United States District Court, D. New Mexico
January 3, 2017
MIKKO T. SEKIYA, Plaintiff,
FACEBOOK et al., Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT
MATTER comes before the Court on pro se
Plaintiff's Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2, filed December 15,
2016 (“Application”) and on Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1,
filed December 1, 2016
(“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.
to Proceed in forma pauperis
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.
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; (iii) Plaintiff has no
assets; and (iv) Plaintiff has a son and a daughter who rely
on him for support. 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.
of Proceedings In Forma Pauperis
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).
asserts claims against Facebook and the unknown owner of
Facebook based on the following allegations in the Complaint:
Defendant owner of Facebook/unknown . . . is the one who has
not shut my Facebook down. . . . .
The case consist[s] of numerous videos being showed on
Facebook of my day to day life in the rest room, shower, even
having sex etc. Violating my privacy act. . . . .
Three Facebook accounts under my name Mikko Sekiya, that I
can not log into and have not been able to for the last two
years. . . . .
Three Facebook accounts that have been open for two years
with out me ever being able to log on.
Doc. 5 at 2-4. It appears that Plaintiff is alleging that
Defendants are liable for the tort of invasion of privacy by
publishing private facts. See Alvarado v. KOB-TV,
L.L.C., 493 F.3d 1210, 1217-18 (10th Cir. 2007)
(“New Mexico recognizes the tort of invasion of privacy
. . . [via] publication of private facts, ” which is
“disclosure which would be objectionable to a
reasonable person, and a lack of legitimate public interest
in the information”).
Court will dismiss the Complaint without prejudice because
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). It appears from the few factual
allegations in the Complaint that the videos for which
Plaintiff seeks to hold Defendants liable were provided by a
third party user; there are no factual allegations that
Defendants created the videos. The Complaint seeks to hold
Defendants liable for the tort of invasion of privacy for
publishing the videos. The Court will, therefore, dismiss the
Complaint pursuant to the Communication Decency Act. See
Klayman v. Zuckerberg, 753 F.3d 1357-58 (dismissing
negligence and assault claims pursuant to the Communications
Decency Act because “(i) Facebook is a provider or user
of an interactive computer service, (ii) the information for
which [plaintiff] seeks to hold Facebook liable was
information provided by another information content provider,
and (iii) the complaint seeks to hold Facebook liable as the
publisher or speaker of that information”); 47 U.S.C.
§ 230(e)(3) (“No cause of action may be brought
and no liability may be imposed under any State or local law
that is inconsistent with this section”).
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
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).
Court will not order service of Summons and Complaint on
Defendants at this time.
Court will order service if Plaintiff timely files an amended
complaint which states a claim, and which includes the
address of every defendant named in the amended complaint.
ORDERED that Plaintiffs Application to Proceed in District
Court Without Prepaying Fees or Costs, Doc. 2, filed December
15, 2016, is GRANTED.
ALSO ORDERED that Plaintiffs Civil Rights Complaint Pursuant
to 42 U.S.C. § 1983, Doc. 1, filed December 15, 2016,
and Doc. 5, filed December 16, 2016, is DISMISSED without
prejudice. Plaintiff may file an amended complaint within 21
days of entry of this Order.
 The Complaint includes the
Appendix/Supplement, Doc. 5, filed December 16, 2016.