USCA11 Case: 21-14174 Date Filed: 06/01/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14174
Non-Argument Calendar
____________________
ROBIN GOWERS,
Natural Person and Consumer,
Plaintiff-Appellant,
versus
PODS ENTERPRISES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-03200-JPB
____________________
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2 Opinion of the Court 21-14174
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Robin Gowers, pro se, appeals the dismissal of her amended
complaint against PODS Enterprises, Inc., for failure to state a
claim pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). We affirm.
I.
Gowers filed a complaint against PODS Enterprises, Inc.,
seeking damages for alleged violations of the Fair Debt Collection
Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA).1
Although Gowers’s amended complaint contained almost no fac-
tual allegations, she appeared to contend that PODS was liable for
assigning a debt to a debt collector, Caine & Weiner Company,
Inc., which in turn reported the debt to a credit reporting agency.
Based on the documents attached to her complaint, the debt was
assigned to Caine & Weiner in late 2016, and although Gowers
claimed that she paid the debt in full in 2017, Caine & Weiner con-
tinued to report it to credit reporting agencies until Gowers filed a
complaint with the Consumer Financial Protection Bureau in 2021.
1 Gowers’s amended complaint also referred to the Truth in Lending Act
(TILA) and the Equal Credit Opportunity Act (ECOA), but she did not allege
any facts supporting a claim that PODS violated either of those statutes, and
she does not argue on appeal that her complaint stated a claim under either
TILA or ECOA. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008)
(issues not briefed on appeal are deemed abandoned).
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21-14174 Opinion of the Court 3
After receiving the CFPB complaint, Caine & Weiner ceased its
collection efforts and stopped reporting the debt.
Because Gowers was proceeding in forma pauperis, the dis-
trict court referred the complaint to a magistrate judge for review
pursuant to
28 U.S.C. § 1915. See
28 U.S.C. § 1915(e)(2)(B). The
magistrate judge issued a report and recommendation recom-
mending that the complaint be dismissed for failure to state a claim.
The magistrate also notified Gowers that she could object to the
report and recommendation within 14 days after receiving it, and
that the failure to file a timely objection would result in a waiver of
the right to appeal the factual and legal conclusions in the report
and recommendation.
Almost a month later, having received no objection from
Gowers, the district court adopted the magistrate’s report and rec-
ommendation and dismissed the complaint for failure to state a
claim. On appeal, Gowers contends that the magistrate’s report
and recommendation was delayed in the mail, and that although
she filed objections to the report once she received it, the district
court clerk’s office lost her objections. Construing her appeal brief
liberally, she argues that the district court erred by dismissing her
complaint without giving her an opportunity to address the defi-
ciencies identified by the magistrate judge. She also appears to ar-
gue that her amended complaint stated a claim against PODS un-
der the FDCPA and the FCRA.
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4 Opinion of the Court 21-14174
II.
We generally review a district court’s sua sponte dismissal
under § 1915(e)(2)(B) de novo. Mitchell v. Farcass,
112 F.3d 1483,
1490 (11th Cir. 1997). But when the dismissal is based on the fac-
tual and legal conclusions in a magistrate judge’s report and recom-
mendation, the plaintiff waives the right to challenge those conclu-
sions on appeal if she fails to file timely objections despite being
informed of the deadline for objecting and the consequences on
appeal for failing to object. 11th Cir. R. 3-1. Notwithstanding this
waiver, we may review the dismissal for plain error if necessary in
the interests of justice.
Id. To establish plain error, the appellant
must show that the lower court (1) made an error, (2) that was
plain, (3) that affected the appellant’s substantial rights, and (4) that
“seriously affects the fairness, integrity, or public reputation of a
judicial proceeding.” Brough v. Imperial Sterling Ltd.,
297 F.3d
1172, 1179 (11th Cir. 2002).
III.
When a plaintiff proceeds in forma pauperis, the district
court must dismiss her complaint if it “fails to state a claim upon
which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii). A sua
sponte dismissal under § 1915(e)(2)(B)(ii) is governed by the same
standard as a motion to dismiss under Federal Rule of Civil Proce-
dure 12(b)(6). Mitchell,
112 F.3d at 1490. To survive under that
standard, a complaint must allege sufficient facts “to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009) (quotation marks omitted). To state a facially plausible
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21-14174 Opinion of the Court 5
claim, the plaintiff must plead facts that allow the court “to draw
the reasonable inference that the defendant is liable for the miscon-
duct alleged.”
