The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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THOMAS BYRD, Case No. 21-00571 EJD (PR)
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Plaintiff,
12 ORDER OF DISMISSAL; DENYING
v.
MOTION AS MOOT
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14 GOOGLE, et al.,
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Defendants.
(Docket No. 19)
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18 Plaintiff, a prisoner in the custody of the Illinois Department of Corrections, filed
19 the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against “Google
20 Headquarters C.E.O. [and] all media outlets own[ed] by Google.” Dkt. No. 20. Plaintiff
21 has been granted leave to proceed in forma pauperis. Dkt. No. 15.
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23 DISCUSSION
24 A. Standard of Review
25 A federal court must conduct a preliminary screening in any case in which a
26 prisoner seeks redress from a governmental entity or officer or employee of a
27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
2 upon which relief may be granted or seek monetary relief from a defendant who is immune
3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally
4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
6 elements: (1) that a right secured by the Constitution or laws of the United States was
7 violated, and (2) that the alleged violation was committed by a person acting under the
8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
9 B. Plaintiff’s Claims
10 Plaintiff filed a complaint initiating this action which was deficient because it was
11 not signed. Dkt. No. 1. On April 22, 2021, Plaintiff filed a signed complaint that contains
12 all the allegations from the original complaint. Dkt. No. 20. Accordingly, the Court
13 deems this latest filing as the operative complaint in this matter.1
14 Plaintiff is suing Google for publishing an article containing allegedly false facts
15 regarding his criminal charge for home invasion and aggravated kidnapping, and also for
16 posting a picture of him with “sexual assault across the [whole] picture.” Dkt. No. 20 at 4.
17 Plaintiff claims Google used this information to “get likes and downloads.” Id. Plaintiff
18 also claims Google used his face with a picture of Batman and Robin, incorrectly stating
19 that Plaintiff had told the police, “I’m Batman.” Id. Plaintiff claims that the article caused
20 verbal harassment by inmates and officers, resulting in physical and psychological harm.
21 Id. Plaintiff is seeking damages for defamation of character. Id.
22 Plaintiff fails to state a claim because his allegations fail to satisfy the two essential
23 elements for a section 1983 claim: (1) that a right secured by the Constitution or federal
24 law was violated, and (2) the alleged violation was committed by a person acting under
25 color of state law. See West v. Atkins, 487 U.S. at 48. Defamation is a tort that is only
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1 || actionable under state law, and Google is not a state actor. Even if the allegations were
2 || true, Google’s actions amount to nothing more than tortious conduct which is actionable
3 || under state law, not section 1983. There being no independent basis for federal
4 || jurisdiction, Plaintiff must pursue this claim in state court.
5 Plaintiff's “motion for extension of time to sign and enter objection to Google
6 || Headquarters not being held in default” is DENIED as moot by this order. Dkt. No. 19.
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8 CONCLUSION
9 For the foregoing reasons, the action is DISMISSED for failure to state a claim for
10 || relief. Plaintiff must pursue the claims herein in the appropriate state court.
11 The Clerk shall terminate all pending motions, including Docket No. 19, and close
2 the file.
13 IT ISSO ORDERED.
a Dated: 4/29/2021
i EDWARD J. DAVILA
United States District Judge
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Order of Dismissal; Deny M. as Moot
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