THACKER v. LEVEL 3 COMMUNICATIONS INC.

Filing 11

Entry Granting Motion to Proceed In Forma Pauperis, Discussing Complaint and Pending Motions, and Directing Dismissal of Action; ORDER denying as moot 7 Motion to Appoint Counsel ; denying as moot 8 Motion for Preliminary Injunction; granting 2 Motion for Leave to Proceed in forma pauperis. Judgment consistent with this Entry shall now issue. (S.E.). Signed by Judge Sarah Evans Barker on 6/1/2011. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

JERRY THACKER,

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Plaintiff,
vs.
LEVEL 3 COMMUNICATIONS, INC.,
And all those in active concert,
Defendants.

1:11-cv-00616-SEB-TAB

Entry Granting Motion to Proceed In Forma Pauperis,
Discussing Complaint and Pending Motions, and Directing Dismissal of Action
Plaintiff Jerry Thacker brings this action against Level 3 Communications, Inc.,
(“Level 3”) and “all those in active concert.” Thacker alleges that Level 3 violated the
Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”
Act), 15 U.S.C. § 7701 et seq., by sending him unsolicited “junk” email, causing “rootkits” to be placed into his computer. He also alleges that his First Amendment right to
freedom of association has been violated, and that the defendants have committed
trespass, assault, fraud and deceit, and caused severe and extreme emotional distress.
I.
Thacker’s request to proceed in forma pauperis [2] is granted.
II.
The in forma pauperis statute, 28 U.S.C. § 1915, requires the court to “dismiss
[an in forma pauperis] case at any time if the court determines that . . . the action . . . is
frivolous . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(i), (ii). A complaint is sufficient only to the extent that it "'contain[s] either
direct or inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory.'" Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1969 (2007) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F .2d 1101, 1106 (7th
Cir. 1984)). In addition, a claim may be dismissed under the above standard if it
includes particulars that show the plaintiff cannot possibly be entitled to the relief it
seeks. Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994).

It is evident that the complaint must be dismissed for failure to state a claim upon
which relief can be granted. The circumstances compelling this disposition are the
following:
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The CAN-SPAM Act can only be enforced by certain federal agencies and
other designated persons. It does not provide a cause of action for private
citizens. 15 U.S.C. § 7706; see Martin v. CCH, Inc., 2011 WL 1118492 at *3
(N.D.Ill. March 24, 2011)(no cause of action for private citizens under CANSPAM Act); RJ Production Co. v. Nestle USA, Inc, 2010 WL 1506914 (D.D.C.
April 15, 2010) (pro se plaintiff lacked standing to enforce CAN-SPAM
because only a provider of Internet access service can bring private cause of
action). Thacker lacks standing to assert this claim.

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Thacker’s First Amendment claim fails to state a claim upon which relief can
be granted because the “First Amendment only protects a person from the
government, or a particular state actor, not from private citizens.” Gross v.
Town of Cicero, Ill., 619 F.3d 697, 709 (7th Cir. 2010). Thacker does not
allege that Level 3 is a state actor.

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The claims against unnamed “all those in active concert” are dismissed
because “it is pointless to include [an] anonymous defendant[ ] in federal
court; this type of placeholder does not open the door to relation back under
Fed.R.Civ.P. 15, nor can it otherwise help the plaintiff.” Wudtke v. Davel, 128
F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted).

Having dismissed all of the federal claims, the court declines to exercise supplemental
jurisdiction over any state law claim.
For the reasons explained above, the complaint fails to survive the screening
required by §1915 because it fails to contain a legally viable claim against the
defendants. Dismissal of the action is therefore mandatory. Thacker’s motion to appoint
counsel [7] and motion for preliminary injunction [8] are each denied as moot.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 06/01/2011
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana