Solstein v. Mirra

488 F.Supp.3d 86

Eric H. SOLSTEIN, Plaintiff,

v.Ernesto MIRRA, et al., Defendants.

No. 18-CV-9875 (KMK)

United States District Court, S.D. New York.

Signed September 23, 2020

Eric H. Solstein, Jackson Heights, NY, Pro se Plaintiff.

Christine M. Piracci, Esq., David L. Posner, Esq., McCabe & Mack LLP, Poughkeepsie, NY, Counsel for Defendant Thomas Senator.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Eric H. Solstein ("Plaintiff") brings this Action against Ernesto Mirra ("Mirra") and Thomas Senator ("Senator" or "Moving Defendant"; with Mirra, "Defendants"), asserting claims of defamation and, specifically, libel per se. (See Second Am. Compl. ("SAC") (Dkt. No. 31).) Before the Court is Moving Defendant's Motion To Dismiss the Second Amended Complaint ("SAC"), pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion"). (See Moving Def.’s Not. of Mot. (Dkt. No. 34).) For the reasons to follow, Moving Defendant's Motion is denied.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's SAC, the exhibits attached to it, and Plaintiff's Response to the Motion, and are assumed to be true for the purpose of resolving the instant Motion.¹

On January 12, 2015, after a hearing in family court in New York, Plaintiff received an order "obliging [him] to vacate [his] family residence in Manhattan and relocate to what had served as his family's summer house" in Bethel, New York. (SAC ¶ 1.) Thereafter, Plaintiff began to "engage with local residents for discussion and debate" "[f]or [his] enjoyment and commitment to progressive politics" on a Facebook page titled "Sullivan County Uncensored," which Plaintiff states was a page "seemingly dedicated to ‘free speech.’ " (Id. ¶¶ 2–3.) Plaintiff also describes the page as "oriented towards a right-wing political perspective." (Pl.’s Mem. in Opp'n to Mot. ("Pl.’s Mem.") 3 (Dkt. No. 45).) This Facebook page has over 10,000 subscribers, which, according to Plaintiff, comprises approximately 10 percent of the total population of Sullivan County. (SAC ¶ 2.) The page is "edited, administered, moderated, and under the complete editorial control" of Larry Gold, a "Sullivan County attorney." (Id. ¶ 3.) On an unknown date, Plaintiff was removed from "Sullivan County Uncensored" and stopped participating in it. (Id. ¶ 4.) Plaintiff instead began to "spen[d] [his] time" on a page titled "Sullivan County Post," (id. ), which was "notably non-partisan in its political orientation," (Pl.’s Mem. 4). He alleges that Defendants "followed [him]" to this page, and "encourag[ed] others to join in." (SAC ¶ 4.)

On October 2, 2017, Plaintiff was arrested for assault. (Id. ¶ 5.) On October 9, 2017, the Village of Liberty Police Department posted a press release that included Plaintiff's "booking photograph" on their Facebook page. (Id. )² "Shortly after" this post, "the local pages exploded with news of [Plaintiff's] arrest." (Pl.’s Mem. 4.) For example, Plaintiff's photograph was "passed around and turned into insulting memes ..., with additional commentary added." (Id. )

On October 9, 2017, Erik Rhulen ("Rhulen"), a licensed realtor, posted a photograph that he took of police cars in Plaintiff's driveway on Facebook. (SAC ¶ 6; id. Ex. A ("Oct. 9, 2017 Post A") (Dkt. No. 31).) Along with the photograph, Rhulen posted the comment, "I have seen cops in [Plaintiff's] driveway numerous times. They were there for a heroin[ ] overdose. I hear he is a known drug dealer." (SAC ¶ 6; Oct. 9, 2017 Post A.) Senator replied, "[W]ow. Really!?," and, "Are you sure they are ‘his’ children[,] or is he running an underage crack whore brothel?" (Id. ; SAC Ex. B ("Oct. 9, 2017 Post B") (Dkt. No. 31).) According to Plaintiff, the police have never come to his property over fights with his children, and he has never dealt drugs. (SAC ¶ 6.) Rhulen also posted a comment that stated "Market Value $271,000," with an image that included Plaintiff's house, his address, and "various data to support that valuation." (Id. ¶ 7; Oct. 9, 2017 Post B.) According to Plaintiff, Rhulen had previously expressed interest in representing Plaintiff's property, and several months prior to this post, he had sold a "nearly identical property" that abutted Plaintiff's home for over $580,000. (SAC ¶ 7.) Senator commented on Rhulen's post, writing, "Yeh [sic], I guess the property value goes down the tubes when it's known the house you want to purchase is from a child-abusing crack dealing arshole [sic] ... who wants to live there?" (Id. ¶ 8; Oct. 9, 2017 Post B.) According to Plaintiff, he has never dealt crack or abused children. (SAC ¶ 8.)³ Senator also posted in the same string of comments what appears to be a photo of Plaintiff's mugshot with the comment, "Found this in the [Sullivan County] group hahahahahaha[.] Crack head Slasher." (SAC Ex. C ("Oct. 9, 2017 Post C") (Dkt. No. 31).) Plaintiff alleges that these exchanges took place on the "Sullivan County Post" Facebook page. (Pl.’s Mem. 9.)

