Louie E. Johnston, Jr. v. NEWSCHANNEL 5 NETWORK, LLC et al
Filing
11
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 1/15/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LOUIS E. JOHNSTON, JR.
v.
NEWSCHANNEL 5 NETWORK,
LLC, et al.
)
)
) NO. 3-15-0859
) JUDGE CAMPBELL
)
)
MEMORANDUM
Pending before the Court is Defendants’ Motion to Dismiss for Improper Service and Failure
to State a Claim (Docket No. 7). For the reasons stated herein, Defendants’ Motion is GRANTED,
and this action is DISMISSED.
This action was brought by Plaintiff Johnston, pro se, alleging violation of his civil rights
by Defendants, including violation of the First Amendment, and also alleging defamation by
Defendants of the Plaintiff.
Plaintiff maintains that he and Defendants had a contract whereby Defendants would
broadcast Plaintiff’s television programs, beginning on August 10, 2014. Plaintiff alleges that
Defendants notified him, on August 7, 2014, that they had made a decision not to broadcast
Plaintiff’s programs in order to avoid divisive topics within their paid programming. Plaintiff claims
that this decision by Defendants violates Plaintiff’s First Amendment rights and defames him. His
Complaint alleges two claims: violation of civil rights and defamation.
MOTIONS TO DISMISS
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss,
a complaint 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 inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a
motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
ANALYSIS
Defendants first argue that Plaintiff’s Complaint should be dismissed for insufficiency of
process and insufficient service of process. In this case, there is no evidence that a Summons was
ever issued, much less properly served upon Defendants. The Complaint states that it was emailed
to Defendants, but email is not one of the authorized methods of service under Federal Rules of Civil
Procedure 4.1 Accordingly, process has not been issued and service has not be properly made.
Plaintiff’s Complaint should be dismissed, without prejudice, for these reasons.
In addition, Plaintiff’s Complaint fails to state a claim for violation of civil rights because
Defendants are not state actors. In order to state a claim for violation of constitutional rights
pursuant to 42 U.S.C. § 1983, a plaintiff must show that: (1) he was deprived of a right secured by
the United States Constitution or laws; and (2) the deprivation was caused by a person acting under
color of state law. Spurlock v. Whitley, 971 F.Supp. 1166, 1175 (M.D. Tenn. 1997).
1
Plaintiff argues that electronic submission is standard practice by attorneys in
federal courts, but electronic filing is not the same as service of process, which must be made in
compliance with Fed. R. Civ. P. 4.
2
Plaintiff’s Complaint does not even allege that Defendants were acting under color of state
law. Purely private conduct by private individuals or corporations is not actionable under 42 U.S.C.
§ 1983. Scarborough v. Brown Group, Inc., 935 F.Supp. 954, 961 (W.D. Tenn. 1995). Defendants
in this action are private individuals and private companies, and they were not acting for the State
in their dealings with Plaintiff. Therefore, they cannot be liable for violation of Plaintiff’s First
Amendment rights. Accordingly, even if process had issued and Defendants had been properly
served, Plaintiff’s civil rights claims should be dismissed with prejudice.
Plaintiff’s defamation claim also fails to state a claim.2 A claim for defamation requires a
false and defamatory statement to be published about the Plaintiff. Service Jewelry Repair, Inc. v.
Cumulus Broadcasting, LLC, 2015 WL 7112334 at * 9 (M.D. Tenn. Nov. 13, 2015) (citing Sullivan
v. Baptist Mem’l Hosp., 995 S.W.2d 569, 597 (Tenn. 1999)). Plaintiff’s Complaint fails to allege
any published statement about Plaintiff, false or otherwise, defamatory or otherwise. Accordingly,
Plaintiff has failed to allege the elements necessary to prove a claim of defamation, and his claim
for defamation should be dismissed with prejudice.
CONCLUSION
For these reasons, Defendants’ Motion to Dismiss (Docket No. 7) is GRANTED, and this
action is DISMISSED.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
2
Plaintiff cites a definition of “defamation” from the federal statute on foreign
judgments. 28 U.S.C. § 4101. Defamation is a state law action, so Tennessee law applies.
3
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