Case: 24-50121 Document: 44-1 Page: 1 Date Filed: 03/14/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 14, 2025
No. 24-50121
Lyle W. Cayce
____________
Clerk
John Z. Doe, III,
Plaintiff—Appellant,
versus
Charter Communications, L.L.C., A Connecticut corporation;
Hireright, L.L.C., a Tennessee corporation; Paul Ferguson, Clerk
of the Circuit Court of Arlington County, Virginia,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:23-CV-1458
______________________________
Before Richman, Graves, and Ramirez, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
John Doe appeals the district court’s dismissal of his action under 28
U.S.C. § 1951(e)(2)(B). Doe also appeals the district court’s denial of his
motion to appoint counsel and to proceed anonymously. For the reasons
stated herein, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
John Doe asserts that in 2014 he was found not guilty by reason of
insanity (NGRI) for an offense in Arlington County, Virginia and
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No. 24-50121
subsequently committed to the state hospital in 2015. 1 Doe asserts that, after
his first job offer out of college was rescinded because of the 2014 arrest and
commitment, he changed his legal name. In 2020, Doe left Virginia. On
October 23, 2020, a bench warrant issued for failure to appear.
Doe asserts that he began working as a subcontracted software
developer in Texas in 2022. He further asserts that when he went to renew
his identification to obtain a security badge at work, he was arrested based on
the Virginia capias. He asserts that he was released after Virginia declined
extradition. He subsequently filed a series of actions in Virginia challenging
the post-verdict statutory process as unconstitutional.
Doe asserts that he received a job offer from Charter Communications
LLC in 2023 for the position of network engineer, pending completion of a
background check to be performed by HireRight LLC. That same year, Doe
asserts that Paul Ferguson, Clerk of the Circuit Court of Arlington, Virginia,
began reporting on his employment background checks that he has “a
criminal record and active warrant for the misdemeanor of Violation Of Not
Guilty By Insanity Conditional Release, a crime that doesn’t exist, and is a
fugitive.” (Internal marks and emphasis omitted).
Doe further asserts that, based on records maintained by Ferguson,
HireRight inaccurately reported to Charter that Doe had a criminal record
and an active warrant. 2 Doe asserts that this information is “wildly
inaccurate and legally impossible.” Further, as a result of the report, Doe did
_____________________
1
Doe apparently pepper-sprayed a professor in an attempt to make a citizen’s
arrest upon the belief that the professor had gained access to his computer to stalk or harass
him. Pendleton v. Miyares, No. 1:23-cv-446, 2023 WL 7109681, *2 (E.D. Va. Oct. 3, 2023).
2
The same information was later provided to another consumer reporting agency,
CNet Technologies, which reported it to another potential employer, HEB, who declined
to consider Doe for employment as a result.
2
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not pass Charter’s pre-employment screening, and the job offer was
rescinded. Doe notified Charter that the matter would be legally disputed.
Thereafter, Doe filed a charge with the Equal Employment Opportunity
Commission, and his right to sue notice was issued on October 10, 2023.
On November 30, 2023, Doe filed a pro se civil rights action under 42
U.S.C. § 1983 against Charter, HireRight, and Ferguson, alleging violations
of the Fair Credit Reporting Act (FCRA), the Americans with Disabilities
Act (ADA), and the Fourteenth Amendment. 3
In the complaint, Doe asserted that HireRight violated the FCRA by
reporting that Doe “has a criminal record regarding a misdemeanor for which
there is a warrant.” Doe argued that the warrant was issued in connection
with his failure to appear for a civil hearing involving the revocation of his
NGRI conditional release. 4 He further argued that neither revocation of
release nor civil contempt are a crime under Virginia law 5, and the
information should have been excluded under 15 U.S.C. §§ 1681c(a)(5) and
1681i. Doe alleged that he told HireRight that the information was
inaccurate, and HireRight failed to either correct its report or note that Doe
contested its accuracy.
Doe also asserted a FCRA claim against Charter for using the
allegedly erroneous information in HireRight’s report to make the adverse
decision to withdraw the job offer. Further, Doe claimed that Charter
_____________________
3
Doe later moved to amend his complaint to include HEB and CNet. But the
district court denied the motion as frivolous.
