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GLENDORA v. MARSHALL

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 12, 1996

GLENDORA, Plaintiff,
v.
BARRY MARSHALL, BRIAN SULLIVAN, SCOTT BROWN, JOHN WICKER, MYLES RICH and any John or Jane DOE defendants may claim as necessary party and UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC. d/b/a/ TCI CABLE OF WESTCHESTER, Defendants.

The opinion of the court was delivered by: RAKOFF

MEMORANDUM ORDER

 JED S. RAKOFF, U.S.D.J.

 Glendora produces and hosts the public-access program "A Chat With Glendora," which is broadcast on cable television in the Westchester, New York area. For at least the past two years she has also been a frequent pro se litigant in the state and federal courts of New York, complaining of various changes in public-access cable programming that she alleges have unlawfully restricted the distribution of her program and injured her and the public in a variety of ways. *fn1"

 Struck by plaintiff's energy and tenacity, the Court has paid close attention to her claims and submissions. But courts have only a modest role in the regulation of cable broadcasting. If producers like Glendora are the stars, judges are but bit players, and have little power to interfere. Specifically, in the instant case the Court is without lawful power to afford relief on the stated allegations of the Complaint and therefore must dismiss the action.

 The facts of the case are fully set forth in the prior decisions of the Honorable William C. Conner -- Glendora v. Malone, 917 F. Supp. 224 (S.D.N.Y. 1996); Glendora v. Malone, 911 F. Supp. 142 (S.D.N.Y. 1996) -- full familiarity with which is assumed. *fn2" The case was referred for pre-trial purposes to the Honorable Mark D. Fox, United States Magistrate Judge, who on August 5, 1996 submitted a Report and Recommendation denying various motions made by plaintiff and granting the motion of defendants to dismiss the amended complaint for failure to state a claim or, in the alternative, for summary judgment. On August 19, 1996, plaintiff submitted a two-volume objection to the Report and Recommendation, and defendants responded by written submission on September 6, 1996. On September 27, 1996, the Court heard substantial oral argument by the parties on the motions addressed in the Magistrate's Report, and, additionally, the Court addressed various new motions that had arisen since the filing of the Report. After receipt of still further written submissions, the Court undertook de novo review of the underlying record.

 Based on that review, the Court concludes that, while several of plaintiff's motions may have merit, they are rendered moot by the defendants' motion, which the Court is obliged to grant. It does so essentially for the reasons set forth in Judge Fox's Report, which is hereby incorporated by reference. Only a few added words are in order.

 Plaintiff alleges both federal and state causes of action. With respect to plaintiff's first federal claim, pursuant to 42 U.S.C. § 1983, alleging that the defendants violated her rights under the First and Fourteenth Amendments to the U.S. Constitution, one is confronted with a threshold failure to demonstrate that the alleged violations by defendants occurred under "color of state law." See Glendora v. Cable Sys. Corp., 893 F. Supp. 264, 269 (S.D.N.Y. 1995). The defendants in this action are private persons and entities who, under settled precedent binding on this Court, cannot be regarded as "state actors" under either a "state-function" or "symbiotic relationship" approach to the state action doctrine. See Jensen v. Farrell Lines, Inc., 625 F.2d 379, 384 (2d Cir. 1980), cert. denied, 450 U.S. 916, 67 L. Ed. 2d 341, 101 S. Ct. 1359 (1981).

 It is true that a private actor may be considered a state actor if "the conduct of the private actor is equivalent to the performing of a state function . . . traditionally associated with sovereignty." Jensen, 625 F.2d at 384. But as Judge Brieant has previously held in a related case, the defendants here do not qualify as "state actors" under this approach because "the ownership and operation of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they functions of sovereignty." Glendora v. Cablevision Sys. Corp., 893 F. Supp. 264, 269 (S.D.N.Y. 1995).

