SESCEY v. YOUTUBE et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 11/18/21. 11/18/21 ENTERED & E-MAILED PRO SE PLAINTIFF. (fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NENNET AKAY SESCEY,
YOUTUBE, et al.,
November 18, 2021
Pro se Plaintiff Nennet Akay Sescey1 filed this civil rights action against
YouTube and YouTube’s “Legal Support” department, which she claims is connected to
“Google LLC.” (ECF 2 at 2-3.)2 For the following reasons, Sescey’s federal claims are
dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and her state law claims are dismissed for lack of jurisdiction without
prejudice to her right to proceed in the appropriate state court.
Sescey alleges her YouTube “account was hacked,” she is “being harassed,” and
risk.” (Id. at 3.) She asserts that since July of 2020, she has “documented being
harassed and stalked” and she has “lots of footage [(]audio and video[)] of [herself] and
Because it appears Sescey is unable to afford to pay the filing fee, the Court will grant her Motion
to Proceed In Forma Pauperis. (ECF 7.)
The Court uses the pagination assigned to the Complaint by the CM/ECF docketing system.
The facts set forth in this Memorandum are taken from Sescey’s Complaint (ECF 2).
[her] children being harassed through [her] YouTube account.” (Id. at 4.) Sescey
claims “most of the harassment is coming from” her appearance in an adult magazine
in 2002. (Id.) She alleges she “made tons of complaints through the [Better Business
Bureau] and sent over tons of emails leading up to” the filing of this lawsuit. (Id.)
Sescey also claims her “mother[’s] nephew illegally listed [her] account as a Narc
Officer account” and informed YouTube that Sescey “was crazy with a mental
problem[,]” which Sescey believes put herself and her children “at risk.” (Id.) Sescey
seeks “full compensation” for herself and her children so that they can relocate. (Id.)
Because Sescey is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii)
requires the Court to dismiss her Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same
standard applicable to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires
the Court to determine whether the complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). “At this early stage of the
litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,’
‘draw all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that]
complaint, liberally construed, . . . contains facts sufficient to state a plausible  claim.’”
Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792
F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556
U.S. at 678. As Sescey is proceeding pro se, the Court construes her allegations
liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).
Sescey’s allegations do not rely on a specific statute, she indicated on her form
Complaint that the basis for the Court’s jurisdiction is “Federal Questions.” (ECF 2 at
3.) Construing her Complaint liberally, Sescey asserts an unspecified federal civil
rights claim against YouTube related to the alleged hacking of her account and the
resulting harassment to which she was allegedly subjected. She also asserts a variety
of Pennsylvania state law claims.
To state a claim for a violation of her constitutional rights under 42 U.S.C.
§ 19834, Sescey “must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed
by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Whether a defendant is acting under color of state law — i.e., whether the defendant is
a state actor — depends on whether there is “such a ‘close nexus between the State and
the challenged action’ that seemingly private behavior ‘may be fairly treated as that of
the State itself.’” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations
omitted). To act under color of state law a defendant must have exercised power
possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law. Harvey v. Plains Twp. Police Dep’t, 635 F.3d
606, 609 (3d Cir. 2011).
Even liberally construed, the Court does not understand Sescey’s Complaint to suggest any other
source of authority for the exercise of federal question jurisdiction beyond Section 1983.
Based on the Complaint’s allegations, it appears the named Defendants – a
private social media company and its legal department – are not subject to liability
under Section 1983. Cf. Prager Univ. v. Google LLC, 951 F.3d 991, 999 (9th Cir. 2020)
(affirming the dismissal of a First Amendment claim because YouTube was a private
entity and not a state actor); see also Rutenburg v. Twitter, Inc., No. 21-0548, 2021 WL
1338958, at *2 (N.D. Cal. Apr. 9, 2021) (“Federal courts have uniformly rejected
attempts to treat similar social media companies [such as Twitter, Facebook, YouTube,
and Google] as state actors under Section 1983.”) (collecting cases). Sescey does not
allege Defendants are state actors or that they had any connection to a state, county, or
local governmental entity. Her Complaint does not allege any facts to show a “close
nexus” between the private behavior of YouTube and its legal department and the state
itself such that the challenged action here can fairly be treated as an action of the state.
Leshko, 423 F.3d at 339. None of Sescey’s allegations support an inference that
Defendants are anything other than a privately-run social media company and its
internal legal department.
Because Sescey’s Complaint fails to allege a plausible § 1983 claim against
YouTube and its legal department, her federal claims are dismissed pursuant to Section
1915(e)(2)(B)(ii) for failure to state a claim. Because any amendment would be futile,
Sescey will not be granted leave to amend her federal claims. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Having dismissed Sescey’s federal claims, the Court declines to exercise
supplemental jurisdiction over any state law claims pursuant to 28 U.S.C. § 1367.
The only independent basis for jurisdiction over such claims is 28 U.S.C. § 1332,
which provides the Court with subject-matter jurisdiction when “the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C. § 1332(a). Section 1332(a) requires
“‘complete diversity between all plaintiffs and all defendants,’ even though only
minimal diversity is constitutionally required. This means that, unless there is some
other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any
defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015)
(quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg.
Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). An
individual is a citizen of the state where she is domiciled, meaning the state where she
is physically present and intends to remain. See Washington v. Hovensa LLC, 652 F.3d
340, 344 (3d Cir. 2011). “A corporation is a citizen both of the state where it is
incorporated and of the state where it has its principal place of business. . . . And a
partnership, as an unincorporated entity, takes on the citizenship of each of its
partners.” Zambelli, 592 F.3d at 419 (citations omitted). “The burden of establishing
federal jurisdiction rests with the party asserting its existence.” Lincoln Ben. Life Co.,
800 F.3d at 105 (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006)).
Sescey does not adequately allege the citizenship of any party.5 With respect to
her own citizenship, Sescey only alleges she is a “US born citizen” (see ECF 2 at 4), but
she does not set forth the state where she is domiciled as is required for diversity
Sescey provided a Pennsylvania address as her address of record, but that is not a sufficient
allegation to allow the Court to determine her citizenship for purposes of diversity. Sescey provided
a California address for YouTube and its legal department, but again this is not a sufficient
allegation related to Defendants’ citizenship.
jurisdiction. With respect to YouTube and its legal department, she alleges only that
“[t]his is a company” (see id.) but does not assert any facts related to YouTube’s
business structure (e.g., corporation, partnership, limited liability company, etc.) or its
actual citizenship. Sescey has not met her burden of demonstrating the Court’s subject
matter jurisdiction over any purported state law claim and they are dismissed without
prejudice to her right to assert them in an appropriate state court. See Lincoln Ben.
Life Co., 800 F.3d at 105.
An appropriate Order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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