Id.
A.
To the extent that Gowers argues that the district court
erred by dismissing her complaint prematurely, we disagree. Be-
cause Gowers was proceeding in forma pauperis, the district court
was required to dismiss her case “at any time” if it determined that
her complaint failed to state a claim for relief.
28 U.S.C.
§ 1915(e)(2). In its order granting Gowers’s motion to proceed in
forma pauperis, the magistrate judge warned Gowers of this re-
quirement, notified her—in detail—of the deficiencies in her initial
complaint, explained what was required to state a plausible claim
for relief, and instructed her to file an amended complaint. The
magistrate judge explicitly warned Gowers that the failure to cor-
rect the deficiencies could result in the dismissal of the case with
prejudice.
Gowers filed an amended complaint but failed to correct the
deficiencies identified by the magistrate judge. The magistrate
judge then issued its report and recommendation for dismissal, and
the district court waited nearly a month before dismissing the
amended complaint. During that time, Gowers did not request ad-
ditional time to object to the magistrate’s report and recommenda-
tion or seek leave to amend her complaint a second time. Gowers
had clear notice of the flaws in her complaint and ample oppor-
tunity to correct them. Under these circumstances, the district
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6 Opinion of the Court 21-14174
court did not err by dismissing Gowers’s amended complaint with
prejudice when it did.
B.
We also reject Gowers’s (liberally construed) argument that
her amended complaint stated a facially plausible claim against
PODS under either the FDCPA or the FCRA. The FDCPA protects
consumers from abusive, deceptive, and unfair debt collection
practices by debt collectors. See
15 U.S.C. §§ 1692(e), 1692e, 1692f.
For purposes of the FDCPA, a “debt collector” is someone who
“uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due an-
other.” 15 U.S.C.A. § 1692a.
Gowers failed to allege facts showing that PODS was a debt
collector subject to liability under the FDCPA; to the contrary, the
documents attached to her amended complaint indicated that
PODS was the creditor for the relevant debt, and Caine & Weiner
was the debt collector. See Fed. R. Civ. P. 10(c) (documents at-
tached to a complaint become “part of the pleading for all pur-
poses”); Gill as Next Friend of K.C.R. v. Judd,
941 F.3d 504, 511
(11th Cir. 2019) (“In deciding whether a complaint states a claim
upon which relief may be granted, we normally consider all
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21-14174 Opinion of the Court 7
documents that are attached to the complaint or incorporated into
it by reference.”).
Gowers also failed to allege facts supporting a claim under
the FCRA. The FCRA prohibits entities that furnish information
to credit reporting agencies from providing information that the
entity knows or has reasonable cause to believe is inaccurate and
requires such entities to investigate disputed information and mod-
ify, delete, or permanently block the reporting of information that
is determined to be inaccurate. 15 U.S.C. § 1681s-2; see Hinkle v.
Midland Credit Mgmt., Inc.,
827 F.3d 1295, 1301 (11th Cir. 2016).
The Act provides a private right of action against a furnishing entity
that willfully or negligently fails to investigate and correct inaccu-
rate information as provided in the Act after receiving notice of a
consumer’s dispute from a credit reporting agency. 15 U.S.C.
§§ 1681s-2(b)(1), 1681n, 1681o; see id. § 1681i.
Gowers’s amended complaint did not allege that PODS fur-
nished information about her debt to a credit reporting agency,
that she informed a credit reporting agency that the debt was dis-
puted, or that a credit reporting agency notified PODS of the dis-
pute and it failed to respond as required by the FCRA. Again, the
documents attached to Gowers’s complaint indicate that Caine &
Weiner, not PODS, furnished the information about Gowers’s
debt, and that once Caine & Weiner received notice of Gowers’s
CFPB complaint, it corrected its reporting.
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8 Opinion of the Court 21-14174
IV.
The court informed Gowers of the deficiencies in her com-
plaint and gave her ample opportunity to correct those deficiencies
and to object to the magistrate judge’s report and recommendation
before it dismissed her amended complaint with prejudice. The
court did not err, let alone plainly err, in concluding that Gowers’s
amended complaint failed to state a claim under § 1915(e)(2)(B), or
in dismissing the case on that ground. We therefore affirm.
AFFIRMED.
