Jackson v. Equifax Info. Servs., LLC

JOSEPH M. JACKSON, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC and J. DOE,Manager, Defendants.

1:14-cv-610-WSD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

May 16, 2016

OPINION AND ORDER

This matter is before the Court on Magistrate Judge Linda T. Walker's Final Report and Recommendation [73] ("R&R"). The R&R recommends the Court (i) deny Defendant Equifax Information Services, LLC's ("Defendant") Motion for Summary Judgment [61] except as to one claim, (ii) grant Plaintiff Joseph M. Jackson's ("Plaintiff") request for appointment of counsel [57] ("Motion to Appoint Counsel"), and (iii) deny Plaintiff's motion for a court-appointed expert [58] ("Motion to Appoint Expert"). Also before the Court is Plaintiff's additional motion to appoint counsel [75] ("Second Motion to Appoint Counsel").

I. BACKGROUND

A. Facts¹

Plaintiff, who proceeds pro se, is a prisoner in Oklahoma. He seeks damages for Defendant's alleged failure to comply with the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681, et seq. Defendant is a consumer reporting agency ("CRA") within the meaning of the FCRA. Defendant creates and maintains files on millions of consumers in the United States. In accordance with the FCRA, Defendant provides consumers with free copies of their credit files. ([71] at 2).

Around January 2012, Plaintiff requested that Defendant provide him his free consumer credit file ("January Request"). (Id. at 14). In his request, Plaintiff provided his name, social security number, date of birth, and an address in Pennsylvania. (Id.). There is no evidence that Plaintiff submitted any records, such as a birth certificate or other identification documents, with his January Request. (Id.).

On January 14, 2012, Defendant sent Plaintiff a letter informing Plaintiff that the information he provided in his January Request did not match the information in the records Defendant maintained for Plaintiff. (Id. at 14, 18-19). Defendant addressed the letter to Plaintiff at the Pennsylvania address Plaintiff provided in his January Request. (Id. at 18-19). The letter informed Plaintiff that, to verify his identity and address, he must submit to Defendant records showing his name, social security number, and the Pennsylvania address. (Id.).

On February 13, 2012, Plaintiff wrote Defendant a response ("February Request"). (Id. at 10, 20-21). Plaintiff attached to his February Request copies of his bank account statements, which listed the Pennsylvania address; his social security card; his birth certificate; and his W-2 tax form. (Id.). Defendant admits it considers such documents sufficient to confirm a consumer's identity and address. ([61.3] at 4).

In support of Defendant's Summary Judgment Motion, Pamela Smith, Defendant's Legal Support Associate, provided a declaration stating that, in order to provide a free credit report to a prisoner, Defendant requires the prisoner to submit a copy of his prisoner identification card or other document demonstrating that he is a prisoner. (Id.). Defendant's January 14, 2012, letter to Plaintiff did not mention this requirement. ([71] at 18-19). Ms. Smith also stated that Defendantwill not mail a consumer credit file to an address that does not appear in the consumer's file, but will, if the consumer provides appropriate documentation, update the file with revised information and then send the file to the consumer. ([61.3] at 4-5).

Plaintiff addressed his February Request to the address Defendant told him to send it, placed first-class postage on it, and placed it in the U.S. mail depository at the prison in Oklahoma. ([71] at 10, 20-21). Plaintiff confirmed in that mailing that his current mailing address was the Pennsylvania address but noted that he had not lived there for five years. (Id. at 20-21). Plaintiff's February Request also included the prison address. (Id. at 21).

Ms. Smith stated that Defendant does not have a record of receiving Plaintiff's February Request. ([61.3] at 5). According to Ms. Smith, it is thus impossible to determine whether the documents Plaintiff mailed with his February Request were sufficient to satisfy Defendant's requirements for release of Plaintiff's consumer file. (Id.).

