claim under § 1681i when she 10 alleges: (1) that her credit report contained an inaccuracy; (2) that she notified the [credit 11 reporting agency] of her dispute and requested a reinvestigation; and (3) that the [credit 12 reporting agency] did not remove the inaccuracy.” Hamm, 2018 WL 3548759, at *4. 13 Moreover, courts have concluded that “general allegations are sufficient to maintain a 14 claim for willful violations of the FCRA.” Barrios v. Equifax Information Services, LLC, 15 No. CV 19-5009 PSG (JEMx), 2019 WL 7905897, at *5–6 (C.D. Cal. Oct. 28, 2019) 16 (collecting cases). 17 Here, Plaintiff adequately pleads the elements of a FCRA claim and Defendant’s 18 willfulness. He alleges Defendant listed incorrect information in his credit report that 19 detrimentally affected his credit score. (Compl. 5.) Namely, in his credit report, he noticed 20 trade lines, identification information, and credit accounts that do not belong to him. (Id.) 21 Plaintiff then attempted to communicate with Defendant via email, letter, and telephone, 22 but all contact attempts were ignored. (Id.) As a result, the inaccuracies in his credit report 23 persisted through the filing of his Complaint. (Id.) These allegations satisfy the elements 24 of a Section 1681i claim. In addition, Plaintiff’s general allegations of willfulness are 25 sufficient at the pleading stage. See Hamm, 2018 WL 3548759, at *5 (“Because Plaintiff 26 may allege conditions of the mind generally, Plaintiff’s allegations are sufficient to survive 27 Defendant’s [motion to dismiss].”). Thus, the Complaint plausibly alleges a FCRA claim 1 sufficient to meet the “low threshold” for proceeding past screening. See Wilhelm v. 2 || Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). 3 || I. CONCLUSION 4 In light of the foregoing, the Court: 5 1. GRANTS Plaintiff's application to proceed IFP (ECF No. 2). 6 2. DIRECTS the Clerk of the Court to issue a summons as to □□□□□□□□□□□ 7 || Complaint (ECF No. 1) upon Defendant and to forward it to Plaintiff along with a blank 8 Marshal Form 285. In addition, the Clerk will provide Plaintiff with certified copies 9 ||of this Order, his Complaint, and the summons so that he may serve Defendant. Upon 10 receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285 as completely 11 || and accurately as possible, include an address where service upon Defendant is to be made, 12 ||see S.D. Cal. CivLR 4.1(c), and return them to the United States Marshal according to the 13 ||instructions provided by the Clerk in the letter accompanying his IFP Package. 14 3. ORDERS the USMS to serve a copy of the Complaint and summons upon 15 || Defendant as directed by Plaintiff on the U.S. Marshal Form 285 and to promptly file proof 16 ||of that service, or proof of any attempt at service, with the Clerk of Court. See S.D. Cal. 17 ||CivLR 5.2. All costs of service will be advanced by the United States. See 28 U.S.C. 18 || § 1915(d); Fed. R. Civ. P. 4(c)(3). 19 4. ORDERS Plaintiff to serve upon Defendant or, if appearance has been 20 entered by counsel, upon Defendant’s counsel, a copy of every further pleading or other 21 ||document submitted for consideration of the Court. Plaintiff must also include with the 22 original filing with the Clerk of the Court a certificate stating the manner in which a true 23 || and correct copy of the filing was also served on Defendant, or counsel for Defendant, and 24 || the date of such service. Any paper received by the Court that has not been filed with the 25 || Clerk or that fails to include a Certificate of Service may be disregarded. 26 IT IS SO ORDERED. 27 / y+ 28 || DATED: August 18, 2023 ( ytd A (Bopha 6 Bor. Cynthia Basnant ace