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Prestwood v. Discover Bank

United States District Court, N.D. Alabama, Eastern Division

May 20, 2015

TAMMY PRESTWOOD, Plaintiff,
v.
DISCOVER BANK and JOHN NATHAN, Defendants.

MEMORANDUM OF OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. PROCEDURAL HISTORY

Pending before the court is the In Forma Pauperis Affidavit and application to commence this case without prepayment of fees, costs, or security. (Doc. 2) (the "IFP Petition"). On March 11, 2015, this court conducted a frivolity determination pursuant to 28 U.S.C. § 1915, and ordered the plaintiff to re-plead her complaint by April 1, 2015. (Doc. 5 at 5-6). In that order, the court stated that "[s]hould the Amended Complaint not be filed by April 1, 2015, the court will dismiss this case for the reasons stated [in document 5], and for want of prosecution." (Doc. 5 at 6) (emphasis in original). The plaintiff did file an Amended Complaint, albeit late, on April 6, 2015. (Doc. 6).

II. STANDARD

Title 28 U.S.C. § 1915 governs proceedings in forma pauperis for nonprisoner plaintiffs. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) ("Despite the statute's use of the phrase prisoner possesses, ' the affidavit requirement applies to all persons requesting leave to proceed IFP."); see also Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) ("We agree with the analysis of the Sixth Circuit and hold that the affidavit requirement of section 1915(a)(1) applies to all persons applying to proceed i.f.p."). The statute also provides that

[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... 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.A. § 1915(e)(2)(B)(I), (ii), (iii)."An issue is frivolous when it appears that the legal theories are indisputably meritless.'" Ghee v. Retailers Nat. Bank, 271 F.Appx. 858, 859 (11th Cir. 2008) ( quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)). In other words, an IFP action is frivolous "if it is without arguable merit either in law or fact.... [A]rguable means capable of being convincingly argued." Id. at 859-60 ( citing Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001), and Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991)) (internal quotations and citations omitted).

III. ALLEGATIONS IN THE COMPLAINT

The complaint names as defendants "Discover Bank issuer of Discover Card, " ("Discover Bank") and "John Nathan of Nathan & Nathan P.C., Counsel [for] Discover Bank, " ("Nathan"). (Doc. 6 at 1). According to the complaint, on January 24, 2009, Prestwood reached an agreement with Discover Bank that she owed a certain sum of money to that defendant, but that, in fact, she actually owed the money to an entity known as "Discover Financial Services, LLC" ("Discover Financial"). Based on this agreement, on February 20, 2009, a consent judgment was entered in an Alabama state court against the plaintiff, and in favor of Discover Bank. On October 10, 2012, a process of garnishment was issued to Regions Bank, by the state court, in an attempt to collect on the aforementioned judgment.

The Amended Complaint alleges that the garnishment sought any and all accounts under the plaintiff's name, but that the only account at the garnishee's institution "was a Business Preferred Personal Checking [Account], which had Jimmey L[.] Prestwood or Tammy Ladawn Prestwood on it." (Doc. 6 at 1-2). The Amended Complaint then outlines the various attempts the plaintiff took in the state court to prevent the garnishment and unfreeze her funds. (Doc. 6 at 2-9). The Amended Complaint alleges that the state court denied her requests for relief.

Also, according to the Amended Complaint, on May 20, 2014, the Alabama Court of Civil Appeals affirmed the state court's decision. Thereafter, the Amended Complaint discusses the plaintiff's unsuccessful attempts to file certain documents and obtain a rehearing in the Court of Civil Appeals. (Doc. 6 at 10-11).

Finally, the complaint confusingly alleges:

(40) Upon getting PDF documentation from Court of Civil Appeals of Alabama from trial case in Circuit Court of Calhoun County for an appeal, the following document was included: Discover Bank's Attorney filed on 12/09/2008 document "AL_02 Civil Case Cover Sheet Nathan & Nathan File No. 08 44927" in the box for Defendant(s) the only one checked is " Individual ", which was filed with court. (41) This PDF document from Court of Civil Appeals was dated 07/28/2014 time stamped 10:34 am, which we never received this document from Discover Bank attorney's. (42)Fraud was not discovered until after initial brief was sent to court and presented in a corrected brief dated 09/29/2014, which was declared moot by Court of ...

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