Plaintiff never received his consumer credit file from Defendant. ([71] at 10). Plaintiff claims he has suffered physical and mental distress because of Defendant's failure to provide him with his consumer credit file and that those problems continue today. (Id. at 14-16). He states the mental distress includeshurt feelings, anger, and frustration. (Id. at 10). His physical ailments include headaches and stomach problems, and he takes medicine to relieve his pain. (Id. at 10, 14, 16). Plaintiff submitted records showing that prison healthcare providers have prescribed him omeprazole, famotidine, and Excedrin for the ailments that he contends were caused by Defendant's actions. (Id. at 25-30). Plaintiff also claims that other prison inmates witnessed him being ill over Defendant's failure to provide him his consumer credit file. (Id. at 14).

B. Procedural History

On January 7, 2014, Plaintiff filed his Complaint [1] in the United States District Court for the Middle District of Pennsylvania. In it, he claims that Defendant violated the FCRA when it did not provide him his consumer credit report after he sent his January Request and his February Request. He seeks statutory and punitive damages based on Defendant's willful failure to comply with his requests. On February 28, 2014, this action was transferred to this Court. The Court screened Plaintiff's complaint and found that it stated a viable claim under the FCRA. ([19]).

A discovery period was never set in this action. On March 6, 2014, the Court entered an Order advising the parties that the case was assigned to a zero-month discovery track and that a party seeking discovery must file a motionrequesting discovery by a certain deadline. Plaintiff did not file his motion for discovery [36] until October 2014, after the deadline. He filed another discovery motion [52] almost a year later. On January 26, 2015, and August 26, 2015, the Magistrate Judge denied [47], [54] Plaintiff's untimely discovery motions.² On November 19, 2015, Plaintiff filed his Motion to Appoint Counsel [57] and Motion to Appoint Expert [58].

On November 24, 2015, Defendant filed its Motion for Summary Judgment. In it, Defendant argued that summary judgment should be granted because (i) Plaintiff cannot prove that Defendant received proper identification, and (ii) Plaintiff cannot prove that he incurred damages caused by his failure to receive a consumer disclosure.

On February 1, 2016, the Magistrate Judge issued her R&R. In it, the Magistrate Judge found that there is a genuine issue of fact as to whether Defendant received Plaintiff's February Request that included documents verifying Plaintiff's identity and the Pennsylvania address that Defendant had in Plaintiff's consumer credit file. (R&R at 8). She found that Plaintiff alleged, and provided evidence of, physical pain and suffering as a result of Defendant's actions. (Id. at11-12). The Magistrate Judge thus recommended that summary judgment be denied on Plaintiff's FCRA claim based on his February Request. She recommended that, as to Plaintiff's FCRA claim based on the January Request, summary judgment should be granted because there is no factual issue as to whether Plaintiff provided proper identification with his January Request. (Id. at 13).

The Magistrate Judge recommended the Court grant Plaintiff's Motion to Appoint Counsel to assist him in preparing for trial. (Id. at 14). She recommended that Plaintiff's Motion to Appoint Expert, filed well after the discovery deadline in this action and nearly two years after he filed his Complaint, should be denied. (Id. at 16).

Plaintiff did not file any objections to the R&R. On February 2, 2016, Plaintiff filed his Second Motion to Appoint Counsel. On February 10, 2016, Defendant filed its "Response to Magistrate Report and Recommendation" [76] ("Resp. to R&R"), in which it states that it "will not contest the recommendations set forth in" the R&R, and that it "agrees with" the recommendations in the R&R. (Resp. to R&R at 1). Defendant requests that the Court "set a settlement conference after counsel is appointed to further expedite proceedings in this case." (Id.).

II. DISCUSSION

A. Legal Standards

1. Review of a Magistrate Judge's Report and Recommendation

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Where, as here, no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

2. Summary Judgment Standard

Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once themoving party has met this burden, the nonmoving party must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The nonmoving party "need not present evidence in a form necessary for...