Franco Caraccioli v. Facebook, Inc.
700 F. App'x 588
9th Cir.
2017
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Docket

Candace P. LEE v. Todd H. MASTER, Joseph C. Howard, Jr., Howard Rome Martin & Ridley LLP, and Peggy Sue Doyle

United States Court of Appeals, Ninth Circuit

690 F. Appx. 588

MEMORANDUM **

Candace P. Lee appeals pro se from the district court‘s judgment dismissing her 42 U.S.C. § 1983 action alleging excessive force and breach of a settlement agreement. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

. We affirm.

The district court properly dismissed Lee‘s excessive force claim because it was barred by the statute of limitations. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury claims);

(stating that the statute of limitations for § 1983 claims is governed by the forum state‘s statute of limitations for personal injury claims, including state law regarding tolling).

The district court properly dismissed Lee‘s claim alleging a breach of a settlement agreement because Lee failed to allege facts sufficient to show that defendants breached the terms of the agreement with her. See

(although pro se pleadings are liberally construed, plaintiff must allege facts sufficient to state a plausible claim).

The district court did not abuse its discretion in denying Lee‘s motion for reconsideration because Lee demonstrated no grounds for relief. See

(standard of review).

We reject as unsupported by the record Lee‘s contentions regarding alleged judicial bias.

Appellees Todd H. Master, Joseph C. Howard, Jr., Howard Rome Martin & Ridley LLP, and Peggy Sue Doyle‘s request for sanctions, set forth in their answering brief, is denied without prejudice. See Fed. R. App. P. 38 (requiring separately filed motion for damages and costs on appeal);

(an appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit).

AFFIRMED. *

Franco CARACCIOLI, Plaintiff-Appellant, v. FACEBOOK, INC., a Delaware corporation, Defendant-Appellee.

No. 16-15610

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 2017; Filed June 6, 2017

690 F. Appx. 588

Franco Caraccioli, Pro Se

Ryan M. Spear, Eric D. Miller, Perkins Coie LLP, Seattle, WA, for Defendant-Appellee

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON, Circuit Judges.

MEMORANDUM **

Franco Caraccioli appeals pro se from the district court‘s judgment dismissing his diversity action alleging various state law claims arising from Facebook, Inc.‘s refusal to remove private images and videos of Caraccioli posted on Facebook‘s website by a third party. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court‘s dismissal under Federal Rule of Civil Procedure 12(b)(6).

. We affirm.

The district court properly dismissed Caraccioli‘s defamation, libel, false light, public disclosure of private facts, intrusion upon seclusion, intentional and negligent infliction of emotional distress, negligent supervision and retention, and California‘s Unfair Competition Law (“UCL“) claims because the basis for each of these claims is Facebook‘s role as a “republisher” of material posted by a third party, and the claims are, therefore, barred by the Communications Decency Act (“CDA“). See 47 U.S.C. § 230(c)(1);

(§ 230(c)(1) of the CDA “protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider“). Contrary to Caraccioli‘s argument, Facebook did not become the “information content provider” under § 230(c)(1) merely by virtue of reviewing the contents of the suspect account and deciding not to remove it. See
(en banc) (explaining that “determin[ing] whether or not to prevent [the] posting” of third-party material online is “precisely the kind of activity” covered by the CDA);
(explaining that through § 230(c)(1), “Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.“)

The district court properly dismissed Caraccioli‘s breach of contract claim and UCL claim, to the extent it was premised on an alleged breach of contract, because these claims are barred by Facebook‘s terms of service, which expressly disclaim Facebook‘s responsibility for the content published by third parties. See

(“If a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, the words being interpreted in their ordinary and popular sense, provided that the language is clear and explicit, and does not involve an absurdity.” (citations omitted)). We reject as without merit Caraccioli‘s argument that Facebook‘s terms of service are unconscionable. See
(explaining that under California law, “[a] finding of unconscionability requires a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results” (citation omitted)).

The district court did not abuse its discretion in denying Caraccioli‘s motion for leave to amend because amendment would be futile. See

(setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See

.

AFFIRMED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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