4
He cited Va. Code § 19.2-182.3.
5
Doe cited Va. Code §§ 19.2-182.8 and 16.1-278.16. The first section deals with
revocation of conditional release. See Va. Code § 19.2-182.8. The second section deals
with civil contempt in the context of a child custody, visitation, or support obligation. See
Va. Code § 16.1-278.16.
3
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violated the ADA by withdrawing the job offer after learning that Doe had
been characterized as insane.
Doe asserted a 42 U.S.C. § 1983 action against Ferguson, in his official
capacity, alleging that Ferguson violated Doe’s rights to equal protection and
due process under the Fourteenth Amendment by “recording a civil
rehabilitation process as a criminal matter.” Doe also alleged that Ferguson
violated his due process rights by reporting that he had been “charged with
crimes that do not exist.” In addition, Doe argued that Ferguson violated his
substantive due process right to privacy by revealing “sensitive, highly
personal, grossly inaccurate, and extraordinarily damaging medical
information to HireRight.”
Along with the complaint, Doe filed an application to proceed in forma
pauperis (IFP). He also moved for leave to proceed anonymously, citing inter
alia the sensitive and highly personal medical information at issue. Doe also
requested the appointment of counsel.
The district court granted Doe’s application to proceed IFP.
However, the district court denied the motion to proceed anonymously,
noting that Doe had disclosed his real name in his IFP application and in other
litigation challenging the warrant. The district court also denied the motion
for appointment of counsel, finding that Doe could adequately develop the
facts and present his case in any further proceedings. The district court
dismissed Doe’s claims against Charter, HireRight, and Ferguson pursuant
to 28 U.S.C. § 1915(e)(2)(B). 6
_____________________
6
The district court judgment erroneously cited 28 U.S.C. § 1915(a)(1), which
states that the court may authorize the commencement of an action without prepayment of
fees. But the district court order adopting the magistrate judge’s report and
recommendation correctly set out
28 U.S.C. § 1915(e)(2)(B), as did the magistrate judge’s
report and recommendation.
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The district court specifically found that Doe’s FCRA claim against
Charter was barred because there is no private right of action under the
FCRA against users of consumer reports. The district court dismissed the
Fourteenth Amendment claim against Ferguson as frivolous because it
reasserted allegations that had already been litigated in Doe’s suit against
Ferguson in Virginia. Citing Pendleton v. Miyares, No. 1:23-cv-446, 2023 WL
7109681 (E.D. Va. Oct. 3, 2023), the district court found that Doe’s FCRA
claim against HireRight and his ADA claim against Charter were based on
the allegation that the warrant itself was unlawful or inaccurate. The district
court also noted that Doe had already challenged the warrant in the Eastern
District of Virginia, which had dismissed his claim under abstention
principles. The district court said that the Virginia court found that Doe did
not show that the warrant was unlawful or that any other exceptional
circumstance applied to his claim. Thus, the district court found that Doe’s
allegation that the warrant was issued in error was baseless, and that Doe’s
claims against HireRight and Charter were frivolous. Doe subsequently
appealed.
STANDARD OF REVIEW
Under § 1915(e)(2)(B), the district court is required to dismiss an IFP
case “at any time” if it determines that the case is “frivolous or malicious”
or “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(i)&(ii); see Rogers v. Boatright,
709 F.3d 403, 407 (5th Cir.
2013). In this case, the district court dismissed Doe’s complaint on the
ground that it was frivolous. “We review dismissals as frivolous under
28
U.S.C. § 1915(e)(2)(B)(i) for abuse of discretion.” Carmouche v. Hooper,
77
F.4th 362, 366 (5th Cir. 2023). The district court may dismiss an IFP
complaint “if it lacks an arguable basis in law or fact.”
