1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERALD MANN, Case No. 24-cv-09348-DMR

8 Plaintiff,

ORDER TO SHOW CAUSE RE:

9 v. DISMISSAL

10 META PLATFORMS INC., 11 Defendant.

12 Self-represented Plaintiff Gerald Mann filed a complaint and an application for leave to 13 proceed in forma pauperis (“IFP”). [Docket Nos. 1, 3.] The complaint alleges claims for breach 14 of contract and professional negligence against Defendant Meta Platforms Inc. (“Meta”) related to 15 Mann’s exposure to certain content on Facebook. 16 Mann alleges that, while scrolling on the Facebook App, he “was sent multiple invites to 17 join a Chrystal Meth Club, and a Chrystal Meth Whore Club,” which depicted pictures “of meth 18 pipes and actual methamphetamines bags,” and also included “[e]xtremely disturbing” imagery 19 suggesting “illegal business” having to do with a “shady looking drug dealer/ pimp type figure 20 hiding in the background[.]” [Docket No. 1 (“Compl.”) ¶ 6; see also id. at 5 (“[F]acebook then 21 bagan [sic] sending me invites for meth whore clubs and Chrystal meth clubs.”).] Mann, “a 22 recovered drug addict,” alleges that this “unlawful, immoral, and unethical behavior” is contrary to 23 Meta’s terms of service because Meta “stat[ed] that their product is ‘not to be used for any 24 unlawful purposes, or assist someone else in usinng [sic] their products in such a way, or at the 25 expense of the safety and well being of others or the integrity of the community.’” [Id. ¶ 7.] 26 The court considers Mann’s complaint and IFP application pursuant to 28 U.S.C. 27 § 1915(a). A court may allow a plaintiff to prosecute an action in federal court without 1 to pay such fees or provide such security. See 28 U.S.C. § 1915(a). The court’s grant of a 2 plaintiff’s application to proceed IFP, however, does not mean that a plaintiff may continue to 3 prosecute the complaint. A court is under a continuing duty to dismiss a case filed without the 4 payment of the filing fee whenever it determines that the action “(i) is frivolous or malicious; 5 (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 6 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If the court 7 dismisses a case pursuant to section 1915(e)(2)(B), the plaintiff may still file the same complaint 8 by paying the filing fee. This is because the court’s section 1915(e)(2)(B) dismissal is not on the 9 merits, but rather an exercise of the court’s discretion under the IFP statute. See Denton v. 10 Hernandez, 504 U.S. 25, 32 (1992). 11 Having evaluated Mann’s financial affidavit, the court finds that he has satisfied the 12 economic eligibility requirement of 28 U.S.C. § 1915(a) and grants his application to proceed IFP. 13 Mann’s allegations suggest he is trying to hold Meta liable for exposing him to third-party 14 content published on Facebook. As such, Mann’s claims may well be barred by section 230 of the 15 Communications Decency Act of 1996. Section 230 provides: “No provider or user of an 16 interactive computer service shall be treated as the publisher or speaker of any information 17 provided by another information content provider.” 47 U.S.C. § 230(c)(1). The statute further 18 provides: “No cause of action may be brought and no liability may be imposed under any State or 19 local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). 20 “The purpose of § 230(c) immunity is to spare interactive computer service providers the 21 ‘grim choice’ of becoming fully responsible for third-party content ‘by allowing them to perform 22 some editing on user-generated content without thereby becoming liable for all defamatory or 23 otherwise unlawful messages that they didn’t edit or delete.’” Caraccioli v. Facebook, Inc., 167 F. 24 Supp. 3d 1056, 1065 (N.D. Cal. 2016) (quoting Fair Hous. Council of San Fernando Valley v. 25 Roommates.com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) (en banc)). “In short, § 230 protects 26 apps and websites which receive content posted by third-party users (i.e., Facebook, Instagram, 27 Snapchat, LinkedIn, etc.) from liability for any of the content posted on their services, even if they 1 to be.” Estate of Bride v. Yolo Techs., Inc., 112 F.4th 1168, 1175-76 (9th Cir. 2024). 2 “Broken into elements, § 230(c) will require dismissal of [Mann]’s state law claims if: 3 (1) [Meta] is a provider or user of an interactive computer service, (2) the information for which 4 [Mann] seeks to hold [Meta] liable was information provided by another information content 5 provider, and (3) the complaint seeks to hold [Meta] as the publisher or speaker of that 6 information.” Caraccioli, 167 F. Supp. 3d at 1065 (internal quotation marks and citations 7 omitted). As to the first element, courts regularly find that Meta and Facebook are providers of 8 interactive computer services. See, e.g., Calise v. Meta Platforms, 103 F.4th 732, 738 (9th Cir. 9 2024) (“All agree that Meta is an interactive computer service provider under the statute.”); 10 Caraccioli, 167 F. Supp. 3d at 1065 (collecting cases reflecting same for Facebook). As to the 11 second element, although Mann does not explain who created the offending content, he appears to 12 allege that the meth-related information for which he is trying to hold Meta liable was created by 13 other Facebook users even if it was “sent” to him by Meta/Facebook or otherwise displayed “on 14 [his] personal feed.” [Compl. ¶¶ 6, 7.] 