Plaintiff Objects to Magistrate Judge’s Decision That His TCPA Claims Are Frivolous
Plaintiff Lee Cunningham objects to the recommendations in a July 7 report from U.S. Magistrate Judge Chad Bryan for Middle Alabama in Montgomery that his Telephone Consumer Protection Act claims against Southern Power be dismissed as frivolous (see 2307110043), said…
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Cunningham’s response Thursday (docket 2:22-cv-00621). The utility contends Cunningham has no basis for believing, and in fact knows, Southern Power isn’t the party that allegedly called him, in violation of the TCPA (see 2304280041). Cunningham, an in forma pauperis (in the manner of a pauper) and pro se plaintiff, contends Bryan erred when he concluded the TCPA claims were frivolous, said his response. “A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them,” it said. But an in forma pauperis complaint may not be dismissed “simply because the court finds the plaintiff's allegations unlikely,” it said.