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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FELIX IBARRA, :

: Case No. 4:06-CV-195

Plaintiff, :

:

v. :

: (Judge McClure)

W.Q.S.U. RADIO :

BROADCAST ORG., DEAN, of :

Susquehanna University, :

SUSQUEHANNA UNIVERSITY, :

DIRECTOR OF STUDENT :

ACTIVITIES, of Susquehanna :

University, PROFESSOR OF :

STUDENT COMMUNICATION :

SKILLS, of Susquehanna :

University, D.J. HOST a.k.a. :

BASHA-SHO & PROVE, D.J. :

CO-HOST SHANELL BRYAN :

a.k.a. #1 JAMAICAN, and :

ASSOCIATE DEAN OF :

STUDENTS, of Susquehanna :

University, :

:

Defendants. :

O R D E R

March 8, 2006

BACKGROUND:

Plaintiff commenced this action by filing a document construed as a

complaint by the clerk’s office with the Middle District of Pennsylvania on January

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31, 2006. On March 1, 2006, we granted plaintiff thirty days to file a current

application to proceed in forma pauperis and an authorization form or pay the

filing fee of $250.00 or the case would be dismissed. On March 3, 2006, Ibarra

complied with our order and filed a current motion for leave to proceed in forma

pauperis and a prisoner authorization form; both documents indicated the filing fee

was $250.00. Contemporaneous with the filing of the correct in forma pauperis

application and authorization forms, Ibarra filed an amended complaint with

exhibits. The clerk of the court construed the amended complaint as a motion to

amend the complaint.

For the following reasons we will grant Ibarra’s request to proceed in forma

pauperis, grant the motion to amend the complaint, and sua sponte dismiss the

federal law claims in the amended complaint for failure to state a claim on which

relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We will decline

to exercise our supplemental jurisdiction over the remaining state-law claims

pursuant to 28 U.S.C. § 1367(c)(3).

DISCUSSION:

Ibarra’s motion for leave to proceed in forma pauperis is granted. We will

also grant Ibarra’s motion to amend his complaint with the proposed complaint at

record document number 9, and therefore, the caption of the case now indicates the

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“Printer’s ink” statutes are laws that make false advertising a crime. See

United States v. Hunter, 459 F.2d 205, 213 (4th Cir. 1972).

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other named defendants.

I. Relevant Facts Alleged in Ibarra's Complaint

Plaintiff's complaint and amended complaint stem from a radio contest

which occurred on W.Q.S.U., Susquehanna University's college radio station. In

April 2005, plaintiff won an art contest conducted by disc jockeys on the station

and he now seeks recovery of his prize. Apparently part of the prize, or at least

one of the options, was a group photograph which would include ten of the girls

from one of the disc jockey's dorms. Nearly a year later, Ibarra has still not

received his prize.

II. Ibarra Fails to State A Claim On Which Relief Can Be Granted

Ibarra’s amended complaint cites to a litany of wide ranging legal theories in

support of his action against the defendants including but not limited to the federal

crime of bribing public officials, 18 U.S.C. § 201, section 2-201 of the Uniform

Commercial Code, section 12A of the Restatement (Second) of Torts, a provision

in the California Penal Code, antitrust law including the Clayton Act, the “Printers

Ink Statutes”,1

 42 U.S.C. § 1983, the First, Fifth, Seventh, Eleventh, and Fifteenth

Amendments of the United States Constitution, Article III of the Constitution,

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generally the "F.C.C. regulatory provisions of the Communications Satelite (sic.)

Act of 1962 and the Communications Act of 1934," as well as a variety of common

law torts and breach of contract claims.

We have subject matter jurisdiction over all civil actions that arise either (1)

under the Constitution, laws or treaties of the United States (federal question

jurisdiction), or (2) between citizens of different states where the matter in

controversy exceeds $75,000.00 (diversity jurisdiction). 28 U.S.C. §§ 1331, 1332.

Turning first to the issue of diversity jurisdiction. There is no allegation of

diversity in the complaint and no allegation as to citizenship of the parties. 

Furthermore, plaintiff does not seek damages in excess of $75,000.00. Therefore,

plaintiff's only ground for jurisdiction must come from a federal question.

Federal question jurisdiction is determined by the "well pleaded complaint

rule." Shadie v. Aventis Pasteur, Inc., 254 F. Supp. 2d 509, 516 (M.D. Pa. 2003)

(Vanaskie, C.J.) That rule provides that the face of plaintiff's complaint must make

it apparent that plaintiff's cause of action was created by federal law. Id. (citations

omitted). Plaintiff has pled federal claims in his complaint.

Because plaintiff is proceeding in forma pauperis, we may dismiss his

complaint at any time under 28 U.S.C. § 1915(e)(2)(ii) if we find that his

complaint fails to state a claim upon which relief can be granted. Now as for the

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merit of plaintiff’s federal claims, only two of his claims warrant a brief

discussion: (1) Ibarra’s claim under the civil rights statute, 42 U.S.C. § 1983; and

(2) his reference to the Communication Acts. 

A. Plaintiff's Section 1983 Claim

Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . .

42 U.S.C. § 1983.

In order for a plaintiff to prevail under 42 U.S.C. § 1983 he must establish two

elements: 1) that the conduct complained of was committed by a person acting

under color of state law; and 2) that the conduct deprived a person of rights,

privileges, or immunities secured by the Constitution or laws of the United States. 

Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).

As to the facts of this case, we take judicial notice that Susquehanna

University is a private educational institution. In taking that notice, the court is

certain that under no possible set of facts alleged by Ibarra will he be able to

establish that any of the defendants was acting under the color of state law. 

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Although the criteria to determine whether there is state action in a section 1983

claim “lack rigid simplicity,” Benn v. Universal Health System, 371 F.3d 165, 171

(3d Cir. 2004) (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 296 (2001)), Ibarra cannot allege facts that make one of the

private acting defendants a state actor. Cf. Brentwood Acad., 531 U.S. at 295

(noting various theories that allow for the finding of state action).

B. Plaintiff's Assertion that Defendants Violated the Communication Acts

We do note the significance of Ibarra’s allegations that he was wronged by

acts conducted on a radio station, and that radio is a heavily federally regulated

industry. Although Ibarra has cited generally to the Communications Acts, this

court is only aware of a regulatory provision that addresses radio contests and is

not aware of a private cause of action, and for the reasons below we will not imply

a private cause of action. See F.C.C. Broadcast Radio Services, 47 C.F.R. §

73.1216 ("A licensee that broadcasts or advertises information about a contest it

conducts shall fully and accurately disclose the material terms of the contest, and

shall conduct the contests substantially as announced or advertised."); see, e.g., In

re Isothermal Cmty. College, 2003 WL 22682096 (F.C.C.), 18 F.C.C.R. 23,932

(Nov. 14, 2003) (F.C.C. finding violation of licensee-conducted contest rule). 

Therefore, any failure to comply with the federal communications laws on the part

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of the defendants must be addressed by the F.C.C., the governing regulatory

agency, and not the courts.

In Cort v. Ash, 422 U.S. 66, 78-79 (1975), the United States Supreme Court

set forth a four-factor test to determine whether Congress intended an implicit

private cause of action in a statute. First, a district court must determine whether

the plaintiff is ‘one of the class for whose especial benefit the statute was enacted.’ 

Id. at 78 (citations omitted). Second, we must determine if there is legislative

intent, either explicit or implicit, to create or deny a remedy. Id. Third, we must

determine if it would be consistent with the overall regulatory scheme to imply a

remedy for the plaintiff. Id. Finally, we must determine if the remedy sought is

one traditionally relegated to state law, because if it is, then it would be

inappropriate for us to infer a cause of action based on federal law. Id.

Other courts examining the ‘public interest’ standard in section 309(a) of the

Communications Act of 1934, 47 U.S.C. § 151, et seq., (the Act which established

the regulatory scheme of the F.C.C.), found that the standard does not create a

private cause of action. Stoutenborough v. Nat. Football League, Inc., 59 F.3d

580, 583 (6th Cir. 1995); see also Schnapper v. Foley, 667 F.2d 102, 116 & n.8

(D.C. Cir. 1981) (gathering numerous cases where courts refused to imply a private

cause of action under the Communication Acts Public Interest Standard); but see

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Lorentz v. Westinghouse Elec. Corp., 472 F. Supp. 946, 950-51 (W.D. Pa. 1979)

(finding an implied private cause of action in the FCC’s Personal Attack Rule). 

The regulatory provision governing radio contests and cited above was created by

the FCC, not Congress. We find that there is no implied private cause of action to

sue for damages when a radio contest winner seeks to recover his prize under the

Communications Act of 1934. The remedy Ibarra seeks is traditionally relegated

to state law, either under a breach of contract theory for failure to award the prize,

or in light of Ibarra’s pleadings, possibly some theory in tort to recover for the

harms the disc jockeys caused him emotionally. Ibarra has no private cause of

action under the Communications Act of 1934.

Therefore, we dismiss the federal law claims set forth in Ibarra's amended

complaint because it is clear from the face of the amended complaint that he has

failed to state a federal claim upon which relief can be granted and that any further

amendment would be futile. See Miklavic v. USAir, 21 F.3d 551, 557-58 (3d Cir.

1994); 28 U.S.C. § 1915(e)(2)(B)(ii). Having found that Ibarra cannot state a

claim for relief based on federal law we will decline to exercise our supplemental

jurisdiction over any remaining state claims pursuant to 28 U.S.C. § 1367(c)(3).

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Ibarra’s motion for leave to proceed in forma pauperis is granted. (Rec.

Doc. No. 7.)

2. Ibarra’s motion to amend his complaint is granted. (Rec. Doc. No. 9.)

3. The federal law claims in Ibarra’s amended complaint are dismissed for

failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii). (Rec. Doc. No. 9.) We decline to exercise our supplemental

jurisdiction over any state-law claims pursuant to 28 U.S.C. § 1367(c)(3).

4. Record Document Number 13 construed by the clerk’s office as a motion

“for civil action claim - complaint” is denied as it is duplicative of Record

Document Number 9 which we construed as Ibarra’s amended complaint. 

5. The clerk is directed to close the case file.

6. Any appeal from this order would not be taken in good faith.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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