1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JERRY STEARNS, Case No. 25-cv-03507-TLT

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 GOOGLE INCORPORATED, Defendant. 11

12 13 Plaintiff, a federal prisoner incarcerated in New York, filed a pro se complaint against 14 Google, Inc. under

. Dkt. No. 1. The complaint is now before the Court for 15 screening pursuant to pursuant to

. For the reasons identified below, the 16 complaint is dismissed. Plaintiff has been granted leave to proceed in forma pauperis by separate 17 order. 18 DISCUSSION 19 A. Standard of Review 20 In cases in which the plaintiff is proceeding in forma pauperis, the Court is required to 21 screen each case, and shall dismiss the case at any time if the Court determines that the allegation 22 of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon 23 which relief may be granted, or seeks monetary relief against a defendant who is immune from 24 such relief.

(e)(2). 25 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke 26 v. Williams,

(1989); Franklin v. Murphy,

, 1227–28 (9th Cir. 27 1984). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably 1 327; see also Andrews v. King,

, 1121 (9th Cir. 2005) (defining frivolous as “of 2 little weight or importance: having no basis in law or fact”). An action is malicious if it was filed 3 with the “intention or desire to harm another.” Andrews, 398 F.3d at 1121 (9th Cir. 2005). 4 To state a claim upon which relief may be granted, a complaint must contain “a short and 5 plain statement of the claim showing that the pleader is entitled to relief ....” Fed. R. Civ. P. 6 8(a)(2). If the factual elements of a cause of action are present but are scattered throughout the 7 complaint and not organized into a “short and plain statement of the claim,” dismissal for failure 8 to satisfy Rule 8 is proper. McHenry v. Renne,

, 1178 (9th Cir. 1996). Thus, to 9 comply with Rule 8, a complaint should clearly and fully set forth “who is being sued, for what 10 relief, and on what theory, with enough detail to guide discovery.” Id. Such notice pleading is 11 required in federal court in order to “give the defendant fair notice of what the claim ... is and the 12 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly (Twombly),

, 555 13 (2007) (internal quotations omitted). Detailed factual allegations are not required, but 14 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.” Ashcroft v. Iqbal (Iqbal),

(2009) (citing Twombly, 16

(2007)). “Vague and conclusory allegations of official participation in civil 17 rights violations are not sufficient ....” Ivey v. Bd. of Regents of the Univ. of Alaska,

, 18 268 (9th Cir. 1982). 19 Plaintiffs proceeding pro se in civil rights actions are entitled to have their pleadings 20 liberally construed and to have any doubt resolved in their favor. See Wilhelm v. Rotman, 680

, 1121 (9th Cir. 2012) (citations omitted). Nonetheless, to survive screening, a 22 plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the 23 Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 24 556 U.S. at 678–79; Moss v. U.S. Secret Serv.,

(9th Cir. 2009). That is, the 25 plaintiff must demonstrate each defendant personally participated in the deprivation of his rights. 26 Jones v. Williams,

(9th Cir. 2002). The “sheer possibility that a defendant has 27 acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 1 at 969. Thus, where a plaintiff fails to “nudge [his or her] claims ... across the line from 2 conceivable to plausible[,]” the complaint is properly dismissed. Iqbal,

(internal 3 quotations omitted). 4 To state a claim under

, a plaintiff must allege two essential elements: (1) 5 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 6 alleged violation was committed by a person acting under the color of state law. See West v. 7 Atkins,

(1988). 8 Leave to amend may be granted to the extent that the deficiencies of the complaint can be 9 cured by amendment. Cato v. U.S.,

, 1106 (9th Cir. 1995). 10 B. Analysis 11 Plaintiff asserts that the Court has both federal question jurisdiction and diversity 12 jurisdiction. He alleges that he performed a Google search on May 11, 2019, which unwittingly 13 returned images of child pornography which formed the basis of federal charges that were 14 subsequently field against him. Plaintiff was convicted and sentenced to 11 years. Plaintiff seeks 15 to hold Google liable under the Communications Decency Act (CDA), federal child pornography 16 statutes, and state negligence law. He seeks damages. 17 Plaintiff argues that Google is liable for creating thumbnail images of third-party content 18 and storing the thumbnail images and “sending those thumbnail images to a user’s computer” as 19 image search results. Plaintiff alleges that although not legally required to do so, Google employs 20 a stringent filtering process to remove child pornography from its system and indices in order to 21 protect its products, its image, and its users. He alleges that he chose to use Google because he 22 believed it would be a platform safe from receiving illicit images, and that Google negligently or 23 grossly negligently failed to protect him from receiving illicit third-party images that resulted in 24 his prosecution. 25 Plaintiff does not state a constitutional claim under section 1983 because he sues a 26 defendant who was not acting under color of state law. There is no private right of action under the 27 CDA or federal criminal statutes. Plaintiff has therefore failed to establish federal question 1 California law. 2 California courts define negligence as a “failure to exercise the degree of care in a given 3 situation that a reasonable person under similar circumstances would employ to protect others 4 from harm.” City of Santa Barbara v. Superior Ct.,

(2007). Plaintiff does not 5 allege that Google failed to exercise reasonable care. His allegations suggest that Google was in 6 || fact taking more care than it was required to. He has not stated a claim for negligence under 7 California law. 8 Further, section 230 of the CDA generally immunizes entities like search engines from 9 || liability for claims involving how these entities do or do not moderate content created by others. 10 || Section 230 “protects certain internet-based actors from certain kinds of lawsuits.” Barnes v. 11 Yahoo!, Inc.,

(9th Cir. 2009). “No provider or user of an interactive computer 12 service shall be treated as the publisher or speaker of any information provided by another 5 13 information content provider.”

(c)(1). “No cause of action may be brought and no 14 || liability may be imposed under any State or local law that is inconsistent with this section.” 47 3 15 || U.S.C. § 203(e)(3). The CDA would preclude any claim like plaintiffs even if he stated a claim 16 || under state law. See, e.g., Ginsberg v. Google Inc.,

, 1006 (N.D. Cal. 2022) 3 17 (section 230 precludes claim of negligence in failing to remove certain content from Google Play 18 store because the conduct of removing content is that of a publisher). 19 CONCLUSION 20 For the foregoing reasons, the case is dismissed for failure to state a claim upon which 21 relief may be granted. 22 The Clerk shall terminate any pending motions, enter judgment, and close the file. 23 IT IS SO ORDERED. 24 Dated: August 15, 2025 25 Soe 7 TRINA‘. THOMPSON United States District Judge 28