United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA
K. JOHNSTONE, Magistrate Judge.
Pro se
plaintiff Sam Sloan, a Democratic candidate for the Office of
the President of the United States, has filed a complaint
(doc. no. 1) in this court, asserting that defendants
violated his rights by denying him access to airtime to
broadcast political campaign commercials, and refused to
allow him to participate in televised Democratic candidate
debates. The matter is before the court for preliminary
review to determine whether Sloan has properly invoked the
subject matter jurisdiction of this court.[1] See LR
4.3(d)(3).
Background
The
facts asserted by Sloan are set forth in the district
judge's February 9, 2016, Order (doc. no. 4)
("February 9 Order") denying Sloan's request
for a temporary restraining order. In short, Sloan alleges
that defendant WMUR TV and its parent corporation, defendant
Hearst Media, refused Sloan's request to purchase
television campaign commercials, despite his willingness to
pay for air time at the same rate as the major party
candidates. Further, Sloan alleges that defendant Schultz has
refused to allow him to participate in televised Democratic
candidate debates. Sloan asserts injury to his presidential
campaign as a result of the defendants' actions.
Discussion
I.
Preliminary Review Standard
In
determining whether a pro se pleading states a claim, the
court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content
in the pleading and inferences reasonably drawn therefrom,
taken as true, state a facially plausible claim to relief.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
II. No
Federal Cause of Action Asserted[2]
A. No
State Action
As
stated in the court's February 9 Order, Sloan failed, in
his complaint, to identify the statutes or constitutional
provisions upon which his claims are based. Because the
defendants are private actors, he cannot assert a claim under
42 U.S.C. § 1983, asserting a violation of his constitutional
rights, as such claims are available only as asserted against
state actors. See Ealy v. Buckley, No. 15-cv-373-PB, 2015
U.S. Dist. LEXIS 141798 at *3, 2015 WL 6134188 at *2 (D.N.H.
Sep. 15, 2015), R&R approved by No. 15-cv-00373-PB, 2015 U.S.
Dist. LEXIS 141802, 2015 WL 6134188 (D.N.H. Oct. 19, 2015)
(dismissing complaint seeking to compel New Hampshire
Democratic Party ("NHDP") to allow plaintiff to
speak at Democratic presidential candidate event, in part
because plaintiff could not assert claim for relief against
private party, NHDP, for violation of his federal
constitutional rights). Nothing in the complaint allows the
court to infer an actionable violation of Sloan's
constitutional rights. See Jarvis v. Vill. Gun Shop,
Inc., 805 F.3d 1, 8 (1st Cir. 2015) ("If there is
no state action, the plaintiff's [constitutional] claim
fails."), cert. pet. filed, No. 15-1132 (U.S. Mar. 14,
2016).
B.
Communications Act
To the
extent Sloan seeks to assert a claim alleging that defendants
have violated the Communications Act, 47 U.S.C. § 315, which
requires federally-licensed broadcasters to provide all
candidates running for a public office equal opportunity to
utilize the broadcast station, that statute provides no
private right of action. See Levinson v. N.H. Pub.
Television, No. 11-cv-589-PB, 2012 WL 1148259, at *3-*4
(D.N.H. Mar. 6, 2012) (dismissing action against television
station because 47 U.S.C. § 315 provides no private right of
action to enforce that statute's "equal
opportunities" provision). "The proper course for
raising a claim under section 315 is to file a complaint with
the F[ederal] C[ommunications] C[ommission]." Schneller
v. WCAU Channel 10, 413 F.Appx. 424, 426 (3d Cir. 2011); see
also Rosenberg v. City of Everett, 328 F.3d 12, 16
(1st Cir. 2003). "The Communications Act requires an
application for review to the full [FCC] as a prerequisite to
judicial review of decisions made under delegated
authority.'" Schneller, 413 F.Appx. at 426-27
(citation omitted). There is nothing in the record to
indicate that Sloan sought or obtained review of his claim
with the FCC, and Sloan, therefore, cannot assert a claim
under the Communications Act.
III.
Diversity Jurisdiction
If
Sloan has attempted to invoke this court's diversity
jurisdiction, he has failed to do so. Sloan has not made a
claim for damages or otherwise asserted facts demonstrating
an amount in controversy in excess of $75, 000, which is a
requirement for establishing the court's diversity
jurisdiction. See 28 U.S.C. § 1332(a). Moreover, Sloan ...