Alfred Banks v. Acs Education;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED BANKS,
Plaintiff - Appellant,
v.
ACS EDUCATION; et al.,
Defendants - Appellees.
No. 13-56819
D.C. No. 3:10-cv-01886-GPC-
MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted December 30, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
Alfred Banks appeals pro se the order dismissing with prejudice his third
amended complaint, alleging that eighteen defendants violated the Racketeer
Influenced and Corrupt Organization Act (“RICO”), Fair Debt Collection Practices
FILED
JAN 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”), among other laws, by
conspiring to “negative[ly] report” information about his student loans and consumer
credit accounts. Banks also challenges the district court’s denial of his motion for
reconsideration and numerous interim orders.1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We decline to consider all
issues relating to interim orders that were immaterial to the final judgment as well as
issues that are unsubstantiated by explanation or argument. See Nat’l Am. Ins. Co. of
Cal. v. Certain Underwriters at Lloyd’s London, 93 F.3d 529, 540 (9th Cir. 1996)
(declining to review orders immaterial to final judgment); Acosta-Huerta v. Estelle,
7 F.3d 139, 144 (9th Cir. 1993) (finding waiver of issues not sufficiently argued in pro
se appellant’s opening brief). In all other regards, we affirm.
1 In addition, Banks presents three motions on appeal. First, his motion for
judicial notice of certain newspaper articles is denied, as Banks fails to identify or
attach the documents or explain their relevance to his case. Second, his motion to
strike various portions of the record is also denied. An order by the Clerk of Court
granted appellees’ motion to substitute redacted versions for originally filed exhibits
that included Banks’ social security number and other identifying information,
resolving the one meritorious issue Banks raises in his motion to strike. Finally, we
deny Banks’ motion for sanctions arising from appellees’ filing of documents
containing Banks’ personal identifying information. Banks offers no legal basis for
his request that appellees’ counsel be suspended from practice and sanctioned in the
amount of five thousand dollars, nor does he dispute that the filing was inadvertent
and swiftly corrected.
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There was no error in dismissing the claims against the California Student Aid
Commission (“CSAC”) on Eleventh Amendment grounds. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). As “the primary state agency for the
administration of state-authorized student financial aid programs,” Cal. Educ. Code
§ 66010.6(b), CSAC is immune from this private lawsuit in federal court unless
Congress clearly abrogated immunity or CSAC otherwise waived immunity. See
Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1999). Congress has
not abrogated state immunity under RICO, Bair v. Krug, 853 F.2d 672, 674–75 (9th
Cir. 1988) or the FDCPA, 15 U.S.C. § 1692a(6)(C) (excluding states from the
definition of “debt collector”), and could not validly abrogate immunity under the
FCRA, see Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003) (recognizing
Congress may not abrogate sovereign immunity pursuant to the Commerce Clause).
Because CSAC did not waive immunity, dismissal was proper.
Nor was there error in dismissing Banks’s RICO claim which fails as a matter
of law because violations of the FDCPA and FCRA are not within the enumerated
predicate acts that may amount to a “pattern of racketeering activity.” See 18 U.S.C.
§ 1961(1) (listing predicate acts). And, absent allegations of a usurious interest rate,
student loans and lines of consumer credit do not meet the statutory definition of an
“unlawful debt” for purposes of a RICO claim. See id. § 1961(6) (defining “unlawful
3

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debt” as debt incurred as a result of illegal gambling or in violation of state or federal
usury laws). Because Banks failed to state a claim under 18 U.S.C. § 1962(a)–(c), his
conspiracy claim under 18 U.S.C. § 1962(d) also necessarily fails. See Reddy v. Litton
Indus., 912 F.2d 291, 295 (9th Cir. 1990).
To state a claim under the FCRA, Banks was required, at a minimum, to allege
factual content showing an inaccuracy in his credit report and that he communicated
his disputes to the credit reporting agencies (“CRAs”). Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1154, 1162 (9th Cir. 2009). Although Banks alleges
sufficient facts to demonstrate he informed the CRAs that he disputed information
reported by defendants ACS Education Services and ACS College Loan Corporation,
Banks failed to sufficiently allege that the reported information is inaccurate. See
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 890–91 (9th Cir. 2010). With
regard to the remaining defendants, Banks failed to allege that he notified the CRAs
of any dispute regarding information furnished by those entities. See Gorman, 584
F.3d at 1162.
To state a claim under the FDCPA, Banks was required to allege “factual
content that allows the court to draw the reasonable inference” that the defendants:
(1) are debt collectors, and (2) used “any false, deceptive, or misleading representation
or means in connection with the collection of any debt” or otherwise engaged in
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conduct that violates a provision of the FDCPA. Schlegel v. Wells Fargo Bank, NA,
720 F.3d 1204, 1208 (9th Cir. 2013). Most defendants in this litigation are original
creditors, and therefore, fall outside the definition of “debt collector” under the
circumstances. See De Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir.
2011); see also S. Rep. No. 95-382, at 3 (1977), reprinted in 1977 U.S.C.A.N.N.
1695, 1698 (“The term debt collector is not intended to include . . . ‘in house’
collectors for creditors so long as they use the creditor’s true business name when
collecting . . . .”). Although the complaint and its attachments contain sufficient
information to infer that defendants Procollect and Coast Professional are debt
collectors, Banks has not alleged sufficient facts to plausibly show that either entity
engaged in conduct that violates the FDCPA. See Cruz v. Int’l Collection Corp., 673
F.3d 991, 999–1000 (9th Cir. 2012).
Because Banks had several earlier opportunities to amend his complaint and
failed to add any factual allegations to cure the deficiencies identified by the district
court, it was not an abuse of discretion to dismiss the third amended complaint with
prejudice. Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156, 1167 (9th Cir. 2009).
Finally, there was no abuse of discretion in denying Banks’s motion for
reconsideration, which was based on unsupported allegations of judicial bias.
AFFIRMED
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