 Likewise, there is here no so-called "symbiotic relationship" as the relevant case law defines it. The defendants here and the state are not "so significantly involved with one another as to render [defendants] subject to the constitutional responsibilities of the state." Jensen, 625 F.2d at 384. "That a cable company is subject to state and federal regulations, or operates pursuant to a franchise, does not transform its actions, including decisions to cancel public access programs, into actions of the government." Glendora v. Cablevision Sys. Corp., 893 F. Supp. at 269; see also Glendora v. Kofalt, 162 Misc. 2d at 166.

 The record is also devoid of any evidence that would support plaintiff's claim of discrimination under 42 U.S.C. § 1981. Indeed, this part of the Complaint merely alleges that "this action arises under the First and Fourteen Amendments to the United States Constitution" and that "plaintiff seeks redress for the violation of her Federal Constitutional and civil rights." Complaint PP 5-6. Yet "essential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory and racially motivated." Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988) (citations omitted). Even a pro se plaintiff must allege some such allegations to avoid dismissal, and none is alleged here.

 As her final federal claim, plaintiff alleges a violation by defendants of 47 U.S.C. § 531(e), which states that "a cable operator shall not exercise any editorial control" over public access channels. This statutory provision, however, was not implicated by defendants' decision to change the distribution of public access television. Thus, because plaintiff has not demonstrated how a change in the method for disseminating her program to the public affects the content or substance of her show, her § 531(e) claim must fail. Cf. Glendora v. Hostetter, 916 F. Supp. 1339, 1341-42 (S.D.N.Y. 1996) (denying injunction of alleged editorial control by cable company).

 Turning to plaintiff's state law claims, while the Court could have dismissed these on jurisdictional grounds, Judge Fox recommended retaining supplemental jurisdiction over them but then found them deficient on the merits. The Court concurs in both respects.

 Plaintiff's claim for violation of the anti-censorship provisions of N.Y. Pub. Serv. Law § 229(3) (originally enacted as N.Y. Exec. Law § 829(3)) fails because, as explained in the denial of plaintiff's federal § 531(e) claim above, defendants have exercised no editorial control of plaintiff's show.

 Plaintiff's claim that defendants violated N.Y. Pub. Serv. Law § 226 (originally enacted as N.Y. Exec. Law § 826) by changing the distribution of her program without first providing notice to her must also be dismissed. The statute requires that a cable television company provide six months notice before abandoning any service or portion thereof. Changing the manner in which a service is provided, however, does not constitute abandonment of a service. Moreover, the statute requires notice to be given "to the commission and to the franchisor, if any, and to the municipalities." Assuming arguendo that changing distribution of a program constitutes abandonment of a service, plaintiff nevertheless falls outside the class of persons entitled to notice of such "abandonment."

 Plaintiff's claims that defendants violated N.Y. Comp. Codes R. & Regs. tit. 9, § 595.4, which establishes the state's minimum requirements for public access to cable programming, also fails, because each municipality will continue to provide at least one public access channel.

 Plaintiff's common law claims for infliction of emotional distress, defamation, and negligence are inadequate both on the face of the Complaint and in light of her subsequent voluminous submissions to the Court. See generally, Glendora v. Walsh, 642 N.Y.S.2d 545 (App. Div. 1996); Glendora v. CBS, Inc., 213 A.D.2d 594, 624 N.Y.S.2d 254 (App. Div. 1995); Glendora v. Kofalt, 162 Misc. 2d 166, 616 N.Y.S.2d 138 (Sup. Ct. 1994).

 As to her emotional distress claim, plaintiff fails to point to any conduct by defendants that is "so outrageous in character, and so extreme in degree" as to arguably support her claim of intentional infliction of emotional distress. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). Likewise, plaintiff's claim of negligent infliction of emotional distress must fail because she cannot demonstrate any conduct by defendants that could have unreasonably endangered the safety of plaintiff or put her in fear of her life. See Buckley v. Metro North Commuter R.R., 79 F.3d 1337, 1343 (2d Cir. 1996); Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 656 (S.D.N.Y. 1993).

