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Frazier v. State

United States District Court, E.D. Pennsylvania

December 5, 2017

MARK S. FRAZIER Plaintiff
v.
THE STATE OF PENN. THE CITY OF PHILA Defendants- U.S. MARK S. FRAZIER Plaintiff
v.
CITY OF PHILADELPHIA THE COMMONWEALTH OF PA Defendants

          MEMORANDUM

          Nitza I. Quinones Alejandro Judge.

         Plaintiff Mark S. Frazier ("Plaintiff or "Frazier") recently filed two complaints in this Court against the City of Philadelphia and the Commonwealth of Pennsylvania, (collectively, "Defendants") which were based on alleged copyright violations and an allegedly unlawful arrest. These complaints were dismissed with leave to file an amended complaint. Thereafter, Plaintiff filed two complaints, both of which are currently before this Court. For the following reasons, Mr. Frazier's complaints are dismissed with an additional opportunity or leave to amend.

         I. FACTS[1]

         Approximately two months ago, Plaintiff initiated two civil actions in this court. The first, docketed as Frazier v. City of Philadelphia, E.D. Pa. Civ. A. No. 17-4597, raised copyright claims based on Mr. Frazier's allegations that in 2016, Defendants "on at least (3) known occasions interfered with [his] interest in and ownership of copyrighted materials." (Compl. at 3.) He also contended that "[t]he city used police to cite and arrest [him], wrongfully separating him from his wares." (Id.)

         Three days after Mr. Frazier filed Civil Action Number 17-4597, he filed a second complaint, docketed as Frazier v. City of Philadelphia, E.D. Pa. Civ. A. No. 17-4608. In that complaint, Mr. Frazier alleged that in 2012, he was "wrongfully evicted from premises which he returned to 3 years ago after giving notice and with others present (2014)." (Compl. at 3.) He also contended that in April of 2016, he was arrested "on the premises while he was returning w/o probable cause." (Id.) Mr. Frazier states that he was taken to the Curran-Fromhold Correctional Facility, where he was incarcerated for four (4) days. (Id.) Mr. Frazier sought to proceed in forma pauperis in both cases.

         This Court granted Mr. Frazier leave to proceed in forma pauperis and dismissed his complaints for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), with leave to amend. This Court concluded that Mr. Frazier failed to state a claim in Civil Action Number 17-4597, because he "fail[ed] to set forth facts regarding what materials [he] has allegedly copyrighted and how the defendants violated that copyright." (Civ. A. No. 17-4597, Oct. 20, 2017 Mem., ECF No. 2, at 2.) Mr. Frazier did not state a claim in Civil Action Number 17-4608 because the Commonwealth of Pennsylvania is not subject to suit under 42 U.S.C. § 1983, and Mr. Frazier had not alleged that a municipal policy or custom led to the violations of his rights so as to state a claim against the City of Philadelphia based on his allegedly wrongful arrests. See Frazier v. City of Phila, No. CV 17-4608, 2017 WL 4764617, at *1 (E.D. Pa. Oct. 20, 2017).

         The Clerk of Court was instructed to send Mr. Frazier blank form complaints bearing the civil action number for each case so that Mr. Frazier could file amended complaints. It appears that Mr. Frazier completed the forms but crossed out those numbers, so that his amended complaints were instead docketed as new civil actions, See Frazier v. City of Philadelphia, E.D. Pa. Civ. A. No. 17-5352 and Frazier v. City of Philadelphia, E.D. Pa. Civ. A. No. 17-5361. The Court closed Civil Action Number 17-5352 and directed the Clerk of Court to docket the complaint in that case as Plaintiffs amended complaint in Civil Action Number 17-4597. Civil Action Number 17-5361 remains pending.

         The Amended Complaint in Civil Action Number 17-4597 raises claims against the City of Philadelphia and the Commonwealth of Pennsylvania pursuant to the Copyright Act, the constitution generally, and the Uniform Commercial Code. Mr. Frazier alleges that in 2011, 2013, and 2016, he was separated from his copyrighted "wares" when his laptop computer was impounded, apparently by the police in connection with his arrest. He does not fully describe the works in question, but alleges that '"Anti-Recessionary-do-it-yourself-in-minutes portable fireplace generation technique and operations manual' alone is worth much more than what is being demanded." (Am. Compl., ECF No. 5, at 4.)

         The Complaint in Civil Action Number 17-5361 raises claims against the City of Philadelphia and the Commonwealth of Pennsylvania, apparently pursuant to 42 U.S.C. § 1983, based on arrests and seizures from 2011 through 2017. Mr. Frazier alleges that he is a product designer for a company he founded and that "Defendants in 2012 via color of law sought to obtain plaintiffs IP." (Compl. ECF No. 1-1, at 3.) He further alleges that "[a]fter doing this and seeing what plaintiffs titles consisted of, then plaintiffs storage unit showed signs of tampering." (Id.)

         Mr. Frazier seeks an injunction prohibiting future violations of his rights, an investigation, and millions of dollars in damages.

         II. STANDARD OF REVIEW

         This Court grants Mr. Frazier leave to proceed in forma pauperis because it appears that he is not capable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the court to dismiss the complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). "[M]ere conclusory statements do not suffice." Id. As Mr. Frazier is proceeding pro se, this Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

         III. DISCUSSION

         Neither of Mr. Frazier's complaints states a plausible claim for relief. As previously explained to Mr. Frazier, in order to state a claim of copyright infringement, he must allege ownership of a valid copyright, and that Defendants conducted unauthorized copying of protectable elements of the copyrighted work. Tanikumi v. Walt Disney Co., 616 Fed.Appx. 515, 519 (3d Cir. 2015); see also (Civ. A. No. 17-4597, Oct. 20, 2017 Mem., ECF No. 2, at 2.). Although Mr. Frazier suggests his intention to raise a copyright claim, he has not described the copyrighted works in question other than providing the title of one item. More importantly, he does not actually appear to be claiming that Defendants copied protected elements of his copyrighted works. ...


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