Getachew v. Google, Inc. ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT August 9, 2012
Elisabeth A. Shumaker
Clerk of Court
ALEMAYEHU GETACHEW,
Plaintiff - Appellant, No. 12-1237
(D.C. No. 1:12-CV-00896-LTB)
v. (D. Colo.)
GOOGLE, INC.,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
Alemayehu Getachew, appearing pro se,1 seeks review of the district court’s
* After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
1
Because Mr. Getachew is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
dismissal of his amended complaint. He also requests leave to proceed on appeal in
forma pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In his amended complaint, Mr. Getachew alleges that when all or part of his name
is entered into Google’s Internet search engine, the search results yield negative
information about him. For example, Mr. Getachew was previously a plaintiff in an
employment action, and he alleges that the summary judgment order in that case is
available when part of his name is entered into Google’s search engine. He also alleges
that another Google search result links his name to a “[g]raduate position available in
evolutionary systems biology.” ROA, Vol. 1 at 38.
Mr. Getachew alleges that the online availability of the summary judgment order
has hurt his employment opportunities. Accordingly, he asserts claims for (1)
discrimination in violation of 42 U.S.C. § 1981, (2) retaliation under Title VII of the Civil
Rights Act of 1964, and (3) negligence. Mr. Getachew also asserts a fourth claim for
intentional infliction of emotional distress based on Google’s “evolutionary systems
biology” search result.2
Noting that Mr. Getachew was granted leave under 28 U.S.C. § 1915 to proceed in
forma pauperis,3 the district court dismissed the amended complaint under
2
The amended complaint states that Mr. Getachew was “publicly humiliated,
harassed, and intimidated” as a result of this search result. ROA, Vol. 1 at 43.
3
Although 28 U.S.C. § 1915(e)(2)(B) was amended by the Prisoner Litigation
Reform Act, we concluded in Ruston v. Church of Jesus Christ of Latter-Day Saints, 304
Continued . . .
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§§ 1915(e)(2)(B)(i) and (iii). Under these subsections, a “court shall dismiss [a] case at
any time if the court determines that . . . the action or appeal . . . (i) is frivolous or
malicious; . . . or (iii) seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B) (emphases added).
The district court determined that Mr. Getachew’s discrimination claim was
frivolous because he could not “demonstrate that [Google] intended to discriminate based
on race . . . merely because access to a public record is available through an Internet
search engine on [Google’s] website.” ROA, Vol. 1 at 49. The court found Mr.
Getachew’s Title VII claim to be frivolous because he failed to allege an employer-
employee relationship with Google. Finally, the court dismissed Mr. Getachew’s state-
law tort claims because Google has immunity from such claims under federal law. See
47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information
content provider.”); Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980,
985 (10th Cir. 2000).
“We generally review a district court’s dismissal for frivolousness under § 1915
for abuse of discretion.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). “A
district court may deem an in forma pauperis complaint frivolous only if it lacks an
F. Appx. 666, 668 (10th Cir. 2008) (unpublished), that § 1915(e)(2)(B) applies to all in
forma pauperis proceedings. Although that order and judgment is not binding precedent,
see 10th Cir. R. App. P. 32.1, we find its analysis persuasive.
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arguable basis either in law or in fact.” Id. (quotations omitted); see also Schlicher v.
Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (“[A] district court may dismiss an in forma
pauperis action as frivolous if the claim is based on an indisputably meritless legal theory
or if it is founded on clearly baseless factual contentions.” (alterations omitted)
(quotations omitted)). We review de novo whether 47 U.S.C. § 230 grants a defendant
immunity. See Ben Ezra, 206 F.3d at 984-85.
We have carefully reviewed Mr. Getachew’s amended complaint, the record in
this case, and the relevant legal authority. We conclude that the district court did not
abuse its discretion in dismissing Mr. Getachew’s federal claims as frivolous. These
claims are indisputably meritless. See Schlicher, 111 F.3d at 779. The district court also
was correct that Google is immune from Mr. Getachew’s state-law claims under 47
U.S.C. § 230(c)(1). Under that provision, Google cannot be held liable for search results
that yield content created by a third party. See Ben Ezra, 206 F.3d at 984-85.4
4
On appeal, Mr. Getachew also asserts that Google violated his rights under the
Thirteenth Amendment to the United States Constitution and that the company was
unjustly enriched. He did not assert these claims in his amended complaint. We will not
exercise our discretion to consider these issues for the first time on appeal. See Johnson
v. Lindon City Corp., 405 F.3d 1065, 1070 (10th Cir. 2005).
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We therefore affirm the district court’s dismissal of Mr. Getachew’s amended
complaint under §§ 1915(e)(2)(B)(i) and (iii). We also deny Mr. Getachew’s renewed
application to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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