Id. (internal marks
and quotation omitted). “A complaint is frivolous if it lacks an arguable basis
in law or fact.” Rogers,
709 F.3d at 407 (internal marks and citation omitted).
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“A complaint lacks an arguable basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint alleges the violation of a legal
interest which clearly does not exist.” Id. However, we liberally construe
pro se complaints, which are held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner,
404 U.S. 519, 520 (1972).
We have approved the use of a Spears hearing or a questionnaire to
“aid in the determination of whether an IFP complaint is frivolous.” Berry
v. Brady, 192 F.3d 504, 507 (5th Cir. 1999); see also Spears v. McCotter,
766
F.2d 179 (5th Cir. 1985) overruled on other grounds by Neitzke v. Williams,
490
U.S. 319, 324 (1989); and Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994). But
we have also recognized that a district court “should be able to dismiss as
frivolous a significant number of” IFP suits “on the complaint alone.” Green
v. McKaskle,
788 F.2d 1116, 1120 (5th Cir. 1986). In this case, the district
court dismissed Doe’s IFP suit on the complaint alone, without a Spears
hearing or a questionnaire. “Should it appear that insufficient factual
allegations might be remedied by more specific pleading” we must determine
whether the allegations, “if developed by a questionnaire or in a Spears
dialog, might have presented a nonfrivolous section 1983 claim.” Eason,
14
F.3d at 9. However, such consideration is “unnecessary in cases where the
facts alleged are fantastic or delusional scenarios or the legal theory upon
which a complaint relies is indisputably meritless.” Id. at n.5 (internal marks
and citation omitted).
DISCUSSION
On appeal, Doe challenges the district court’s failure to consider the
merits of his constitutional claims. Specifically, he asserts that his
constitutional claims in this case are not duplicative of his claims that were
litigated in Virginia. Doe asserts that he “is being defamed as criminally
insane and has been rendered professionally unemployable” in retaliation for
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the suits he filed in Virginia. Doe also asserts that two consumer reporting
agencies that had previously cleared him for employment had started
“reporting that he is a fugitive wanted for a crime that does not exist and is
insane.” (Internal marks omitted). Further, in both instances, Doe says the
information was acted upon by the defendants despite his dispute,
“damaging Doe’s livelihood in violation of the FCRA, ADA, and the
Fourteenth Amendment.” Doe also asserts that the district court improperly
failed to address his FCRA claims. Additionally, Doe challenges the
dismissal of his ADA claim, asserting that Charter discriminated against him
based on the report indicating that Doe had been diagnosed as insane. He
further contends that his complaint in this case does not challenge the
warrant at issue in the litigation in Virginia. Moreover, Doe maintains that
the district court erred by denying his request to proceed anonymously in this
litigation and by denying his request for counsel.
Section 1983 Claims Against Ferguson
As noted above, Doe challenges the dismissal of his constitutional
claims. Doe alleged that Ferguson violated the Fourteenth Amendment by
inaccurately “recording a civil rehabilitation process as a criminal matter”
and by “revealing sensitive, highly personal, grossly inaccurate, and
extraordinarily damaging medical information to HireRight.” In connection
with this alleged constitutional injury, Doe sought damages against Ferguson.
The district court dismissed these claims as frivolous on the ground that it
was duplicative of Doe’s claim against Ferguson that was litigated in the
Eastern District of Virginia. On appeal, Doe argues that the claims are not
duplicative because, in contrast to the Virginia litigation, he does not
challenge the warrant here.
IFP complaints may be dismissed as frivolous “when they seek to
relitigate claims which allege substantially the same facts arising from a
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common series of events which have already been unsuccessfully litigated by
the IFP plaintiff.” Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989); see
also Neitzke,
490 U.S. at 324 (acknowledging Congress intended the IFP
screening to address “repetitive lawsuits”). Notably, this court has affirmed
the dismissal of a claim as duplicative, even where it was a different claim, so
long as it stemmed from the same event as the one in the prior litigation. See
Brown v. Tex. Bd. of Nursing, No. 94-41140,
1995 WL 10522, at *1-2,
554 F.
App’x 268, 269 (5th Cir. 2014) (unpublished); see also Rowland v. Tex. Dep’t
of Crim. Just., No. 94-41140,
44 F.3d 1005, at *1-2 (5th Cir. 1995) (affirming
a dismissal of a claim on the ground that it was duplicative, even though the
claim was based on the Eighth Amendment and the prior one was based on
due process and equal protection principles) (unpublished); Kimble v.
