United States District Court, W.D. Pennsylvania
CHARLES L. SIMS, Plaintiff,
VIACOM, INC., Defendant.
TERRENCE F. McVERRY, District Judge.
This case has a tortured background. Since 2009, Plaintiff, Charles Sims has filed three separate lawsuits against Defendant, Viacom, Inc., alleging copyright infringement and other related claims. All three have lawsuits been dismissed with prejudice,  and Plaintiff has previously been "advised and warned" by this Court not "to continue to file lawsuits against this Defendant which arise out of the same underlying facts." Despite those words of caution, on August 15, 2014, Sims filed a motion for leave to proceed in forma pauperis ("IFP"), with an attached Complaint that rehashed most of the allegations in his prior suits (ECF No. 1). After evaluating Sims' financial status and determining that he was unable to pay the requisite filing fee, the Court granted his motion to proceed IFP (ECF No. 2). For the following reasons, however, the Court will dismiss his Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
There is no need to set forth all of Sims' allegations at length. It suffices to say that he created and copyrighted a "treatment" for a reality television show dubbed "Ghetto Fabulous, " which he and a collaborator, Allison Jordan, pitched to Viacom, and he believes that Viacom stole his idea for the show.
The protracted procedural history between the parties is, however, worthy of more consideration. On January 23, 2009, Sims and Jordan initiated a lawsuit against Viacom and two other companies by writ of summons in the Philadelphia County Court of Common Pleas. Six months later, they filed a verified complaint, in which they contended that Viacom "stole Ghetto Fabulous, '" and asserted claims for breach of express and implied contracts, fraud, negligent misrepresentation, and conversion. Defendants timely removed the case to the United States District Court for the Eastern District of Pennsylvania, and then moved to dismiss the claims. The district court granted the motion to dismiss the fraud and conversation claims, holding, inter alia , that the conversion claim was preempted by the federal Copyright Act. The court permitted the remaining claims to proceed to discovery. Following the close of discovery, Viacom moved for summary judgment on the ground that the claims for breach of express and implied contracts were barred by the Submission Release that had been signed by Jordan. The district court found that Jordan had signed the Submission Release "on behalf of herself and Sims, " and granted summary judgment in favor of Viacom.
On June 7, 2011, Sims, pro se , filed a second suit against Viacom, this time in the Western District of Pennsylvania. The Complaint basically repeated the same allegations as those alleged in his prior lawsuit; however, he purported to proceed under new legal theories: copyright infringement, violations of the Digital Millennium Copyright Act ("DMCA"), and unjust enrichment. Viacom moved to dismiss, and the Court granted the motion, holding that the copyright and DMCA claims were time-barred, or, alternatively, were subject to dismissal because Sims had never registered his treatment with the copyright office. In addition, the Court held that the unjust enrichment claim was preempted by federal copyright law. Sims did not appeal.
Instead, on February 10, 2012 - just ten days after his claims were dismissed in Sims II - Sims filed yet another Complaint against Viacom in the Western District of Pennsylvania. In the third action based on Viacom's alleged use of his "Ghetto Fabulous" treatment, Sims agains alleged copyright infringement, violation of the DMCA, and unjust enrichment for the 2009 episodes of "Charm School" and another show, "From G's to Gents." Once again, Viacom moved to dismiss, arguing that the claims were barred by res judicata, time-barred under the terms of the Submission Release, and, in any event, entirely without merit. Chief Magistrate Judge Lenihan recommended that the motion be granted on the basis of res judicata, and the Court agreed, adopting the Magistrate Judge's report and recommendation as the opinion of the Court on January 29, 2013. Plaintiff then appealed to the Court of Appeals for the Third Circuit, which affirmed this Court's decision in a non-precedential opinion on November 14, 2013, after having found that each of Plaintiff's claims were barred by res judicata.
On August 15, 2014, Plaintiff filed his latest Complaint against Viacom. This action contains virtually the same allegations as the previous three. In a preemptive attempt to evade the application of res judicata, however, Plaintiff now alleges that
18. Throughout the entire appeal process with the Sims III lawsuit still pending, Viacom failed to take seasons one (1) and two (2) of the alleged infringing show "From G's to Gents" off of its website, thus creating new successive violations of alleged infringement according to Copyright law. In contrast, the show "Charm School" was never rebroadcasted on Viacom's website pending litigation or post litigation. The present lawsuit is in regards to only the recent Internet rebroadcast of seasons one (1) and two (2) of the show "From G's to Gents." These current rebroadcasted episodes could not have been included in any of the previous Sims ' lawsuits.
Compl. ¶ 18 (ECF No. 4).
II. Standard of Review
A district court must use a "two-step analysis in evaluating motions to proceed under § 1915." Roman v. Jeffes , 904 F.2d 192, 194 n.1 (3d Cir. 1990). The court must first evaluate the plaintiff's "financial status and determine whether (s)he is eligible to proceed in forma pauperis under § 1915(a)." Id. The determination of whether to grant or deny IFP status is "based on economic criteria alone." Id. Second, the court must analyze the complaint "under § 1915(d) to determine whether it is frivolous." Id. A complaint is frivolous only if it is "based on an indisputably meritless legal theory" or if its "factual contentions are clearly baseless." Id. at 195 (citing Neitzke v. Williams , 490 U.S. 319 (1989)). The Court of Appeals has also made clear, however, that "res judicata is a proper basis for dismissal under 28 U.S.C. § 1915(e)(2)(B)." Gimenez v. Morgan Stanley DW, Inc. , 202 F.Appx. 583, 584 (3d Cir. 2006) (citing Gleash v. Yuswak , 308 F.3d 758, 760-61 (7th Cir. 2002)). In making this determination, the Court must liberally construe the allegations in the complaint. Higgs v. Att'y Gen., 655 F.3d 333, 339-40 (3d Cir. 2011).
The Court granted Plaintiff's motion to litigate IFP based solely on his financial status, as set forth in his affidavit. Upon a review of his Complaint, however, it is clear that the claims alleged therein are barred by res judicata, and, thus, the Complaint ...