15 For the third element of the section 230 bar, “publication involves reviewing, editing, and 16 deciding whether to publish or to withdraw from publication third-party content.” Barnes v. 17 Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (citing Roommates, 521 F.3d at 1170-71). 18 Because “removing content is something publishers do, [] to impose liability on the basis of such 19 conduct necessarily involves treating the liable party as a publisher of the content it failed to 20 remove.” Id. at 1103 (citation omitted). A court’s “analysis, therefore, ‘asks whether the duty that 21 the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a 22 publisher or speaker. If it does, section 230(c)(1) precludes liability.’” Estate of Bride, 112 F.4th 23 at 1176 (quoting Barnes, 570 F.3d at 1102). 24 In analyzing this duty, a court must consider two questions: “First, what is the ‘right’ from 25 which the duty springs? If it springs from something separate from the defendant’s status as a 26 publisher, such as from an agreement, or from obligations the defendant has in a different 27 capacity, then § 230(c)(1) does not apply.” Calise, 103 F.4th at 742 (citations omitted). “Second, 1 third-party content’—or else face liability—then that too is barred by § 230(c)(1).” Id. (citation 2 omitted). 3 For example, in Barnes, plaintiff sued Yahoo after her ex-boyfriend created profiles using 4 her nude photographs, she complained to Yahoo and requested removal of the material, and Yahoo 5 promised to remove them but did not. See 570 F.3d at 1098-99. The court agreed that section 6 230(c)(1) barred her claim for negligent undertaking but reversed the district court’s dismissal of 7 her claim for promissory estoppel because Yahoo had specifically promised that it would remove 8 the nude photographs, and Barnes relied on this promise to her detriment. See id. at 1107-08. 9 More recently, in Estate of Bride, the court determined that section 230 did not bar plaintiffs’ 10 misrepresentation claims seeking enforcement of a promise by a defendant that “repeatedly 11 informed users that it would unmask and ban users who violated the terms of service” but “never 12 did so, and may have never intended to[.]” 112 F.4th at 1179. The court was careful to note that 13 its decision did not “make all violations of [internet companies’] own terms of service into 14 actionable claims.” 112 F.4th at 1182. But the court was clear that “[s]ection 230 prohibits 15 holding companies responsible for moderating or failing to moderate content. It does not 16 immunize them from breaking their promises.” Id. 17 Here, Mann alleges that Meta “stat[ed] that their product is ‘not to be used for any 18 unlawful purposes, or assist someone else in usinng [sic] their products in such a way, or at the 19 expense of the safety and well being of others or the integrity of the community.’” [Compl. ¶ 7.] 20 Even assuming this language came from Meta’s terms of service, it is not a “promise” by Meta to 21 take any particular action. Indeed, the language that Facebook “is not to be used for any unlawful 22 purposes” suggests that these terms apply to the Facebook users who posted the offending content 23 and was not a promise made to Mann at all. Unless Mann can point to specific promises in the 24 terms of service or elsewhere, establishing a contractual or legal duty, Meta’s failure to remove 25 meth-related third-party content arises from Meta’s status as a publisher and would require Meta 26 to monitor (and more effectively remove) such content. This theory of liability is barred by 27 section 230. See Calise, 103 F.4th at 742 (citations omitted). 1 12, 2025, Mann shall explain in writing why this case should not be dismissed. If Mann fails to 2 || respond by that date, the court may prepare a report and recommendation for a United States 3 district judge and recommend that the case be dismissed. 4 The court refers Plaintiff to the section “Representing Yourself” on the Court’s website, 5 located at https://cand.uscourts.gov/pro-se-litigants/, as well as the Court’s Legal Help Centers for 6 || unrepresented parties. Parties may schedule an appointment by calling 415-782-8982 or emailing 7 || fedpro@sfbar.org. KEE DELS Ky _ ° PF ms ORDERED 9 IT IS SO ORDERED. 2 A ponna M BEY 10 || Dated: April 11, 2025 OS 4

1 DONNA M. RYU Chief Magistrate Judge

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