Sekiya v. FBI et al

Filing 6

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)

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

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

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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

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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;
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(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
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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

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