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Sekiya v. FBI, FACEBOOK

United States District Court, D. New Mexico

July 17, 2017

MIKKO T. SEKIYA, Plaintiff,
v.
FBI, FACEBOOK, JAMES COMEY, MARK ZUCKERBERG, FISA and NSA, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE

         THIS MATTER comes before the Court on pro se Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed May 8, 2017 (“Application”) and on Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed May 8, 2017 (“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.

         Application to Proceed in forma pauperis

         The 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.

         The 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; and (iii) Plaintiff has no assets. 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.

         Dismissal of Proceedings In Forma Pauperis

         The 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).

         Plaintiff asserts invasion of privacy claims against Defendants Mark Zuckerberg and Facebook. Plaintiff alleges Defendants Zuckerberg and Facebook have not shut down Plaintiff's Facebook account which Plaintiff has not been able to access for over three years. Plaintiff also alleges that Defendants James Comey, FISA and NSA have not stopped Zuckerberg and Facebook from showing videos on Plaintiff's Facebook account.

         Plaintiff has previously filed two complaints asserting privacy claims against Zuckerbeg and Facebook based on the same facts. See Sekiya v. Facebook, No. 16cv1368 KG/SCY (D.N.M.); Sekiya v. Zuckerberg, No. 17cv283 JCH/KK (D.N.M.). Judge Gonzales dismissed the complaint against Facebook and the unknown owner of Facebook stating:

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).

Doc. 5 at 3, in Sekiya v. Facebook, No. 16cv1368 KG/SCY. Judge Herrera dismissed the complaint against Zuckerberg for the same reasons. The Court will dismiss the claims against Defendants Zuckerberg and Facebook in this case without prejudice because they are immune to Plaintiff's claims pursuant to the Communication Decency Act as discussed by Judge Gonzales and Judge Herrera. The Court notifies Plaintiff that it may impose filing restrictions on Plaintiff if he continues to file privacy claims against Mark Zuckerberg and Facebook based on the facts alleged in this case and his cases before Judge Gonzales and Judge Herrera.

         The Court will also dismiss the claims against the FBI, James Comey, FISA and NSA without prejudice for failure to state a claim. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). The only allegation against Comey, FISA and NSA is that they did not stop Zuckerberg and Facebook from making videos available on Plaintiff's Facebook account. There are no factual allegations against the FBI.

         Because it has dismissed all of the claims in the Complaint, the Court will ...


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