United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
James Daniel Hobgood has sued the defendant, Hearst
Communications, Inc., d/b/a 40/29 News (“Hearst”)
for defamation. Hobgood's complaint (Doc. No. 1) has been
referred to the undersigned magistrate judge for preliminary
review, pursuant to LR 4.3(d) and 28 U.S.C. §
1915(e)(2). For the reasons that follow, the district judge
should dismiss plaintiff's complaint because plaintiff
has failed to state a cause of action.
Preliminary Review Standard
magistrate judge conducts a preliminary review of complaints,
like the plaintiff's, which are filed in forma pauperis.
See LR 4.3(d). The magistrate judge may recommend to
the district judge that one or more claims be dismissed if,
among other things, the court lacks jurisdiction, a defendant
is immune from the relief sought, or the complaint fails to
state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2); LR 4.3(d). In conducting its
preliminary review, the court construes pro se complaints
liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). The complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Here, the complaint fails to state a claim upon which relief
may be granted
2016, plaintiff pled guilty in federal court to
cyberstalking, preserving his right to appeal the district
court's denial of his motion to dismiss the indictment.
Complaint (Doc. No. 1) at 3; Hobgood II, 868 F.3d at
746. He was sentenced to one year and one day in prison and
ordered to pay the victim $2387.91 in restitution.
Id. Following Hobgood's conviction, prosecutors
transmitted statements about the case that received media
coverage. Complaint (Doc. No. 1) at 6. Subsequently,
defendant 40/29, a television station in Fort Smith,
Arkansas, published the following statement on its website
and Facebook page, which Hobgood claims is false and
Prosecutor's Office: A woman stopped seeing James Hobgood
and moved to Arkansas. So, he went online to make it look
like she was an exotic dancer in an attempt to get her fired
unless she “repented for the perceived wrong she
committed against him.”
Id. at 7.
New Hampshire law, “[t]o establish defamation, there
must be evidence that a defendant . . . publish[ed] . . . a
false and defamatory statement of fact about the plaintiff to
a third party.” Independent Mech. Contractors, Inc.
v. Gordon T. Burke & Sons, Inc., 635 A.2d 487, 492
(N.H. 1993) (citing Restatement (Second) of Torts § 558
alleges that “not one factual assertion [in the 40/29
report] was accurate. Complaint (Doc. No. 1) at 8. This
assertion of falsity, however, is undercut by the facts
underlying plaintiff's 2016 guilty plea. The court in
Hobgood II described the facts to which Hobgood
stipulated as part of his plea:
Hobgood and the government stipulated to the following facts.
In September 2014, KB met Hobgood and had a brief romantic
relationship with him in Richmond, Virginia. KB began
rebuffing Hobgood's advances, and in January 2015, she
moved to Arkansas. KB alleges that Hobgood, still living
in Richmond, began contacting her via e-mail, Facebook
messages, and third-party text messages to demand that she
apologize to him in person for her treatment of him. KB did
not do so.
KB alleges that Hobgood then created publicly accessible
social media accounts in which he portrayed KB as an exotic
dancer and prostitute. Hobgood also sent letters to KB's
employer through the mail and over the Internet claiming that
KB was an exotic dancer and prostitute. Hobgood contacted KB
and KB's family by e-mail, stating that unless she
apologized to him, he would continue to make these
representations. According to KB, Hobgood's actions
caused her substantial emotional distress and contributed to
her need for short-term hospitalization.
Law enforcement investigators eventually contacted Hobgood
about his conduct. Hobgood admitted sending KB, her
family, and her employer communications by email, telephone,
and mail, in which he stated that KB was an exotic dancer.
Hobgood told investigators that he would not stop contacting
KB until he caused her to lose her job, or caused her to
“repent” for the unspecified wrong that she
committed against him. Investigators also were able to
corroborate that Hobgood ...