UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK SHAWN EGGSWARE, Plaintiff, 1:22-CV-77 V. (GLS/DJS)

OPRAH WINFREY, YOUTUBE, and GOOGLE, Defendants.

APPEARANCES: SHAWN EGGSWARE Plaintiff, Pro Se Waterford, New York 12188 DANIEL J. STEWART “| United States Magistrate Judge REPORT-RECOMMENDATION and ORDER Plaintiff filed this action seeking to assert claims due to the alleged violation of his privacy rights. Dkt. No. 1, Compl. Plaintiff has not paid the filing fee but has submitted an application to proceed in forma pauperis (“IFP”), Dkt. No. 2, which the Court has granted.

I. SUFFICIENCY OF THE COMPLAINT A. Governing Legal Standard

(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) ... the court shall dismiss the case at any time if the court determines that

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—...(B) the action .. . (1) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”

(e)(2)(B).!_ Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court’s responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See

In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly,

(2d Cir. 1990) (per curiam), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin,

(2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). “A claim has facial plausibility «|when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

).

' To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 SS 319, 325 (1989).

Although a court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Jd. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

(citing Bell Atl. Corp. v. Twombly,

). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” /d. at 679 (quoting FED. R. CIV. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly,

). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. /d. (internal quotation marks and alterations omitted). B. Summary of the Complaint Plaintiff alleges that he used a Google application to record a documentary video on his phone. Compl. at p. 2. He alleges that Defendant Winfrey obtained access to the

«| video on his phone and responded by posting a video to YouTube questioning Plaintiffs use of the word “penis” in the video he made. /d. at p. 5. The Complaint seeks monetary damages, the initiation of criminal investigation and charges, and the issuance of an Order of Protection in his favor against Defendant Winfrey. Jd. at pp. 4-5.

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C. Analysis of the Complaint Plaintiff asserts two causes of action against Defendants.* One for invasion of privacy and another for libel/slander. Neither is sufficient to survive initial review as presently pled.

“New York law recognizes only a limited statutory right of privacy under New York Civil Rights Law §§ 50 and 51. Civil Rights Law §§ 50 and 51 were drafted narrowly to encompass only the commercial use of an individual’s name or likeness and no more. A plaintiff complaining of invasion of privacy must prove: (1) use of plaintiff's name, portrait, picture or voice (2) for advertising purposes or for the purposes of trade (3) without consent and (4) within the state of New York.” Farmer v. Dr. Lucia Patino, Optometrist, P.C.,

, at *6 (E.D.N.Y. Jan. 4, 2019) (internal quotations and citations omitted). Plaintiff's Complaint makes no allegations regarding these elements and so his invasion of privacy claim must be dismissed. Plaintiff's purported libel/slander claims also must be dismissed. Under New York law a [libel] defamation plaintiff must establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability. In addition, [u]nder New York law, to state a cause of action for slander, the plaintiff must allege facts plausibly suggesting (1) a defamatory statement of fact, (2) that is false, (3) published to a third party, (4) of and concerning the plaintiff, (5) made with the applicable level of fault on the part of the speaker, (6) that causes either

? Although the Complaint is filed a blank section 1983 complaint form, Plaintiff makes no allegation of state action that would make a claim under that statute actionable. _4-

special harm or constitutes slander per se, and (7) that is not protected by privilege. Maclnerney v. Allen,

, at *6 (N.D.N.Y. Feb. 24, 2022) (internal quotations and citations omitted). The Complaint plainly fails to plead these claims with

| this level of specificity. In particular, both libel and slander require the making of a false statement, but the Complaint does not allege that Defendant Winfrey made any false statement. “[A] court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once ‘when a liberal reading of the complaint gives any indication that a valid claim might be stated.’” Bruce v. Tompkins Cty. Dep’t of Soc. Servs. ex rel. “| Kephart,

, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark,

(2d Cir. 1991). Accordingly, the Court recommends that the Complaint be dismissed, but that Plaintiff be afforded an opportunity to amend. Il. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Plaintiff's Complaint be DISMISSED with leave to amend; and it is ORDERED, that the Clerk of the Court serve a copy of this Report- Recommendation and Order upon the parties to this action.

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Pursuant to

(b)(1), the parties have fourteen (14)? days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.

Racette,

(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,

(2d Cir. 1989)); see also

(b)(1); FED. R. CIv. P. 72 & 6(a). Dated: March 10, 2022 Albany, New York Steught US-Magistrate Judge

3 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C). -6-