United States District Court, D. New Mexico
MIKKO T. SEKIYA, Plaintiff,
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
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
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; 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.
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 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
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.
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.
it has dismissed all of the claims in the Complaint, the
Court will ...