Jefferson Parish Sheriff’s Office, No. 22-30078,
2023 WL 1793876, at *4 (5th
Cir. Feb. 7, 2023) (unpublished) (concluding that the district court properly
dismissed claims as duplicative where they stemmed from the same factual
allegations asserted in the prior litigation even though the “precise theory of
liability” presented in the prior litigation was different).
In the Virginia litigation, Doe filed suit against Ferguson and others,
alleging that a warrant had been issued for Doe’s arrest after Doe fled
Virginia and failed to appear for a show cause hearing related to a report that
he had violated the conditions of his NGRI conditional release. See Pendleton,
2023 WL 7109681, *2. The court in that case read Doe’s complaint as a
challenge to an ongoing state criminal proceeding, i.e., the arrest warrant, and
a civil proceeding, i.e., the revocation of his conditional release. See
id. The
court dismissed the complaint because it constituted an attack on ongoing
state criminal and civil proceedings for which neither Doe’s § 1983 complaint
nor habeas petition were appropriate. See id. In this case, Doe has also filed
suit against Ferguson, challenging his recording of the arrest warrant as a
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criminal matter and the reference to Doe’s NGRI conditional release, which
revealed sensitive medical information.
Accordingly, Doe’s claim against Ferguson in this case and the
Virginia case both involve “the same series of events” and contain
allegations of “many of the same facts.” Bailey v. Johnson, 846 F.2d 1019,
1021 (5th Cir. 1988). Under these circumstances, the district court did not
abuse its discretion by dismissing, on the complaint alone, Doe’s
constitutional claims against Ferguson as duplicative and therefore frivolous.
See Wilson,
878 F.2d at 847, 850; see also Green,
788 F.2d at 1120 (recognizing
that IFP suits can be dismissed on the complaint alone as frivolous); Eason,
14 F.3d at 9 n.5 (recognizing that indisputably meritless claims can be
dismissed on the complaint alone).
FCRA Claim Against Charter
Doe alleged that Charter violated the FCRA by “improperly using
erroneous information” about Doe’s criminal record that Charter received
from HireRight. The district court dismissed this claim, finding that “[t]he
FCRA explicitly states that there is no private right of action against users of
consumer reports.” (Internal marks and citation omitted). On appeal, Doe
cites Barnette v. Brook Rd., Inc., 429 F. Supp. 2d 741 (E.D. Va. 2006), an outof-circuit district court decision to challenge that interpretation, suggesting
that such civil actions are not precluded.
Section 1681m of the FCRA applies to “users of consumer reports”
who take adverse actions on the basis of information contained in said
reports. See 15 U.S.C. § 1681m. Congress amended the FCRA by the Fair
and Accurate Credit Transaction Act of 2003 (FACTA), which included
section 1681m(h). Section 1681m(h)(8) addresses enforcement and provides
as follows:
(h) Duties of users in certain credit transactions
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....
(8) Enforcement
(A) No civil actions
Sections 1681n and 1681o of this title shall not
apply to any failure by any person to comply with
this section.
(B) Administrative enforcement
This section shall be enforced exclusively under
section 1681s of this title by the Federal agencies
and officials identified in that section.
15 U.S.C. § 1681m(h)(8).
The district court interpreted § 1681m(h)(8) to mean that there is no
private right of action against users of consumer reports. A number of circuit
courts have likewise concluded that § 1681m(h)(8) bars private enforcement
of § 1681m in its entirety. See Perry v. First Nat’l Bank, 459 F.3d 816, 820-23
(7th Cir. 2006); Wood v. Third Fed. Sav. and Loan Ass’n, No. 23-3042,
2023
WL 8174269, at *3 (6th Cir. Nov. 20, 2023) (unpublished); N’jai v. U.S.
Dep’t of Educ., No. 22-5243,
2023 WL 3848363, at *1 (D.C. Cir. June 2, 2023)
(unpublished). However, as Doe asserts, the Eastern District of Virginia has
disagreed with that interpretation, instead finding that the limitation in
§ 1681m(h)(8) applies solely to subsection (h)—pertaining to the duties of
users in certain credit transactions—and does not bar a private right of action
to enforce the remainder of § 1681m. Barnette,
429 F. Supp. 2d at 745-49.
But Barnette is not controlling.
