1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNELL BLEDSOE, No. 2:22–cv–0394–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS AND ORDER

13 v. (ECF Nos. 1, 2) 14 MARK ZUCKERBERG; FACEBOOK,

15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Under the IFP statute, the court must screen the complaint and dismiss any claims that are 21 “frivolous or malicious,” fail to state a claim on which relief may be granted, or seek monetary 22 relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the court has an 23 independent duty to ensure it has subject matter jurisdiction in the case. See United Investors 24 Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 25 /// 26 /// 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Because the complaint fails to state a claim and its defects cannot be cured through 2 amendment, the court recommends that the action be dismissed, and that plaintiff’s application to 3 proceed in forma pauperis be denied as moot. 4 Legal Standards 5 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7 6 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 7 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 8 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 9 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 10 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 11 Rule 8(a)2 requires that a pleading be “(1) a short and plain statement of the grounds for 12 the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader 13 is entitled to relief; and (3) a demand for the relief sought, which may include relief in the 14 alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule 15 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) 16 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 17 litigation on the merits of a claim.”). 18 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 19 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a 20 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 21 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 22 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 23 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 24 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 26 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 27

28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 2 pleads factual content that allows the court to draw the reasonable inference that the defendant is 3 liable for the misconduct alleged.” Id. 4 When considering whether a complaint states a claim upon which relief can be granted, 5 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 6 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 7 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 8 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 9 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 10 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 11 Analysis 12 Plaintiff’s complaint should be dismissed because it fails to state a claim for which relief 13 can be granted. See 28 U.S.C. § 1915(e)(2). This is at least the second time plaintiff has sued 14 Facebook and its CEO, Mark Zuckerberg, in this court regarding the alleged deletion of plaintiff’s 15 Facebook posts. See Bledsoe v. Facebook, No. 2:18-CV-2756-JAM-EFB-PS, 2020 WL 3642164 16 (E.D. Cal. July 6, 2020), report and recommendation adopted, 2020 WL 4605124 (E.D. Cal. 17 Aug. 11, 2020). The prior suit, which asserted breach-of-contract and RICO claims based on the 18 supposed hacking of plaintiff’s Facebook account by someone in Russia, was dismissed for 19 failure to state a claim and failure to establish the court’s subject matter jurisdiction. Id. at *2. 20 This time, plaintiff is suing Facebook and Zuckerberg for themselves “hack[ing]” 21 plaintiff’s Facebook account and regularly deleting the religious photos, videos, and messages 22 plaintiff posts—going back to 2010. (ECF No. 1 at 6-18.) Plaintiff asserts federal question 23 jurisdiction based on the “Civil Rights Act” prohibition of religious discrimination under the First 24 Amendment. (Id. at 3-4.) He also suggests that defendants’ alleged conduct amounts to a federal 25 criminal offense of internet stalking. (Id. at 5.) Plaintiff seeks $100 million in damages and an 26 injunction to stop defendants from deleting his religious posts. (Id. at 5, 18.) 27 /// 28 /// 1 As plaintiff was advised in his prior suit, a federal district court is a court of limited 2 jurisdiction. It only has jurisdiction over a civil suit when: (1) a federal question is presented in 3 an action “arising under the Constitution, laws, or treaties of the United States” or (2) there is 4 complete diversity of citizenship across the parties and the amount in controversy exceeds 5 $75,000. See 28 U.S.C. §§ 1331, 1332(a). The court concludes that plaintiff fails to state a 6 federal cause of action, and that the court lacks diversity jurisdiction over any state-law claims. 7 1. Failure to State a Viable Federal Cause of Action 8 The court understands plaintiff to be asserting a single cause of action under 42 U.S.C. 9 § 1983 for violation of his First Amendment religious exercise and free speech rights. 10 Section 1983 “creates a private right of action against individuals who, acting under color of state 11 law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 12 (9th Cir. 2001). Section 1983 is the proper vehicle for First Amendment claims like those 13 asserted here; however, plaintiff does not name any defendant who can be sued under this statute. 