Allen v. Facebook

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 4, 2024
• Docket: 24-3080
• Status: Unpublished

Opinion

Appellate Case: 24-3080 Document: 13-1 Date Filed: 11/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL ANTHONY ALLEN,

Plaintiff - Appellant,

v. No. 24-3080 (D.C. No. 5:24-CV-03057-JWL) FACEBOOK; META; INSTAGRAM; (D. Kan.) TWITTER; MARK ZUCKERBERG; MICHAEL ZUCKERBERG,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________

Pro Se inmate Michael Allen filed a 42 U.S.C. § 1983 civil rights lawsuit

against Facebook and other social media entities alleging that, while incarcerated, he

is the target of some sort of “illegal A.I.” emitter technology, causing psychosis and

suicidal thoughts. R., Vol. 1 at 5. He alleged that this “wifi technology little black

box technology ultra sound beam air technology[sic]” was deployed against him by

After examining the briefs and appellate record, this panel has determined *

unanimously to render a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3080 Document: 13-1 Date Filed: 11/04/2024 Page: 2

social media companies once his prison facility implemented a new tablet program,

and it caused him to hear psychotic voices in his head. R., Vol. 1 at 7.

The district court, reviewing his prisoner complaint under 28 U.S.C. § 1915(a),

issued an order to show cause why the case should not be dismissed as frivolous and

for failure to state a claim against a government actor. Mr. Allen responded within

the deadline, but his response focused primarily on his concerns that his letters were

apparently not reaching their intended recipients (the FBI, Topeka police,

courthouses, and various news outlets). The response reiterated Mr. Allen’s belief

that he was being targeted by social media companies and cited a Domino’s Pizza

commercial featuring a “mind ordering” functionality as evidence that such

technology could be used to read minds and transmit thoughts.

Finding that this response did not show that Mr. Allen’s claims were non-

frivolous, and that he still failed to identify a state actor, the district court dismissed

the suit. 1 Mr. Allen moved for reconsideration, providing additional information on

his undelivered or unanswered letters. He also alleged a massive cyber invasion by

social media companies targeting the government to hide his allegations. The district

court denied the motion because it did not meet the exacting standard for relief under

Fed. R. Civ. P. 59(e).

Because the complaint was dismissed before any summons were issued, no 1

defendant has made an appearance. 2 Appellate Case: 24-3080 Document: 13-1 Date Filed: 11/04/2024 Page: 3

Mr. Allen appealed. His brief presents largely the same issues that he raised to

the district court. Like the district court, we conclude that the case is frivolous and

fails to name a responsible state actor.

“A complaint or appeal is frivolous when it ‘lacks an arguable basis either in

law or in fact.’” Manco v. Does, 363 F. App’x 572, 575 (10th Cir. 2010) (citing

Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Although Mr. Allen provides

documentation of his many letters and his unsuccessful efforts to inform authorities

of his claims, he cannot corroborate any of the facts he alleges against the social

media defendants. “We have no difficulty concluding this petition is frivolous based

on its arguments alone.” Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir.

2013); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual

frivolousness is appropriate when the facts alleged rise to the level of the irrational or

the wholly incredible, whether or not there are judicially noticeable facts available to

contradict them.”).

Furthermore, “[t]o state a claim under § 1983, a plaintiff must . . . show that

the alleged deprivation was committed by a person acting under color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988). Mr. Allen has not identified a state actor.

Neither his response to the show cause order, his motion for reconsideration, nor his

appeal to this court have argued that any of the social media defendants are state

actors. Nor could they. The district court identified plentiful case law from other

districts and circuits uniformly concluding these defendants are not state actors. See

e.g. Bethune v. Facebook Inc., No. 21-CV-2118 (NEB/HB), 2021 WL 5182246, at *2

3 Appellate Case: 24-3080 Document: 13-1 Date Filed: 11/04/2024 Page: 4

(D. Minn. Oct. 15, 2021) (“Neither Facebook nor Zuckerberg is alleged, or can

plausibly be alleged, to be a ‘state actor’ within the meaning of § 1983.”) (citing

Prager Univ. v. Google LLC, 951 F.3d 991, 997 n.3 (9th Cir. 2020) (collecting

cases)). Nor can Mr. Allen point at the governmental agencies that he suggests have

failed to investigate his claims. None of those entities caused the injuries he

complains of, and none are named defendants in this case.

Mr. Allen also filed a motion to proceed in forma pauperis in this appeal. He

appears to have no assets, but to qualify for this status under 28 U.S.C. § 1915(a), “an

appellant must show a financial inability to pay the required filing fees and the

existence of a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.

1991) (emphasis added); Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.

2005). “An appeal is frivolous under this section if it is ‘based on an indisputably

meritless legal theory.’” Salgado-Toribio, 713 F.3d at 1270 (quoting Neitzke, 490

U.S. at 327). We therefore deny Mr. Allen’s motion to proceed on appeal without

prepayment of costs or fees. Mr. Allen’s filing fee is due in full immediately. See

Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2011).

4 Appellate Case: 24-3080 Document: 13-1 Date Filed: 11/04/2024 Page: 5

Because Mr. Allen’s complaint is frivolous and without merit, we affirm the

district court’s dismissal. 2

Entered for the Court

Timothy M. Tymkovich Circuit Judge

This dismissal imposes Mr. Allen’s second “strike” under 28 U.S.C. 2

§ 1915(g). See Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011). 5