Opinion
CV 02-091-BR.
July 10, 2002
GLENDORA, White Plains, NY, Plaintiff, Pro Se.
VICKI L. SMITH, BONNIE RICHARDSON-KOTT, LANE POWELL SPEARS LUBERSKY LLP, Portland, OR, Attorneys for Defendants Rob Brading and Multnomah Community TV.
CALVIN HYER, JR., SPANN, HYER, HOLLOWWA ARTLEY, Albuquerque, NM, Attorneys for Defendants Hyer and Spann, Hyer, Hollowwa Artley.
OPINION AND ORDER
This matter comes before the Court on a Motion to Dismiss (#4) filed by Defendants Rob Brading and Multnomah Community TV (MCTV). Plaintiff Glendora, appearing pro se, filed a Notice of Cross-Motion by Glendora to Deny Defective Motion to Dismiss to Grant Default Judgment Against Grace, Hyer, Spann, to Grant All Relief Sought in Complaint and to Issue Sanctions (#10).
Plaintiff brings this action against Defendants alleging violations of the Cable Communications Policy Act of 1984, 47 U.S.C. § 521, et seq, and civil rights claims under 42 U.S.C. § 1983 and 1985. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 1343(3).
For the reasons that follow, the Court GRANTS Defendants' Motion and DENIES Plaintiff's "Cross-Motions."
STANDARDS
On a motion to dismiss under Fed.R.Civ.P. 12(b), all allegations in the complaint are considered true and are construed in the plaintiff's favor. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 528 U.S. 1005 (1999). When the plaintiff appears pro se, the court "must construe liberally [the plaintiff's] inartful pleading." Ortez v. Wash. County, 88 F.3d 804, 807 (9th Cir. 1996). A court should not dismiss a complaint, thus depriving the plaintiff of an opportunity to establish his or her claims at trial "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). When a plaintiff appears pro se, particularly in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989) (citations omitted).
DEFENDANTS' MOTION TO DISMISS
Plaintiff produces a cable television program called "A Chat with Glendora." Plaintiff alleges Defendant MCTV broadcast "A Chat with Glendora" every week for some months, but stopped broadcasting the program at some point because Plaintiff did not have a local sponsor as required under MCTV's policy. Plaintiff alleges Defendants violated 47 U.S.C. § 531(e) when they discontinued the broadcast of her program. In addition, Plaintiff contends Defendants violated unspecified civil rights.
Plaintiff makes no specific allegations against Defendant Brading other than to allege she was unable to speak with him on the telephone to discuss her claims.
I. Plaintiff Fails to State a Claim for Violation of § 531(e).
47 U.S.C. § 531(e) provides in pertinent part:
[A] cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity.
To state a claim for violation of § 531(e), Plaintiff must allege facts that demonstrate Defendants exercised editorial control over the content of Plaintiff's program by applying the local sponsor requirement. Plaintiff's allegation that Defendants exercised editorial control is a legal conclusion unsupported by any facts and does not suffice to state a claim. See Kennedy v. H M Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976) (a pleading is not sufficient to state a claim if the allegations are mere conclusions). Although Plaintiff alleges Defendants impermissibly exercised editorial control when they discontinued broadcasting her program, she does not allege Defendants' decision to discontinue broadcasting her program was based on the content of the program. Plaintiff also does not allege any facts to support her allegation that Defendants' local sponsor requirement was improper. Specifically, Plaintiff does not reveal the substance of MCTV's policy or how its application to her was improper or illegal.
Accordingly, Plaintiff's Complaint fails to state a claim for violation of § 531(e).
Defendants assert Plaintiff will not be able to state a claim for violation of § 531(e) based on MCTV's local sponsor policy because the policy is content-neutral. Defendants apparently contend, therefore, that Plaintiff's Complaint should be dismissed with prejudice. The Court, however, can make no finding concerning the substance of MCTV's policy based on this record. Neither party provides any information concerning the content of Plaintiff's program or the substance of MCTV's local sponsor policy.
In addition, Defendants offer no analysis whatever of Plaintiff's allegations or the applicable law. Defendants merely incorporate without discussion the analysis of the District Court of the Eastern District of Michigan in an unpublished opinion issued in litigation also involving Glendora.
The Court questions Defendants' reliance on an unpublished opinion and directs Defendants to offer authority for such reliance if they wish to do so in the future. See, e.g., 9th Cir.R. 36-3.
Although a great deal can be learned about Plaintiff from her abundant litigation in other courts, this Court must resolve Defendants' current motion based on Plaintiff's Complaint, accept the allegations of that Complaint as true, and view those allegations in the light most favorable to Plaintiff. Applying this standard, the Court is unable to conclude it is "beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Navarro, 250 F.3d at 732. The Court, therefore, grants Plaintiff leave to amend her Complaint to cure the deficiencies of her claim brought under 47 U.S.C. § 531(e).
II. Plaintiff Fails to State a Claim for Violation of §§ 1983 and 1985.
Defendants also assert Plaintiff fails to state a civil rights claim for violation of either § 1983 or § 1985 because the application of MCTV's local sponsor requirement does not violate any of Plaintiff's civil rights.