Plaintiff "repeatedly attempted" to have Gold "edit and control" the Facebook page he controlled. (SAC ¶ 9.)⁴ However, on October 9, 2017, Gold wrote on Facebook, "The lesson to learn is that if you run your piehole on Facebook, don't succumb to crack addiction. Allegedly. Not cool when the crack whore you're in love with is caught with ‘Pepe’ in Honduras at 5:00 a[.]m. Allegedly. Pathetic that he has to call his wife, the lady he's allegedly cheating on, and ask her to bail him out. Allegedly. This is karma in the truest sense. Maybe he will learn a lesson to shut the fuck up." (Id. ) Plaintiff represents that he is not addicted to crack. (Id. )⁵

Also on October 9, 2017, Mirra impersonated Plaintiff by "stealing [his] identity" and creating Facebook pages under his name that "implicate[d] [Plaintiff] as a predator of children." (Id. ¶ 10.) Mirra did so "in collaboration with ... Senator." (Id. ) Mirra also "used a variety of aliases, including: James DelGado, Joey Arturo, [and] Sherry Lando" while on Facebook. (Id. ¶ 10 (record citations omitted).) Under the name James DelGado, Mirra wrote, "He done fucked up with me. He thought I was some good ol[’] boy that was lying about everything.... He got real [sic] quiet soon after accusing me too because it[’s] my understanding they told him he needs to cut the shit. They already knew me but he [is] the sex trafficking falsifying phony fool." (Id. ) Additionally, Mirra posted under the same name, "He's also a chester to [sic] what I hear." (Id. ) According to Plaintiff, "chester" is "widely understood slang for child molester." (Id. )

Plaintiff alleges that generally, over the course of two years prior to October 9, 2017, he was "constantly defamed" and by October 2017, had blocked over 60 residents of Sullivan County and group members of "Sullivan County Uncensored" on Facebook. (Id. ¶ 11.) During this time, Plaintiff received repeated threats of violence over the internet, "feces [sent] via the USPS," "direct threats" in his mailbox, and text messages that contained "vulgar hate and anti-Semitism." (Id. ) Plaintiff was also "doxed," which he describes as "internet slang for having one's address or personal photos and information publicly revealed." (Id. ) Plaintiff sought assistance from the New York State "Trooper barracks" in the Village of Liberty and was referred to an officer in charge of cybercrime. (Id. ) Plaintiff alleges that this officer was "entirely disinterested" and did not investigate his allegations. (Id. ) According to Plaintiff, he continues to undergo "abuse and defamation." (Id. ¶ 12.) For example, in October 2019, Plaintiff was called a "pedophile" during a "discussion of candidates for County Judge"; he has suffered "repeated traffic stops by [New York State] Troopers in the weeks before [his] decision to accept [a] plea agreement [from the District Attorney]"; and his "then[-]girlfriend, Megan Dowe," who would have been a "witness in [his] case," was subject to "repeated stops and arrests." (Id. ) Plaintiff alleges that the deputies at the Sullivan County Sheriff's Office and the "Bethel Constable" made a "concerted effort" to harass him and advise him not to use his local post office and P.O. box "for fear [he] might molest the 20 year old woman who worked there." (Id. ) Plaintiff further contends that James Farrell ("Farrell"), the Sullivan County District Attorney, has been influenced by complaints and reports that his office has received from "citizens outraged at the crimes [Plaintiff] supposedly committed," and that this "gossip" has "influenced [Plaintiff's] prosecution in an unfair manner," by, for example, delaying the resolution of his "minor charge" for two years. (Id. ¶ 13.) Farrell has also "assum[ed] direct control of [Plaintiff's] recent assault charge." (Id. ) Finally, Plaintiff generally alleges that Defendants have "conspired with persons of interest" over text message "by contacting third parties," and that they "creat[ed] a shared fake narrative and set of practices that allowed them to work in concert without external communication." (Id. ¶ 15.)

Plaintiff claims that as a result of Defendants’ posts, he has been "exposed to public contempt, ridicules, [and] aversion," and "right-thinking people" now have an "evil opinion" of him. (Id. ¶ 14.) Plaintiff also states that he has been "deprived of ... friendly intercourse in society." (Id. ) Plaintiff seeks a total of $2,000,000 from each Defendant in damages. (Id. at 12.)

B. Procedural Background

Plaintiff filed his initial Complaint on October 24, 2018. (Compl. (Dkt. No. 1).) At the time, Plaintiff was incarcerated at Sullivan County Jail, (see id. ), from which he has since been released. By Order dated October 29, 2018, Chief Judge Colleen McMahon ("Judge McMahon") directed Plaintiff to pay the filing fee or submit an application to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). (Dkt. No. 3.) On November 26, 2018, the Court...