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Richter v. Sprint

United States District Court, D. Nebraska

August 16, 2019

RUTH RICHTER, Plaintiff,
v.
SPRINT/VMUSA, Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff filed her Complaint on May 17, 2019. (Filing No. 1.) She has been given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's Complaint[1] to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that she has been a customer for phone service from Defendants Sprint and Virgin Mobile USA (“VMU”) since 2007. Beginning in January 2019, Plaintiff claims VMU began to misuse her bank debit card by taking more money out of Plaintiff's bank account than they were supposed to take for Plaintiff's phone service. Plaintiff alleges she provided VMU her debit card information in order to purchase a set amount of phone minutes from VMU, and “[e]verytime the Plaintiff needed to add phone min[utes] to her VMU account and went through the debit card process with VMU the over the stated amount would happen.” (Filing No. 1 at CM/ECF p. 1.) Plaintiff alleges this activity continued through March 2019 when the bank that issued Plaintiff's debit card “put a stop on VMU being able to use the debit card info” apparently in response to Plaintiff's “written disputes to the bank about the overuse by VMU.” (Id. at CM/ECF pp. 1- 2.)

         On March 14, 2019, Plaintiff alleges VMU cut off her phone service without any warning even though Plaintiff still had phone minutes left in her account. Upon contacting VMU, Plaintiff was told “her service was ‘restricted' to only star 4 because she had no money in her [VMU] account” and that VMU “had TAKEN the amount in [her] phone account to cover part of the ‘cash back' [she] had gotten from the bank and [she] was suppose [sic] to ‘go to the bank and give it (‘the cash back') back to the bank” and pay an additional sum to VMU. (Id. at CM/ECF p. 2 (punctuation in original).) Plaintiff denies ever receiving any “cash back” but attempted to pay the amounts directed by VMU by purchasing VMU phone cards since she could not use her debit card for VMU transactions. However, Plaintiff alleges VMU would not accept the phone cards until Plaintiff paid back the amounts owed to VMU.

         Plaintiff alleges she was without phone service for eighteen days until April 1, 2019, when her phone service was suddenly restored. Plaintiff received a message from VMU stating Plaintiff had added $12.32 to her account which reflects the amount VMU had taken out of her phone account on March 14, 2019, so she could now use her phone again. Plaintiff, however, denies ever having added any amounts to her phone account as she was not able to using either her debit card or the phone cards.

         In her supplemental filing, Plaintiff alleges that her phone service was again suddenly shut off on June 15, 2019, even though Plaintiff had money in her phone account. Plaintiff claims this action by VMU, like the one on March 14, 2019, was “not justified and breached the oral contract that was between Plaintiff and Defendant for phone service to Plaintiff.” (Filing No. 7.)

         As relief, “Plaintiff seeks punitive damages from Defendant for theft, overuse of Plaintiff's debit card info, non use [sic] of her phone for 18 days and 18 nights, [and] violation of Plaintiff's civil rights as first Amendment Freedom of Speech.” (Filing No. 1 at CM/ECF p. 4.) Plaintiff claims Sprint, as the parent company of VMU, “was fully aware of what VMU was pulling yet did nothing to end the theft and fraud abuse by VMU.” (Id.)

         II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION OF CLAIMS

         Liberally construed, Plaintiff here alleges claims of theft, fraud, breach of contract, as well as a federal constitutional claim under the First Amendment. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,997 F.2d 494, 495 (8th Cir. 1993). Because Plaintiff does not allege that Defendants ...


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