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Scott v. Carlson

United States District Court, W.D. Virginia, Big Stone Gap Division

December 11, 2018

MELINDA SCOTT, Plaintiff,
v.
ANDREW CARLSON, ET AL., Defendants.

          OPINION

          James P. Jones, United States District Judge

         Pro se litigant Melinda Scott has submitted an application to file a civil action without prepaying fees or costs.[1] In her proposed action based on diversity jurisdiction, Scott brings claims of defamation, publication of private information, and violation of the Fourth Amendment against Andrew Carlson, who allegedly created a website containing statements about Scott; Joshua Moon, who operates an internet forum containing statements about Scott; and Sherod DeGrippo, who owns a "wiki" containing statements about Scott. While I will permit the filing of the action without prepayment of fees and costs, I will dismiss it because Scott's allegations fail to state a claim on which relief may be granted, for the reasons discussed below.

         I.

         Scott's Complaint alleges the following facts:

         In December 2016, Scott discovered a website that Andrew Carlson had created containing a list of men with whom she allegedly had sexual relations. In March 2017, Carlson posted a video on YouTube that contained biographical information about Scott and her children, and allegations and questions about the paternity of her children. In that video and in others, Carlson also made statements "falsely attributing sexual acts to [Scott] which are untrue, including a supposed sexual act with a former (unnamed) landlord," and alleging that Scott has been married more than twice. Compl. ¶ (e). Carlson also created an image depicting Scott's head on a nude body. Scott asserts that Carlson obtained the biographical information about her family from a protective order issued by a Virginia state court.

         Joshua Moon owns Lolcow LLC, a corporation that runs Kiwi Farms, an internet forum. Scott asserts that Moon published on Kiwi Farms biographical information about her and her family, along with statements that she has had "9 husbands by 29," has a list of husbands, has had sexual relations with a former landlord, is a "gigantic whore" and a "kike," and "changes husbands like she changes panties." Compl. ¶ h (xvii). Scott asserts that Moon obtained information about her from Carlson.

         Sherrod DeGrippo owns Encyclopedia Dramatica, a website that its users can collaboratively modify. Scott alleges that DeGrippo published on Encyclopedia Dramatica biographical information about her and her family, along with statements that Scott has had sexual relations with a former landlord, has "four baby daddies," is a "horney Jewess," and is "incestuous." Compl. ¶ (k). Scott alleges that DeGrippo obtained information about her from Carlson and Moon.

         Scott's Complaint asserts claims of defamation, publication of private information, and violation of the Fourth Amendment against Carlson. It also asserts claims of defamation and violation of the Fourth Amendment against both Moon and DeGrippo. Scott seeks an injunction ordering the removal of the statements described above and monetary damages.

         II.

         Federal pleading standards require that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In evaluating a complaint, the court accepts as true all well-pled facts and construes those facts in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A document filed pro se is to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106 (1976), but the "court is not required to recognize 'obscure or extravagant claims defying the most concerted efforts to unravel them, '" Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985)).

         As to Scott's allegation of publication of private information against Carlson, she fails to state a claim on which relief may be granted because New York law contains no such cause of action.[3] "New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within Civil Rights Law §§50 and 51," which "create a cause of action in favor of any person whose name, portrait, or picture is used for advertising purposes or for trade without the plaintiffs consent." Farrow v. Allstate Ins. Co., 862 N.Y.S.2d 92, 93 (N.Y.App.Div. 2008). Scott has not alleged any facts that would support a cause of action under Civil Rights Law §§50 and 51, and thus she fails to state a New York invasion of privacy claim.

         As to Scott's allegations of Fourth Amendment violations against all defendants, she fails to state a claim on which relief may be granted because she has not alleged any governmental intrusion on her privacy. "[T]he Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' That Amendment protects individual privacy against certain kinds of governmental intrusion ....". Katz v. United States, 389 U.S. 347, 350 (1967). Scott's Complaint alleges Fourth Amendment violations solely against private individuals, and thus she fails to state a constitutional invasion of privacy claim.

         Scott's allegations of defamation against all defendants also fail to state claims on which relief may be granted. Her allegations against Moon and DeGrippo fail because the federal Communications Decency Act bars actions "under 'any State or local law that is inconsistent' with the terms of § 230," which establishes a "general rule that providers of interactive computer services are liable only for speech that is properly attributable to them."[4] Nemet Chevrolet, Ltd, 591 F.3d at 254 (quoting 47 U.S.C. § 230(e)(3)). They are not liable for enabling the unlawful content of others to be posted online. Id.

         Scott's allegations of defamation against Moon and DeGrippo do not contain facts sufficient to attribute the statements ...


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