Sekiya v. FBI et al, No. 1:2017cv00531 - Document 6 (D.N.M. 2017)
Court Description: MEMORANDUM OPINION AND ORDER granting 2 MOTION for Leave to Proceed in forma pauperis and dismissing 1 Complaint; plaintiff may file an amended complaint within 21 days of entry of this order by Chief Judge M. Christina Armijo. (vv)
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Sekiya v. FBI et al Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO MIKKO T. SEKIYA, Plaintiff, v. No. 17cv531 MCA/LF FBI, FACEBOOK, JAMES COMEY, MARK ZUCKERBERG, FISA and NSA, Defendants. MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed May 8, 2017 (“Application”) and on Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed May 8, 2017 (“Complaint”). For the reasons stated below, the Court will GRANT Plaintiff’s Application and DISMISS Plaintiff’s Complaint without prejudice. Plaintiff shall have 21 days from entry of this Order to file an amended complaint. Failure to timely file an amended complaint may result in dismissal of this case without prejudice. Application to Proceed in forma pauperis The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees. When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is Dockets.Justia.com frivolous or malicious, it may dismiss the case[.] Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at 339. The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff is unemployed and has no income; (ii) Plaintiff has no cash and no funds in bank accounts; and (iii) Plaintiff has no assets. The Court finds that Plaintiff is unable to pay the costs of this proceeding because he is unemployed, and has no income, cash or assets. Dismissal of Proceedings In Forma Pauperis The statute governing proceedings in forma pauperis requires federal courts to dismiss an in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which relief may be granted; ... or seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2). “[P]ro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991). Plaintiff asserts invasion of privacy claims against Defendants Mark Zuckerberg and 2 Facebook. Plaintiff alleges Defendants Zuckerberg and Facebook have not shut down Plaintiff’s Facebook account which Plaintiff has not been able to access for over three years. Plaintiff also alleges that Defendants James Comey, FISA and NSA have not stopped Zuckerberg and Facebook from showing videos on Plaintiff’s Facebook account. Plaintiff has previously filed two complaints asserting privacy claims against Zuckerbeg and Facebook based on the same facts. See Sekiya v. Facebook, No. 16cv1368 KG/SCY (D.N.M.); Sekiya v. Zuckerberg, No. 17cv283 JCH/KK (D.N.M.). Judge Gonzales dismissed the complaint against Facebook and the unknown owner of Facebook stating: Defendants are immune to Plaintiff’s cause of action. The Communications Decency Act, 47 U.S.C. § 230, “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. America Online, Inc., 129 F.3d 327, 330 (D.C. Cir. 1997); 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”). “Facebook qualifies as an interactive computer service.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). Doc. 5 at 3, in Sekiya v. Facebook, No. 16cv1368 KG/SCY. Judge Herrera dismissed the complaint against Zuckerberg for the same reasons. The Court will dismiss the claims against Defendants Zuckerberg and Facebook in this case without prejudice because they are immune to Plaintiff’s claims pursuant to the Communication Decency Act as discussed by Judge Gonzales and Judge Herrera. The Court notifies Plaintiff that it may impose filing restrictions on Plaintiff if he continues to file privacy claims against Mark Zuckerberg and Facebook based on the facts alleged in this case and his cases before Judge Gonzales and Judge Herrera. The Court will also dismiss the claims against the FBI, James Comey, FISA and NSA without prejudice for failure to state a claim. “[T]o state a claim in federal court, a complaint 3 must explain what each defendant did to him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). The only allegation against Comey, FISA and NSA is that they did not stop Zuckerberg and Facebook from making videos available on Plaintiff’s Facebook account. There are no factual allegations against the FBI. Because it has dismissed all of the claims in the Complaint, the Court will dismiss the Complaint without prejudice. Plaintiff shall have 21 days from entry of this Order to file an amended complaint. Failure to timely file an amended complaint may result in dismissal of this case without prejudice. Compliance with Rule 11 While the Court will permit Plaintiff to file an amended complaint, he must do so consistent with Rule 11 of the Federal Rules of Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides: Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; 4 (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c). Service on Defendants Section 1915 provides that the “officers of the court shall issue and serve all process, and perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides that: At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. Fed. R. Civ. P. 4(c)(3). The Court will not order service of Summons and Complaint on Defendants at this time. The Court will order service if Plaintiff timely files an amended complaint which states a claim over which the Court has jurisdiction, and which includes the address of every defendant named in the amended complaint. IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed May 8, 2017, is GRANTED. IT IS ALSO ORDERED that Plaintiff’s Civil Rights Complaint Pursuant to 5 42 U.S.C. § 1983, Doc. 1, filed May 8, 2017, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of entry of this Order. ________________________________________ CHIEF UNITED STATES DISTRICT JUDGE 6
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