Echenique v. Google Inc., et al

Filing 13

ORDER of Dismissal. ORDERED that the action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 7/5/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00883-BNB
IVETTE T. ECHENIQUE,
Plaintiff,
v.
GOOGLE, INC., and
YOU TUBE,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Ivette T. Echenique, acting pro se, initiated this action by filing a
Complaint, ECF No. 1. On April 26, 2012, Magistrate Judge Boyd N. Boland ordered
Ms. Echenique to file an Amended Complaint that complies with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and to show cause why
the action should not be dismissed as repetitive . On June 14, 2012, Ms. Echenique
filed an Amended Complaint, ECF No. 12, that included a response to the show cause
directive. Based on Ms. Echenique’s response, the Order to Show Cause is
discharged.
Ms. Echenique has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915 in this action. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss
the action if the claims asserted in the Amended Complaint are frivolous. A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support an arguable claim. See

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated below, the
Court will dismiss the Amended Complaint pursuant to § 1915(e)(2)(B)(i).
The Court must construe the Amended Complaint liberally because Ms.
Echenique is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Amended
Complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [the Court] should do so despite the plaintiff’s failure to cite proper legal
authority, [her] confusion of various legal theories, [her] poor syntax and sentence
construction, or [her] unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.
However, the Court should not be an advocate for a pro se litigant. See id.
Ms. Echenique asserts three claims in the Amended Complaint. In Claim One,
she asserts that her rights have been violated because Defendants have disclosed
private information about her in violation of her right to privacy, including her
involvement in court, unemployment, and medical settlement proceedings. In Claim
Two, Ms. Echenique asserts that her name was used in a pornographic posting on You
Tube and subsequently on Google. Ms. Echenique contends that as a result of this
posting she was terminated from her job. Ms. Echenique also asserts that after
conducting a search of her name she found many pornographic postings that defamed
her. Ms. Echenique contends that Defendants are responsible for the defaming
postings that depict her in a false light and have caused mental, emotional, and
economic injuries. Finally, in Claim Three, Ms. Echenique reasserts her right to privacy
claim and contends that she has a right to know who is cyberstalking and harassing her.
Ms. Echenique seeks injunctive relief and money damages.

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Ms. Echenique’s state law claims before this Court on the basis of diversity must
be dismissed because “47 U.S.C. § 230 creates a federal immunity to any state law
cause of action that would hold computer service providers liable for information
originating with a third party.” Ben Ezra, Weinstein, & Company, Inc., v. America
Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000) (citing § 230(e)(3) (“No cause of
action may be brought and no liability may be imposed under any State or local law that
is inconsistent with this section.”)). Pursuant to 47 U.S.C. § 230(c)(1), “[n]o 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.”
“The elements required for Section 230(c) immunity are: (1) that the defendant is
a provider or user of an ‘interactive computer service;’ (2) that the asserted claims treat
the defendant as the publisher or speaker of the information; and (3) that the
information is provided by another ‘information content provider.” Parker v. Google,
Inc., 242 F. App’x 833, 838 (3d Cir. 2007). An “interactive computer service” is defined
as “any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including specifically
a service or system that provides access to the Internet . . . .” 47 U.S.C. § 230(f)(2). An
“information content provider” is defined as “any person or entity that is responsible, in
whole or in part, for the creation or development of information provided through the
Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). “Taken
together, these provisions bar state-law plaintiffs from holding interactive computer
service providers legally responsible for information created and developed by third
parties.” Nemet Chevrolet, Ltd., v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th

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Cir. 2009); see also Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (same).
“Congress thus established a general rule that providers of interactive computer
services are liable only for speech that is properly attributable to them.” Id.
Ms. Echenique does not allege that Defendants created or developed the
information she contends is detrimental to her employment opportunities or well-being.
Instead, she seeks to hold Defendants liable because the search results in question are
available through the Defendants’ Internet search engine. It is clear that Ms.
Echenique’s state law tort claims must be dismissed because the claims are barred by
the immunity established in § 230(c).
As for Ms. Echenique’s equal protection and due process claims and federal
privacy claim, the Court lacks jurisdiction to entertain these claims. Defendants are
private parties, and Ms. Echenique does not allege that the actions by Defendants are
attributable to the state. See Lugar v. Edmundson Oil Co., 457 U.S. 935, 937 (1982).
Therefore, Ms. Echenique’s constitutional violation claims clearly are frivolous.
For the above reasons, the entire action will be dismissed. Furthermore, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore in forma pauperis status will be denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Ms.
Echenique files a notice of appeal she also must pay the full $455.00 appellate filing fee
or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.

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Accordingly, it is
ORDERED that the action is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice.
DATED at Denver, Colorado, this

5th day of

July

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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