Summary
holding Section 223 does not provide a private right of action
Summary of this case from Croteau v. StateOpinion
No. C 02-03143 CRB
February 25, 2003
ORDER OF DISMISSAL
On January 29, 2003, the Court issued an Order To Show Cause why this action should not be dismissed for lack of subject matter jurisdiction. In the Order the Court explained why the Court does not have jurisdiction of this case based on the facts alleged by plaintiff. In response, plaintiff alleges the Court has federal questions jurisdiction "under the US Constitution, Amendment 1, and 47 U.S.C. § 223."
Plaintiff's response fails to demonstrate that this federal court has subject matter jurisdiction of his complaint. A claim for violation of the First Amendment to the United States Constitution must be brought pursuant to 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the United States Constitution or the laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Plaintiff does not and cannot allege that defendants are state actors; instead, the allegations of the complaint demonstrate that defendants are private citizens. Accordingly, he cannot state a claim under Section 1983 for violation of his First Amendment rights and therefore his complaint does not state a federal question in this respect.
Plaintiff appears to contend that defendants' speech is not protected by the First Amendment and therefore the states may regulate such speech through the imposition of tort liability. Regardless of whether the defendants' speech is protected, plaintiff's complaint does not state a claim for violation of the First Amendment and therefore the Court does not have subject matter jurisdiction of his state law claims.
Plaintiff also contends that in 47 U.S.C. § 223 "Congress has provided criminal penalties against any person `who makes repeated telephone calls . . . solely to harass any person at the called number.'" Plaintiff's Response at 3. He then sums up: "Thus, any defendant who repeatedly called plaintiffs solely to harass them or communicated threats of physical injury would violate plaintiff's right to privacy and seclusion and be liable under US Const. First Amendment, and 47 U.S.C. § 223." Id. at 4. As is explained above, defendants are not liable under the First Amendment — which protects free speech — simply because their speech is not protected. Similarly, they cannot be liable to plaintiff under a statute which provides for criminal penalties but does not provide a private right of action. In other words, plaintiff cannot bring suit against defendants pursuant to 47 U.S.C. § 223.
As plaintiffs complaint does not state a federal claim, this Court lacks subject matter jurisdiction of his complaint. Accordingly, this action is hereby DISMISSED without prejudice.