                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 04 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ALFRED BANKS,                                   No. 13-56819

              Plaintiff - Appellant,            D.C. No. 3:10-cv-01886-GPC-
                                                MDD
 v.

ACS EDUCATION; et al.,                          MEMORANDUM*

              Defendants - Appellees.


                   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


       *
             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).
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.

                                           2
      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
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


                                            4
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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