Agba v. The Commercial Appeal

Filing 20

ORDER DENYING PLAINTIFF'S OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 17 13 . Signed by Judge James D. Todd on 8/18/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ONUOHA AGBA,
Plaintiff,
VS.
THE COMMERCIAL APPEAL,
Defendant.

)
)
)
)
)
)
)
)
)

No. 15-2289-JDT-dkv

ORDER DENYING PLAINTIFF’S OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Plaintiff Onuoha Agba, a resident of Memphis, Tennessee, filed a pro se civil
complaint on April 29, 2015, accompanied by a motion to proceed in forma pauperis. (ECF
Nos. 1 & 2.) After the Court issued an order denying leave to proceed in forma pauperis
(ECF No. 5), Plaintiff paid the filing fee on June 10, 2015 (ECF No. 6). Plaintiff alleges that
the Defendant, the Commercial Appeal, violated his rights under the laws of the United
States by knowingly and maliciously publishing false claims about him and using his image
without permission. He alleges the Defendant’s actions constituted discrimination, racism
and defamation. (ECF No. 1 at 1-2.)
Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) on July 9, 2015. (ECF No. 13.) Plaintiff filed a timely response (ECF No. 15), and

Defendant filed a reply on July 23, 2015 (ECF No. 16). On July 30, 2015, United States
Magistrate Judge Diane K. Vescovo issued a Report and Recommendation (“R&R”) in which
she recommended dismissing the complaint sua sponte for lack of subject matter jurisdiction
and/or granting Defendant’s motion to dismiss for failure to state a claim. (ECF No. 17.)
Plaintiff filed timely objections to the R&R on August 13, 2015. (ECF No. 19.)
Magistrate Judge Vescovo first noted that the complaint contains no jurisdictional
allegations and that no federal question is apparent on its face. Although Plaintiff alleges that
Defendant’s actions violated unspecified laws of the United States, such general statements
are an insufficient basis for federal question jurisdiction.1 In his objections to the R&R,
Plaintiff now asserts that the case involves a federal question because the Defendant violated
his civil and constitutional right to “life, liberty and pursuit of happiness.” (ECF No. 19 at
1-2.) However, no such generalized right is found in the Constitution.2 Therefore, Plaintiff’s
complaint fail to allege any basis for this Court’s jurisdiction, and dismissal for lack of
subject matter jurisdiction is appropriate.
Even if the Constitution protected such a non-specific right as that asserted by
Plaintiff, such a claim could not be brought against a private entity such as the Defendant,

1

The Magistrate Judge further noted that Plaintiff alleged both he and the Defendant are
residents of Tennessee (ECF No. 1 at 1); therefore, diversity jurisdiction also does not exist. See
28 U.S.C. § 1332.
2

Plaintiff cites the Ninth Amendment as the source for the statement that “all men are
created equal and are endowed with certain inalienable rights which includes the right to life,
liberty and pursuit of happiness.” However, this is a paraphrase of language from the
Declaration of Independence, not from any part of the Constitution.
2

which does not act under color of federal law, which is necessary for a cause of action under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
or under color of state law, which is necessary for a cause of action under 42 U.S.C. § 1983.
“A § 1983 plaintiff may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d
552, 567 (6th Cir. 1999).
Magistrate Judge Vescovo also found that even if the Court had jurisdiction,
Plaintiff’s written defamation and false light claims are barred by the applicable one-year
statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). Plaintiff did not
identify the alleged defamatory statement in his complaint. However, in the motion to
dismiss, Defendant identified a report first published in its online edition on October 24,
2008, and in the print edition on October 25, 2008. The report concerned criminal charges
that were brought against Plaintiff, and the online edition included his photograph. (ECF
Nos. 13-2, 13-3 & 13-4.) Plaintiff concedes the 2008 report is the publication his claims are
based upon. (ECF No. 15 at 1.)
Defamation actions in Tennessee accrue on the date the alleged defamatory statement
is published. See Applewhite v. Memphis State Univ., 495 S.W. 2d 190, 194–95 (Tenn.
1973). Tennessee courts do not recognize a claim for “continuing defamation.” See Rose
v. Cookeville Reg’l Med. Ctr., No. M2007-02368-COA-R3-CV, 2008 WL 2078056, at *5
(Tenn. Ct. App. May 14, 2008). Furthermore, contrary to Plaintiff’s arguments, “[s]tale
statements are not perpetually actionable under Tennessee defamation law solely because
they continue to be available to the online public.” Clark v. Viacom Int’l, Inc., — F. App’x
3

— , 2015 WL 4098320, at *5 (6th Cir. 2015). In Clark, the Sixth Circuit held that the
Tennessee Supreme Court would apply the “single publication rule” to online speech, id. at
*5-8, and noted that “no other court in the country has failed to extend the single publication
rule to the online domain.” Id. at *7.
[If applied to the internet,] a multiple publication rule would implicate an even
greater potential for endless retriggering of the statute of limitations,
multiplicity of suits and harassment of defendants. Inevitably, there would be
a serious inhibitory effect on the open, pervasive dissemination of information
and ideas over the Internet, which is, of course, its greatest beneficial promise.
Id. (quoting Firth v. State, 775 N.E. 2d 463, 466 (N.Y. 2002) (alteration in Clark). An online
statement also is not “republished” merely because it is continuously available on the
publisher’s publicly accessible website, even if the publisher failed to remove the statement
after receiving notice of its falsity. Id. at *8-10.
Plaintiff’s objections to the Magistrate Judge’s R&R are not well taken and are
DENIED. The R&R is ADOPTED in its entirety, and this case is hereby DISMISSED for
lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3) and
for failure to state a claim pursuant to Rule 12(b)(6).
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of
Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800,
803-04 (6th Cir. 1999). Rule 24(a) provides that if a party seeks pauper status on appeal, he
must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.
4

P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies leave to appeal in forma
pauperis, the party must file a motion to proceed in forma pauperis in the Court of Appeals.
Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks
appellate review of any issue that is not frivolous. Id. The same considerations that lead the
Court to dismiss this case also compel the conclusion that an appeal would not be taken in
good faith. Accordingly, it is CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter by Plaintiff is not taken in good faith. Leave to appeal
in forma pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal,
he must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis and supporting affidavit directly in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

5