 Plaintiff's claim that the "black out" of her program constitutes an action in defamation must likewise be dismissed. Plaintiff has failed to make out a prima facie case in either libel or slander, for she cannot point to any written or spoken statements by defendants that could be construed as false or defamatory. See Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993); Box Tree South Ltd. v. Bitterman, 873 F. Supp. 833, 844 (S.D.N.Y. 1995). Even if mere acts were cognizable under the defamation cause of action, none of the deeds or actions by defendants here alleged is "reasonably susceptible of a defamatory meaning, [and thus is] not actionable and cannot be made so by a strained or artificial construction." Kirkland v. City of Peekskill, 634 F. Supp. 950, 953 (S.D.N.Y. 1986).

 Finally, plaintiff cannot sustain an action in negligence against the defendants because defendants owed her no cognizable legal duty. Where a plaintiff fails to introduce evidence legally sufficient to establish this essential element, the action in negligence must be dismissed. See Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 555 N.Y.S.2d 46 (N.Y. App. Div. 1990).

 While the granting of defendants' motion to dismiss renders moot plaintiff's various motions and appeals from Judge Fox's denials of her motions, the Court has nevertheless carefully considered each in turn and notes the following for purposes of any appeal that may follow. Those of plaintiff's motions that appear without merit, together with the reasons why they would have been denied, are as follows:

  --Plaintiff's motion for a preliminary injunction "enjoining [defendants] from continuing to prohibit 'A Chat with Glendora' from Channel 8 every Tuesday, 9 p.m., and from restoring Channel 8 to what it was April 30, 1996," Plaintiff's Notice of Motion at 2-3, would have been denied, both because plaintiff has failed to demonstrate a likelihood of success on the merits of this case, for the reasons articulated above, and also because plaintiff has failed to demonstrate any irreparable harm. Cf. Glendora v. Malone, 911 F. Supp. 142 (S.D.N.Y. 1996) (denying plaintiff's prior motion for preliminary injunction).

 --Plaintiff's motion that defendants are in default for failure to appear would fail because Ben Wiles, Esq. has defended the case within the meaning of Fed. R. Civ. Proc. 55(a) on behalf of all defendants from the commencement of this action until its dismissal on the date hereof.

 --Plaintiff's motion to reconsider the decision of Judge Conner to grant defendants' prior motion for improper joinder of certain defendants in this case, see Glendora v. Malone, 917 F. Supp. 224 (S.D.N.Y. 1996), would fail because it is not supported by additional evidence to suggest that those defendants belong in this action and therefore affords no reason for disturbing the law of the case.

 --Plaintiff's motion to add as defendants various directors and officers of defendant TCI Cable and its parent company TCI Communications, namely Jerome H. Kern, R.E. Turner, Fred A. Vierra, Stephen M. Brett, Peter R. Barton, Larry E. Romrell, Gary K. Bracken, Bernard W. Schotters, and J.C. Sparkman, would likewise fail, as these putative defendants fall into the same category as those defendants that Judge Conner ruled misjoined in his prior decision.

 By contrast, those of plaintiff's motions that appear to have merit, and the reasons why they would have been granted, are as follows:

 --Plaintiff's request for defendants to provide her with a list of the individual defendants' home addresses, as required by Local Rule 2 of the Southern District of New York, should have been complied with pursuant to Judge Conner's Order of February 26, 1996, Glendora, 917 F. Supp. at 230. The Court disagrees with the suggestion made at oral argument that there is any material evidence that Glendora is a physical threat to those defendants. The Court notes, however, that plaintiff was not prejudiced by defendants' failure to comply with the Court order, since, throughout this litigation, plaintiff has successfully communicated with the opposing parties through their designated counsel, and there was no harm to plaintiff's case resulting from deprivation of the information sought.

 --Plaintiff's motion to compel defendants to produce transcripts of the depositions taken of plaintiff and her husband, Franklyn Buell, would, in the discretion of the Court, likely have been granted.

 --Finally, defendants' motion seeking discovery with respect to Glendora's in forma pauperis status in this case would have been denied.

 For the aforementioned reasons, the Complaint is hereby dismissed. Clerk to enter judgment.

 SO ORDERED.

 JED S. RAKOFF, U.S.D.J.

 Dated: White Plains, New York

 November 12, 1996


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