14 To state a claim under section 1983, a plaintiff must allege (1) that a right secured by the 15 Constitution or laws of the United States was violated, and (2) that the alleged violation was 16 committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 17 (1988). While plaintiff asserts a violation of his constitutional First Amendment rights, neither 18 defendant Zuckerberg nor Facebook is a state actor. 19 Conduct by private individuals or entities is generally not actionable under section 1983. 20 See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual generally does not act under 21 color of state law). Conduct by private individuals or entities is only actionable under 22 section 1983 if there is “such a close nexus between the State and the challenged action that 23 seemingly private behavior may be fairly treated as that of the State itself.” Brentwood Academy 24 v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (cleaned up). Plaintiff’s 25 allegations against Zuckerberg, a private (if well known) citizen, and Facebook, a for-profit 26 corporation, do not in any way suggest that these actors’ alleged deletion of plaintiffs’ posts on 27 their platform was conduct by or for a state government. See Franklin v. Fox, 312 F.3d 423, 445 28 (9th Cir. 2002) (outlining four potential circumstances in which private action can amount to state 1 action for purposes of § 1983). Accordingly, plaintiff does not and cannot make out a 2 section 1983 claim against defendants. 3 The only other federal claim the complaint suggests is that plaintiff wishes to hold 4 defendants liable for supposed federal criminal offenses. (See ECF No. 1 at 5.) However, 5 plaintiff, as a private citizen, has no authority to bring a civil claim under criminal statutes. See 6 Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for 7 violation of criminal statutes). 8 Thus, the complaint fails to state any viable federal cause of action. 9 2. No Diversity or Supplemental Jurisdiction over any State Law Claims 10 The court sees no additional state-law cause of action in the complaint. However, to the 11 extent plaintiff seeks to assert a state-law claim, he cannot do so in federal court because neither 12 diversity nor supplemental jurisdiction exists for this case. 13 To invoke the court’s diversity jurisdiction, a plaintiff must specifically allege the diverse 14 citizenship of all parties, and that the matter in controversy exceeds $75,000. 28 U.S.C. 15 § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). 16 According to the complaint, plaintiff resides in California, as does defendant Zuckerberg; and 17 plaintiff gives a California address for defendant Facebook, which courts frequently find to be a 18 citizen of California. (ECF No. 1 at 2, 4-6.) See, e.g., Dennis v. Zuckerberg, 2017 WL 3873761, 19 at *1 n.1 (N.D. Ohio Sept. 5, 2017) (“Facebook is a Delaware corporation with its principle place 20 of business in California, and Mr. Zuckerberg is a citizen of California.”). Because plaintiff 21 shares a common state of citizenship with defendants, the court would lack diversity jurisdiction 22 over any state-law claim. 23 Finally, without a valid federal claim, there also can be no supplemental jurisdiction over 24 any state-law claim plaintiff might attempt to assert in this action. See 28 U.S.C. § 1367(a); 25 Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (supplemental jurisdiction requires 26 that a state law claim share a “common nucleus of operative fact” with federal claims). 27 /// 28 /// 1 No Leave to Amend 2 Ordinarily, the court liberally grants a pro se plaintiff leave to amend. However, because 3 plaintiff would be unable to cure the above-mentioned legal deficiencies through further 4 amendment of the complaint, the court concludes that granting leave to amend would be futile, 5 and recommends that this action be dismissed with prejudice. See Cahill, 80 F.3d at 339; see also 6 Morse v. N. Coast Opportunities, Inc., 1995 WL 779119, at *1–2 (N.D. Cal. Dec. 5, 1995) 7 (discussing Ninth Circuit precedent and holding that claims failing to allege the state action 8 element of § 1983 should be dismissed for failure to state a claim, not lack of subject matter 9 jurisdiction). 10 RECOMMENDATIONS 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. The action be DISMISSED with prejudice for failure to state a claim, pursuant to 13 28 U.S.C. § 1915(e)(2); 14 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 15 and 16 3. The Clerk of Court be directed to CLOSE this case. 17 These findings and recommendations are submitted to the United States District Judge assigned to 18 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 19 being served with these findings and recommendations, plaintiff may file written objections with 20 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 22 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 23 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 /// 25 /// 26 /// 27 /// 28 /// 1 ORDER 2 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 3 || discovery, and motion practice in this action are stayed pending resolution of these findings and 4 | recommendations. Other than objections to the findings and recommendations or non-frivolous 5 || motions for emergency relief, the court will not entertain or respond to any pleadings or motions 6 | until the findings and recommendations are resolved. 7 || Dated: April 27, 2022 Foci) Aharon 9 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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