United States District Court, W.D. Virginia, Abingdon Division
Melinda Scott, Pro Se Plaintiff.
P. JONES UNITED STATES DISTRICT JUDGE
plaintiff, proceeding pro se, has filed a Complaint alleging
that the defendant engaged in unlawful cyber stalking,
causing her substantial emotional distress. The magistrate
judge issued a report recommending that the plaintiff’s
Complaint be dismissed for failing to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
12(b)(6). The plaintiff has objected to this recommendation.
For the reasons stated in this Opinion, I will overrule the
plaintiff’s objection and dismiss the Complaint.
Complaint, Melinda Scott, citing the federal interstate
stalking statute, 18 U.S.C. § 2261A, alleges that the
defendant, Andrew Carlson, “has used electronic means
and the internet to harass, intimidate, place under
surveillance, and stalk the Plaintiff while causing
substantial emotional distress.” (Compl. 3, ECF No. 2.)
Scott requests that the defendant “be banned from any
electronic or Internet communication toward the Plaintiff,
damages in the amount of $5, 000 and any other such
relief.” (Id. at 5.)
Order and Report and Recommendation entered on July 5, 2016,
the magistrate judge granted leave to proceed in forma
pauperis, but recommended dismissal of Scott’s action
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state
a claim upon which relief can be granted because Scott was
attempting to pursue a criminal action against the defendant.
In response, Scott filed a letter on July 25, 2016, objecting
to this recommendation of dismissal.
initial matter, federal civil jurisdiction is not proper in
this case. Jurisdiction cannot be based on diversity of
citizenship, because although the record indicates that Scott
and the defendant reside in different states, the amount in
controversy requirement is not satisfied here. Scott requests
damages in the amount of $5, 000 only. Nor can jurisdiction
be based on a federal question. Section 22261A is a federal
statute, but as discussed in more detail below, Scott cannot
properly assert a civil claim under this statute.
plaintiff brought this action seeking civil remedies under 18
U.S.C. § 2261A(2). This statute provides that whoever:
with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or
intimidate another person, uses the mail, any interactive
computer service or electronic communication service or
electronic communication system of interstate commerce, or
any other facility of interstate or foreign commerce to
engage in a course of conduct that - places that person in
reasonable fear of the death of or serious bodily injury to .
. . that person . . . shall be punished as provided in
section 2261(b) of this title.
18 U.S.C. § 2261A(2). The statute contains three
elements. First, the defendant “must possess the intent
to kill, injure, harass, or place under surveillance with
intent to kill, injure, harass, or intimidate, or cause
substantial emotional distress to a person in another
state.” United States v. Shrader, 675 F.3d
300, 309 (4th Cir. 2012). Next, the defendant “must
pursue that intention through a ‘course of conduct,
’ defined as ‘a pattern of conduct composed of 2
or more acts, evidencing a continuity of purpose’ that
makes use of a facility of interstate commerce.”
Id. (quoting 18 U.S.C. §§ 2261A(2),
2266(2)). Finally, the defendant’s conduct “must
in fact cause substantial emotional distress to the intended
victim or place that person in reasonable fear of the death
of, or serious bodily injury to any of the persons
includes very few factual allegations in her Complaint, so it
is unclear from the record whether she could set forth
sufficient evidence to satisfy these elements. However, even
assuming that she could, 18 U.S.C. § 2261A does not
provide for a private civil right of action. See, e.g.,
Fox v. Tippetts, No. 2:09 CV 00485, 2009 WL 3790173, at
*4 (W.D. La. Nov. 10, 2009); Kruska v. Perverted
Justice Found., Inc., No. CV 08-0054-PHX-SMM, 2009
WL 321146, at *4 (D. Ariz. Feb. 6, 2009); Tomel v.
Ross, No. 09-00489-SOM-LEK, 2009 WL 3824742, at *5 (D.
Haw. Nov. 16, 2009).
objects to the recommended dismissal of her claim on the
ground that she has previously sought assistance from local
law enforcement, “who have done nothing to help . . .
in order to pursue the case as a Criminal offense.”
(ECF No. 6.) However, as previously discussed, the statute
under which Scott has filed suit is a federal criminal
statute. Therefore, the United States Attorney’s Office
would be the appropriate agency from which Scott can seek
also objects to the recommended dismissal of her action by
stating, “In Stinson v. Slaughter, a U.S. Federal
District court in Portland, Maine heard the Plaintiff’s
case against a Cyber Stalker as a Civil Suit for
damages.” (ECF No. 6.) However, the case Scott is
apparently referencing was a civil action filed in the
Superior Court in Cumberland County, Maine - a state court -
in 1993. The plaintiff in that case was a victim of stalking
and filed a civil lawsuit against the defendant alleging
claims of intentional infliction of emotional distress and
invasion of privacy. A jury found in favor of the plaintiff
and awarded compensatory and punitive damages. Royal Ford,
Jury Decision Expands Options for Harassed Women,
Boston Globe (Mar. 28, 1995),
reliance on this case is misguided because it was a lawsuit
filed in state court alleging causes of action under
state law. Here, Scott has filed her action in
federal court under a federal criminal statute. Scott, as a
private citizen, cannot bring a lawsuit under this federal
criminal statute. She might, however, be able to bring a
civil lawsuit in state court, alleging a state cause of
action. In the alternative, as discussed above, Scott may
choose to seek the help of the United States Attorney’s
Scott’s Complaint will be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(e)(2) for failure to ...