A. 42 U.S.C. § 1983.
To state a claim under § 1983, a plaintiff must allege facts to show a person acting under color of state law deprived plaintiff of a right, privilege, or immunity secured by the Constitution or federal law. L.W. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). Plaintiff does not allege Defendants deprived her of a federally-protected right nor does she allege any facts that demonstrate Defendants acted under color of state law.
If Plaintiff chooses to pursue a claim under § 1983, she must set forth facts based on federal authority that demonstrate a specifically-named Defendant was acting under color of state law. It is not sufficient to allege only the conclusion that a defendant acted under color of state law. If Plaintiff satisfies this threshold requirement, she must then set forth facts based on federal authority that show the specifically-named Defendant, while acting under color of state law, deprived Plaintiff of a right, privilege, or immunity under the United States Constitution or federal law. There is insufficient information in the record for the Court to conclude that it is beyond doubt Plaintiff could state a claim for violation of § 1983. The Court, therefore, grants Plaintiff leave to amend her Complaint to cure the deficiencies of her § 1983 claim.
B. 42 U.S.C. § 1985.
Section 1985 prohibits conspiracies to prevent a federal officer from performing her duties, to obstruct justice, or to deprive a person or class of equal protection, equal privileges and immunities, or the right to vote. Although it is not clear from the Complaint, the Court construes Plaintiff's claim as arising under 42 U.S.C. § 1985(3), which prohibits conspiracies to deprive a person or class of equal protection of the laws or of equal privileges and immunities under the laws.
To bring a cause of action successfully under § 1985(3), a plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828-29 (1983). Further, the second of these four elements requires that in addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.' Griffith v. Breckenridge, 403 U.S. 88, 102(1971).
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)
Plaintiff has not alleged Defendants conspired to deprive her of a legally-protected right nor has she alleged Defendants acted with "invidiously discriminatory animus" based on Plaintiff's race or other protected status. Plaintiff can state a claim under § 1985(3) only if she is a member of a class to which the protections of that statute apply. Plaintiff must allege Defendants conspired to deprive her of the equal protection of the laws or of equal privileges and immunities under the laws because of her race. Section 1985(3) "extends beyond race only when the class in question can show that there has been a governmental determination that its members require and warrant special federal assistance in protecting their civil rights." Sever, 978 F.2d at 1536.
The Court is unable to conclude it is beyond doubt Plaintiff could state a claim under § 1985(3) due to the absence of any facts relevant to such a claim. The Court, therefore, grants Plaintiff leave to amend her Complaint to cure the deficiencies of her claim under § 1985(3).
PLAINTIFF'S MOTIONS
The Court construes Plaintiff's response to Defendants' Motion to Dismiss to include the following motions: 1) a Motion for Default Judgment against Defendants Judy Grace, Calvin Hyer, Jr., and Spann, Hyer, Hollowwa Artley; 2) a Motion for Sanctions; and 3) a Motion for Judgment on the Pleadings.
I. Plaintiff's Motion for Default Judgment.
Plaintiff contends Defendant Judy Grace is in default for failure to appear. Plaintiff, however, has not established Defendant Grace was served with a summons and a copy of the Complaint pursuant to Fed.R.Civ.P. 4. An unexecuted return of service was filed with the Court on March 20, 2002. Plaintiff's motion for a default judgment against Defendant Grace, therefore, is denied.
Plaintiff also seeks a default judgment against Defendants Calvin Hyer, Jr., and the law firm of Spann, Hyer, Hollowwa Atley. Again, Plaintiff has not established these Defendants were served with a summons and a copy of the Complaint. Moreover, Defendants Hyer and the law firm filed a special appearance challenging this Court's personal jurisdiction over them. These Defendants, therefore, are not in default. Accordingly, the Court denies Plaintiff's Motion for a default judgment against these Defendants.
II. Plaintiff's Motion for Sanctions.
Plaintiff has not provided any factual or legal basis for the imposition of sanctions pursuant to Fed.R.Civ.P. 11. The Court, therefore, denies Plaintiff's Motion for Sanctions.
Plaintiff moves for "Rule 13 FRCP sanctions." Fed.R.Civ.P. 13 does not provide for sanctions. The Court, therefore, construes Plaintiff's motion as seeking sanctions under Fed.R.Civ.P. 11(c).
III. Plaintiff's Motion for Judgment on the Pleadings.
Plaintiff moves that "all of the relief stated in her Complaint be granted in its entirety." The Court construes this as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff, however, has not provided a factual or legal basis to establish she is entitled to prevail on her claims as a matter of law. The Court, therefore, denies Plaintiff's Motion for Judgment on the Pleadings.
CONCLUSION
For the above reasons, the Motion to Dismiss filed by Defendants Brading and MCTV (#4) is DENIED. The Court grants Plaintiff leave to amend her Complaint by August 10, 2002, to cure the deficiencies in her claims brought under 47 U.S.C. § 531(e) and 42 U.S.C. § 1983 and 1985.
Plaintiff's Motions for Default Judgment, Sanctions, and Judgment on the Pleadings (#10) are DENIED.
IT IS SO ORDERED.