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Banks v. Handy

September 2, 2010

LARRY BANKS, PLAINTIFF,
v.
SHANNON HANDY, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED OBJECTIONS DUE: 30 DAYS

I. INTRODUCTION

Plaintiff Larry Banks ("Plaintiff") is proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while a prisoner in state prison, defendant Shannon Handy ("Handy"), a news reporter, broadcasted a false television news report regarding Plaintiff. Handy reported that, due to newly uncovered DNA evidence, Plaintiff (who was apparently serving prison time for a 1993 armed robbery) was a suspect in the unsolved 1977 case involving the sexual assault and murder of Susan Vallin. Plaintiff alleges that state prison officials placed him in administrative segregation because there were pending criminal proceedings against him.

Plaintiff further alleges that he received an internet copy of a report from NBC Channel 24 that was apparently issued on or around December 23, 2008. The report indicates that the Fresno Police Department issued an arrest warrant for a suspect in a sexual assault and murder case that happened in 1977. Plaintiff alleges that the report states that the police used DNA evidence to issue the warrant for his arrest.

Plaintiff asserts that on February 26, 2009, he was arrested and was booked into the Fresno County Jail for murder. On October 23, 2009, Plaintiff was found guilty of murder in the first degree with the use of a knife.*fn1 On that same day, Plaintiff contends that Kim Stephens, a news reporter for Fox Channel 26, broadcast a live report that Plaintiff would spend the rest of his life in prison for the 1977 murder and rape of Susan Vallin.

Finally, Plaintiff asserts that there was significant internet coverage of his arrest and conviction which he maintains is false. Plaintiff contends that Google profited by misleading the public regarding the facts of the Susan Vallin murder case. He further argues that he never gave Google "approval to open up a web[site] in my name." Therefore, Plaintiff names Sergey Brin and Larry Page, "co-founders" of "Google, Inc." as defendants. Complaint at 6.

Plaintiff alleges that these defendants wrote false reports about him in the news media, lied to the public, and put Plaintiff in danger. Plaintiff contends that this conduct amounts to a due process violation of Plaintiff's Fourteenth Amendment rights. Further, Plaintiff asserts that the defendants' conduct in issuing the false reports was racially motivated and amounts to intentional discrimination in violation of Plaintiff's right to equal protection under the law. Finally, Plaintiff asserts that the false reports issued by defendants were an invasion of his privacy, and the defendants' slander against him caused defamation to his character in violation of his Fifth and Fourteenth Amendment rights. Complaint at 7.

II. DISCUSSION

A. Screening Standard

In cases where the plaintiff is a prisoner proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon 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). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

B. Failure to State a Claim

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all ...


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