Sekiya v. Facebook, Inc.

Filing 7

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 2 Application to Proceed in forma pauperis; and dismissing without prejudice 1 Complaint. Plaintiff may file an amended complaint on or before January 24, 2017. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIKKO T. SEKIYA,
Plaintiff,
v.

No. 16cv1368 KG/SCY

FACEBOOK et al.,
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 December 15, 2016 (“Application”)
and on Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed December 1,
2016 (“Complaint”). 1

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,
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The Complaint includes the Appendix/Supplement, Doc. 5, filed December 16, 2016.

if the court finds that the allegations of poverty are untrue or that the action is
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; (iii) Plaintiff has no assets; and
(iv) Plaintiff has a son and a daughter who rely on him for support. 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).
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Plaintiff asserts claims against Facebook and the unknown owner of Facebook based on the
following allegations in the Complaint:
Defendant owner of Facebook/unknown . . . is the one who has not shut my
Facebook down.
....
The case consist[s] of numerous videos being showed on Facebook of my day to
day life in the rest room, shower, even having sex etc. Violating my privacy act.
....
Three Facebook accounts under my name Mikko Sekiya, that I can not log into and
have not been able to for the last two years.
....
Three Facebook accounts that have been open for two years with out me ever being
able to log on.
Doc. 5 at 2-4. It appears that Plaintiff is alleging that Defendants are liable for the tort of invasion
of privacy by publishing private facts. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1217-18
(10th Cir. 2007) (“New Mexico recognizes the tort of invasion of privacy . . . [via] publication of
private facts,” which is “disclosure which would be objectionable to a reasonable person, and a
lack of legitimate public interest in the information”).
The Court will dismiss the Complaint without prejudice because 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). It appears from the few factual
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allegations in the Complaint that the videos for which Plaintiff seeks to hold Defendants liable
were provided by a third party user; there are no factual allegations that Defendants created the
videos. The Complaint seeks to hold Defendants liable for the tort of invasion of privacy for
publishing the videos.

The Court will, therefore, dismiss the Complaint pursuant to the

Communication Decency Act.

See Klayman v. Zuckerberg, 753 F.3d 1357-58 (dismissing

negligence and assault claims pursuant to the Communications Decency Act because “(i)
Facebook is a provider or user of an interactive computer service, (ii) the information for which
[plaintiff] seeks to hold Facebook liable was information provided by another information content
provider, and (iii) the complaint seeks to hold Facebook liable as the publisher or speaker of that
information”); 47 U.S.C. § 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”).
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.
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,
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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 December 15, 2016, is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s Civil Rights Complaint Pursuant to
42 U.S.C. § 1983, Doc. 1, filed December 15, 2016, and Doc. 5, filed December 16, 2016, is
DISMISSED without prejudice. Plaintiff may file an amended complaint within 21 days of
entry of this Order.

__________________________________
UNITED STATES DISTRICT JUDGE

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