2018 | Cited 0 times | D. Maine | September 13, 2018



Plaintiff ) 2:18-cv-00285-GZS v. )


Defendants )


PURSUANT TO 28 U.S.C. § 1915(e) In this action, Plaintiff Christopher Austin alleges Defendants, 1

evidently in connection with child support-related proceedings in state court, have unlawfully garnished without due process. (Complaint, ECF No. 1.) He also asserts the governing law is biased against non-custodial parents. (Id.)

Plaintiff filed an application to proceed in forma pauperis (ECF No. 5), which application the Court granted (ECF No. 6). In accordance with the in forma pauperis


Following a review of the complaint and the attachments to the complaint, I recommend the Court omplaint.

1 Plaintiff has joined as Defendants the following: Ricker Hamilton, Commissioner, Maine Department of Health and Human Services, York County, Mark Cronin (support enforcement), Scott Steitz (support enforcement), Nicole McLeod (support enforcement), and Ryan Fosyther (support enforcement).

STANDARD OF REVIEW The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to the federal courts for those persons unable to pay the costs of bringing an action. When a party is proceeding in forma pauperis, however, relief against a defendant who 28 U.S.C. § 1915(e)(2)(B).

sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such Neitzke v. Williams, 490 U.S. 319, 324 (1989).

When considering whether a complaint states a claim for which relief may be granted, courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Although a pro se Haines v. Kerner, 404 U.S. 519, 520 (1972), this is ed to plead basic facts sufficient to state a claim, Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in federal court, it is not enough for a plaintiff merely to allege that a defendant acted unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the

defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

FACTUAL BACKGROUND 2 Plaintiff challenges income withholding, license suspension, credit bureau reporting and other child support enforcement actions undertaken by the Maine Division of Support Enforcement and Recovery, a subdivision of the Department of Health and Human Services. (See ECF No. 2-9, p.6.) Plaintiff asserts, in conclusory fashion, that Defendants have violated his rights to due process and equal protection. Plaintiff attached to his complaint numerous documents, many of which are copies of statutes, regulations, and court decisions. 3

in which he challenges the process by which he was assessed a child support debt, and appears to assert the administrative agency is racially biased. (ECF No. 3-7.) In another statement, Plaintiff details some of his interaction with certain representatives of the Maine Department of Health and Human Services who were involved in the efforts to collect child support from Plaintiff. (ECF No. 3-10.)

2 The facts set forth herei omplaint and certain documents attached to the complaint that contain factual representations. 3 The documents include a Notice of Intent to Withhold Income, based on unpaid child support, directed to e, directed to the Bureau of Motor Vehicles. (ECF No. 3-3.)

DISCUSSION A. 42 U.S.C. § 1983

Pursuant to the federal civil rights statute:

Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... 42 U.S.C. § 1983.

Section 1983 Albright v. Oliver, 510 U.S.

266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To maintain a claim under has been committed under color of state law, and 2) that this conduct worked a denial of

rights secured by the Barreto-Rivera v. Medina- Vargas, 168 F.3d 42, 45 (1st Cir. 1999).

under color of state law. The issue is whether Plaintiff has alleged sufficient facts to assert an actionable claim based on the denial of rights secured to him under the Constitution or federal law.

1. Title IV-D The United States Supreme Court has described the child support provisions of Title IV- - Blessing v. Freestone, 520 U.S. 329, 333 (1997). The programs include the Aid to Families

with Dependent Children (AFDC), found in Title IV-A of the Social Security Act, 42 U.S.C. §§ 601 617, and related provisions in Title IV-D that require a comprehensive system to establish paternity, locate absent parents, and help families

obtain support orders, in consideration for federal grants that support the AFDC program. Blessing, 520 U.S. at 333 34 (citing 42 U.S.C. §§ 651, 654).

In Blessing, the Supreme Court held that a group of plaintiff mothers could not pursue relief against the State of Arizona under 42 U.S.C. § 1983 to the extent they claimed that Title IV-D - Id. at 333.

The Court remanded the case for the District Court to consider whether the plaintiffs claims constitute the assertion of a violation of a federal right rather than the violation of federal law, which assessment would require consideration of multiple factors. 4

Id. at 340, 342 46 (emphasis in original).

4 The Court described the factors as follows:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983. Because our inquiry focuses on congressional intent, dismissal is proper if Congress specifically foreclosed a remedy under § 1983. Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. Blessing, 520 U.S. at 340 41 (quotation marks and citation omitted).

In this case, Plaintiff does not allege Defendants deprived him of a right conferred on him by Congress through its enactment of Title IV-D. Instead, Plaintiff contends that Defendant the enforcement provisions developed under the Title IV-D program resulted in the deprivation of his rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Such a claim is not actionable under section 1983.

2. Due process Plaintiff has not alleged any facts that would support a due process claim. Plaintiff merely asserts in conclusory fashion that his due process rights have been violated. 5 Conclusory allegations are insufficient to state a claim. Iqbal, 556 U.S. at 678.

3. Equal protection equal protection allegations are also insufficient to state an actionable claim. Plaintiff suggests that Title IV-D is unfair to noncustodial parents, but noncustodial

5 Teng v. Mukasey, 516 F.3d protected liberty or property interest and allege that the defendants, acting under color of state law, deprived [him] of that interest with Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011) (quoting Aponte Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006)). Where a protected interest is at stake, the basic guarantee of procedural due process is that the individual receive notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Id flexible Id. (quoting

Morrissey v. Brewer including the private and public interests involved, the risk of an erroneous deprivation inherent in the procedures employed by the state, and the likely benefit that might accrue from additional procedural Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Id.

parents are not a suspect category, and the pursuit of child support from noncustodial parents is rationally related to a legitimate government interest. 6

Plaintiff also asserts a belief that [s] black men most. To state a claim of discrimination, Plaintiff must assert (1) facts that could support a plausible inference that he experienced differential treatment when compared to another person Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (internal quotation marks omitted), and (2) facts that suggest that the difference in Ayala Sepulveda v. Municipality of San German, 671 F.3d 24, 32 (1st Cir. 2012). See also Knowlton v. Shaw, 704 F.3d 1, 11 (1st Cir. 2013) (explaining that an equal protection claim requires - Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Plaint allegations lack any facts that would satisfy his burden. 7

6 constitutional rights must be upheld against equal protection challenge if there is any reasonably F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). See also City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) ( 7 Plaintiff has asserted his claim against York County. While municipal entities are subject to claims under -D enforcement system.

Human Services, Division of Support Enforcement and Recovery) are not subject to a claim brought under 42 U.S.C. § 1983 because t Brown v. Newberger, 291 F.3d 89, 92 (1st Cir. 2002) (citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)).

4. Trial by jury Plaintiff appears to assert that Defendants have deprived him of a right to have his child support obligation and any enforcement proceedings determined by a jury. The Seventh Amendment governs proceedings that take place in federal courts. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 418 (1996). Accordingly, if the state proceedings did not afford a jury trial in an underlying paternity or child support proceeding, that ruling did not implicate a federal right and, by extension, would not support a federal claim. 8

5. 28 U.S.C. § 2007 Plaintiff, citing 28 U.S.C. § 2007, maintains that the suspension of his driver license violated federal law. (ECF No. 3-7.) The statute provides that a person cannot be imprisoned, based on process issued by a federal court, in a state that has abolished imprisonment for debt. Plaintiff does not allege he was imprisoned, either as the result of state or federal process. Plaintiff thus has not alleged a violation of section 2007, even if section 2007 is construed to authorize a private cause of action.

8 twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re- examined in any Court of the United States, than according to the rules of the common law U.S. Const., Amend. 7. Furthermore, Plaintiff cannot challenge the underlying state court proceedings in this Court. This Court lacks jurisdiction to act as an appellate court to review the rulings of state courts. The only federal court with such authority is the United States Supreme Court. Silva v. Massachusetts, 351 Fed. App x m final state- Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam)); see also Lance, 546 U.S. at 4 -Feldman doctrine prevents the lower - - Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, (2005)).

B. Debt

1. Debt collection The federal Fair Debt Collection Practices Act (FDCPA) authorizes a civil action for a person harmed by certain debt collection practices undertaken by a debt collector. 15 U.S.C. § 1692k. T , however, employee of the United States or any State to the extent that collecting or attempting to

Id. § 1692a(6)(C). As alleged, Defendants are officers or employees of the State of Maine and, consequently, they are not subject to liability under the FDCPA.

2. Credit reporting The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681s-2(b), requires that individuals who furnish reports to credit reporting agencies do not report inaccurate information and that they Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st Cir. 2010).

Persons who willfully or negligently fail to comply with the FCRA can be liable to the consumer. 15 U.S.C. §§ 1681n(a), 1681o(a), 1681p. For example, a furnisher 9

of information can be liable to a consumer if, after receiving notice from a credit reporting agency of a consumer dispute, the furnisher fails to investigate the dispute, review all relevant information provided by the reporting agency, and report the result to the reporting

9 s financial activity may voluntarily provide it to a CRA, alers, department and Chiang, 595 F.3d at 35 (quoting H.R. Rep. 108 263, at 24 (2003)).

agency or to all relevant reporting agencies, depending on whether the report verifies or corrects the disputed information. Chiang v. Verizon New England Inc., 595 F.3d 26, 35 36 & n.8 (1st Cir. 2010).

Plaintiff s complaint and s. 1-8, 1-9.) Plaintiff

evidently objected because the amount asserted as outstanding was not an amount specified in a court order and/or did not arise pursuant to a contract. (Id.; ECF No. 3-7.) Plaintiff also states that the amount of the debt was reported incorrectly, and that, after he contacted Transunion and Equifax, Transunion removed the debt and Equifax, evidently, has not. (ECF Nos. 3-7, 3-10 ¶ 8.) The mere fact that a credit agency might have had inaccurate information cannot support a claim that one of the named defendants supplied the inaccurate information. Plaintiff has not alleged any facts that would support a claim that any of the named defendants provided inaccurate information to a credit reporting agency, or that they failed to review and report in response to notice of a dispute received from a reporting agency. Plaintiff thus has not asserted an actionable claim under the FCRA.

C. Criminal Statutes

In support of his claim, Plaintiffs cites 18 U.S.C. §§ 241 and 242. The statutes, which are part of the federal criminal code, prohibit conspiracies that deprive persons of their civil rights and authorize criminal prosecution of those who engage in such conduct. Plaintiff does not have standing to pursue criminal charges against Defendants. United States v. Nixon Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973) (private citizens lack a judicially cognizable interest in the criminal prosecution of another); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989); Briand v. Lavigne, 223 F. Supp. 2d 241, 251 (D. Me. 2002).

CONCLUSION Based on the foregoing analysis, after a review pursuant to 28 U.S.C. § 1915(e)(2), omplaint.

NOTICE A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within fourteen (14) days of being served with a copy thereof. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order. /s/ John C. Nivison U.S. Magistrate Judge Dated this 13 th

day of September, 2018.

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