Christopher King v. Facebook, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2021
• Docket: 20-15188
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTOPHER KING, AKA KingCast, No. 20-15188 JD, D.C. No. 3:19-cv-01987-WHO Plaintiff-Appellant,

v. MEMORANDUM*

FACEBOOK, INC.; JENNIFER MARIE MALONE,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Submitted April 20, 2021**

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

Christopher King appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims arising from Facebook,

Inc.’s removal of certain of King’s posts and temporary suspensions of his account.

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

Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). We affirm.

The district court properly dismissed King’s claims against Facebook

alleged in his second amended complaint because Facebook is immune under the

Communications Decency Act. See 47 U.S.C. § 230(c)(1); Fair Hous. Council of

San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1170–71 (9th Cir.

2008) (“[A]ny activity that can be boiled down to deciding whether to exclude

material that third parties seek to post online is perforce immune under section

230.”); see also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009)

(“[T]he language of the statute does not limit its application to defamation cases.”).

The district court properly dismissed King’s claims against Facebook

alleged in his third amended complaint for retaliatory breach of contract and

breach of the implied covenant of good faith and fair dealing because King failed

to allege sufficient facts to state a plausible claim. See Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992) (a court may not supply essential elements of a claim in a

pro se complaint); see also Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132,

1137 (9th Cir. 1998) (“[A] party cannot be held liable on a bad faith claim for

doing what is expressly permitted in the agreement.”); Walsh v. W. Valley Mission

Cmty. Coll. Dist., 78 Cal. Rptr. 2d 725, 733 (Ct. App. 1998) (outlining elements of

2 20-15188 a breach of contract claim).

The district court properly declined to address King’s claim against

Facebook alleged in his third amended complaint for violation of the First

Amendment because King was not granted leave to add that claim. See Atchison,

Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998)

(“[D]istrict courts have inherent power to control their dockets. . . .”). King’s

contention that the district court should have granted him leave to amend to plead a

First Amendment claim is without merit.

We reject as without merit King’s argument that his claims should not have

been dismissed because Facebook’s terms of service are unconscionable.

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 Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 20-15188