This court has not yet addressed the issue of whether section
1681m(h)(8) bars private enforcement of section 1681m in its entirety. We
now agree with our sister circuits that section 1681m(h)(8) bars private
enforcement of section 1681m in its entirety as it states that sections 1681n
and 1681o “shall not apply to any failure by any person to comply with this
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section.” 15 U.S.C. § 1681m(h)(8)(A) (emphasis added); see also Perry, 459
F.3d at 820-23; Wood, No. 23-3042,
2023 WL 8174269, at *3; N’jai, No. 22-
5243,
2023 WL 3848363, at *1. Thus, the district court did not abuse its
discretion in dismissing Doe’s FCRA claim against Charter.
Dismissal of FCRA Claim Against HireRight and ADA Claim Against Charter
Doe also challenges the district court’s dismissal of his FCRA claim
against HireRight and his ADA claim against Charter as frivolous. In
dismissing those claims as frivolous, the district court reasoned that both
claims were based on Doe’s allegation that the warrant was unlawful or
inaccurate. The district court specifically determined that Doe had alleged
“that HireRight’s reporting was based on records maintained by Defendant
Ferguson, not that the report itself was in error.” (Internal marks and
citation omitted). Further, the district court found that Doe alleged “no
additional facts to support his ADA claim against Charter apart from its
reliance on the report.” As a result, the district court reasoned that a finding
for Doe on those claims would require a finding that the warrant was unlawful
or inaccurate. The district court further concluded that the “allegation that
the Warrant is in error is clearly baseless,” citing the Eastern District of
Virginia’s findings in the Virginia litigation.
However, in his brief, Doe argues that his complaint, and therefore
these claims, are not based on a challenge to the warrant. Liberal
construction of Doe’s FCRA claims against HireRight support Doe’s
assertion that he is challenging the accuracy of HireRight’s characterization
of the warrant, not the warrant itself. Specifically, Doe asserted that, “based
on records maintained by Defendant Ferguson, HireRight inaccurately
reported to Charter that Plaintiff has a criminal record for the offense of
Violation of Not Guilty By Reason of Insanity Conditional Release which is
listed as a misdemeanor (or equivalent) with a sentence recorded as an active
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warrant.” (Internal marks omitted). Similarly, in another section of the
complaint, Doe alleged that HireRight violated the FCRA “by reporting that
Plaintiff has a criminal record regarding a misdemeanor for which there is a
warrant,” which is for failure to appear at a civil hearing. Doe also asserted
that HireRight violated the FCRA by failing to take appropriate measures
once he brought the alleged errors in HireRight’s report to HireRight’s
attention. These claims are not necessarily based on a challenge to the
warrant itself.
Regarding the ADA claim against Charter, Doe alleged that Charter
violated the ADA by rescinding the job offer to Doe after learning that he had
been diagnosed as being insane, a disability. Contrary to the district court’s
findings, that allegation does not depend on a finding that the warrant was
unlawful or inaccurate.
Moreover, in his brief, Doe suggests that the district court has misread
the conclusions of the court in the Virginia litigation. The district court
stated that the Virginia court “found that Plaintiff did not show that the
Warrant was unlawful.” That characterization is not entirely correct.
Rather, in dismissing Doe’s complaint in the Virginia case so as not to
interfere with the ongoing state proceedings, the Eastern District of Virginia
noted that Doe had not shown that the arrest warrant had been issued in bad
faith or to harass him. See Pendleton, 2023 WL 7109681, at *3.
However, publicly available records from the Arlington County
Circuit Court indicate that the warrant was a criminal matter. See Arlington
County Circuit Court – Criminal Division, Nos. CR14000922-09,
CR14000995-09, CR14000918-09. Thus, we are unable to conclude that
HireRight’s report did not accurately report the information contained in
those records, or that Charter improperly relied on that report. Although the
district court did not specifically mention or address the criminal court
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records, this presents a basis for affirming dismissal of this claim. See Taylor
v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015) (we may affirm for a
district court’s order dismissing a claim “on any basis supported by the
record.”).
For the reasons set out herein, we AFFIRM the district court’s
dismissal of Doe’s claims. 7
_____________________
7
Doe also takes issue with the district court’s denial of his motions to proceed
anonymously and to appoint counsel. However, those issues lack merit.
13
