Lopez v. Reminger Co., LPA
Filing
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Memorandum Opinion and Order signed by Judge James S. Gwin on 10/28/14. The Court, as set forth in this entry, grants plaintiff's request to proceed in forma pauperis, denies as moot defendants' motions to dismiss and dismisses this action pursuant to 28 USC Section 1915(e). The Court certified an appeal could not be taken in good faith. (Related Docs. 2 , 3 , 4 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
LUTHER LOPEZ,
Plaintiff,
v.
REMINGER CO., LPA, et al.,
Defendants.
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CASE NO. 1:14 CV 542
JUDGE JAMES S. GWIN
MEMORANDUM OF OPINION
AND ORDER
I. INTRODUCTION
On March 11, 2014, Plaintiff pro se Luther Lopez filed this in forma pauperis action for
injunctive, declaratory and monetary relief pursuant to the Privacy Act of 1974 and the
Declaratory Judgment Act, 28 U.S.C. § 2201 against Reminger Co., LPA, Courtney J. Trimacco,
and Jason D. Winter.
Plaintiff alleges in the Complaint that he is the plaintiff in a civil action in the Summit
County Court of Common Pleas, wherein Defendants in the instant case are attorneys
representing the defendants in that case. He further alleges that Defendants mailed discovery
requests to him in the Summit County Case which contained communications from Plaintiff’s
Facebook page, including “names, pictures and conversations of third parties not included or
involved in any of the litigations between Lopez and Labor Ready.” Complaint, p.4.
Additionally, Plaintiff alleges, Defendants filed a motion in the Summit County case seeking to
declare him a vexatious litigator, and attached similar materials from Plaintiff’s Facebook page.
Plaintiff sets forth the following three Causes of Action: 1) “Violation of Plaintiff’s and
Third Party Reasonable Expectations of Privacy Rights Due Process;” 2) “Privacy Act - Improper
Dissemination & First Amendment Violation;” and, 3) “Vicarious Liability.”
II. LAW AND ANALYSIS
A. Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. §
1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis
in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th
Cir. 2010).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal , 129 S.Ct.
1937, 1949 (2009). The pleading standard Rule 8 announces does not require “detailed factual
allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id. A pleading that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Id. Nor does a complaint suffice if it tenders naked
assertion devoid of further factual enhancement. Id. It must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
plaintiff and without service of process on the defendant, if the court explicitly states that
it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim
for one of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith,
507 F.3d 910, 915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir.
1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
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inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is
not akin to a “probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent
with” a defendant's liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’ ” Id.
Principles requiring generous construction of pro se pleadings are not without limits.
Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). A complaint must contain
either direct or inferential allegations respecting all the material elements of some viable legal
theory to satisfy federal notice pleading requirements. See Schied v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). District courts are not required to conjure up
questions never squarely presented to them or to construct full blown claims from sentence
fragments. Beaudette, 775 F.2d at 1278. To do so would "require ...[the courts] to explore
exhaustively all potential claims of a pro se plaintiff, ... [and] would...transform the district court
from its legitimate advisory role to the improper role of an advocate seeking out the strongest
arguments and most successful strategies for a party." Id.
B. Claims For Relief
1. Constitutional claims
Plaintiff asserts Defendants’ actions violated his Fourth Amendment privacy rights, and
the Fourth Amendment privacy rights of third parties. He also claims that his First Amendment
rights and those of others were violated by the collection and dissemination of the Facebook
communications Defendants revealed in publicly available documents.
Because the Constitution does not itself provide a private cause of action, the Court
liberally construes Plaintiff’s constitutional claims as having been brought pursuant to 42 U.S.C.
§ 1983. In Parratt v. Taylor, 451 U.S. 527, 535 (1981), the Supreme Court stated that "the initial
inquiry [in a section 1983 action] must focus on whether the two essential elements ... are
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present: (1) whether the conduct complained of was committed by a person acting under color of
state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States.
Generally to be considered to have acted “under color of state law,” a person must be a
state or local government official or employee. A private party may be found to have acted under
color of state law to establish the first element of this cause of action only when the party “acted
together with or ... obtained significant aid from state officials” and did so to such a degree that
its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she exercises
powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352,
(1974).
Defendants are private parties. Plaintiff does not allege they received significant aid from
a state government official or agency in the actions of which he complains, nor is there any
suggestion that those actions were an exercise of power traditionally reserved to a state. The
claims based on asserted constitutional violations therefore do not meet the threshold
requirement of Parratt, and must be dismissed.
2. Stored Communications Act; Privacy Act
Plaintiff asserts Defendants violated 18 U.S.C. § 2701, which provides, in relevant part:
[w]hoever (1) intentionally accesses without authorization a facility
through which an electronic communication service is provided;
or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire
or electronic communication while it is in electronic storage in
such system shall be punished as provided in subsection (b) of this
section.
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Although Plaintiff does not indicate with any specificity how he believes Defendants
obtained his Facebook information, the Complaint simply does not contain allegations
reasonably suggesting Defendants engaged in conduct which might have violated the terms of the
above statute. See, e.g., Morgan v. Preston, 2013 WL 5963563, pp. 5-6, No. 3:13 CV 403 (M.D.
Tenn. Nov. 7, 2013) (statute not intended to criminalize accessing personal computers). Thus,
the civil remedies provided at 18 U.S.C. § 2707 for violation of the statute do not provide a basis
for Defendants’ liability.
The other primary statute cited by Plaintiff is 5 U.S.C. § 552a, the Privacy Act. This law
governs agencies of the federal government, and relates to their collection, maintenance, use, and
dissemination of individual information. Obviously, the private Defendants in this case are not
governed by the terms of the statute, and could thus not be liable under the civil remedy
provisions - 5 U.S.C. § 552a (g)(4)(A) and (B) - relied upon by Plaintiff.
III. CONCLUSION
Accordingly, the request to proceed in forma pauperis is granted and this action is
dismissed under 28 U.S.C. § 1915(e). Defendants’ Motions to Dismiss (Doc. ## 3 and 4) are
denied as moot. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: October 28, 2014
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