United States District Court, D. New Hampshire
Pagan, pro se.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court is the complaint (Doc. No. 1) filed by the in forma
pauperis plaintiff, Miguel Pagan. The complaint is before the
court for preliminary review, pursuant to LR 4.3(d)(2) and 28
U.S.C. § 1915(e)(2).
plaintiff is appearing pro se, the court construes his
pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). The court may dismiss the complaint, or
any part or amendment to the complaint, if it “fails to
state a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2);
see also LR 4.3(d)(2). To determine if the pleading states a
claim, the court first disregards plaintiff's legal
conclusions and then considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken
as true, state a 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)).
complaint names “Google Corporation” as the
defendant and asserts that Google defamed him by publishing
false information regarding his criminal record.
Specifically, he states that Google published false
information labeling him as a convicted sex offender for
three counts of rape in New Hampshire. Pagan asserts that the
information is incorrect, and he attributes the error to a
communication problem in the New Hampshire courts.
further claims that Google has violated his constitutional
rights. Pagan, who is presently incarcerated, states that
being labeled falsely as a sex offender could deprive him of
the ability to get housing and a job and denies him equal
is afforded immunity under the Communications Decency Act of
1996 (“CDA”), 47 U.S.C. § 230, for the
publication of defamatory content prepared or posted by
others. O'Kroley v. Fastcase, Inc., 831 F.3d
352, 354-55 (6th Cir. 2016). The CDA provides that
“[n]o cause of action may be brought” and
“no liability may be imposed under any State or local
law, ” 47 U.S.C. § 230(e)(3), for any claim that
would treat a provider of an “interactive computer
service” as the “publisher or speaker of any
information provided” by someone else, 47 U.S.C. §
230(c)(1). See O'Kroley, 831 F.3d at 354-55
(claims against Google for third party content properly
dismissed under CDA); Klayman v. Zuckerberg, 753
F.3d 1354, 1357 (D.C. Cir. 2014) (claims against Facebook
properly dismissed under CDA).
Sixth Circuit, in O'Kroley, 831 F.3d at 354-55, concluded
that the CDA immunizes Google from defamation claims arising
from the publication of false and defamatory material derived
from another source:
Google is an interactive computer service, an entity that
provides “access by multiple users to a computer
server.” . . . [Plaintiff's] claims treat Google as
the publisher or speaker of the allegedly defamatory content
on its website, even though a separate “entity [was]
responsible . . . for the [content's] creation.”
Under the Act, Google . . . cannot be held liable for . . .
merely providing access to, and reproducing, the allegedly
defamatory text. “If a website displays content that is
created entirely by third parties, . . . [it] is immune from
claims predicated on that content.”
Id. (citations omitted). The same reasoning and
conclusion are proper here, based on the facts alleged in the
complaint. Google is thus immune from plaintiff's
defamation claims under the CDA, and, accordingly, ...