United States District Court, E.D. Pennsylvania
MARK S. FRAZIER Plaintiff
THE STATE OF PENN. THE CITY OF PHILA Defendants- U.S. MARK S. FRAZIER Plaintiff
CITY OF PHILADELPHIA THE COMMONWEALTH OF PA Defendants
I. Quinones Alejandro Judge.
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.
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."
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.
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).
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.
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
portable fireplace generation technique and operations
manual' alone is worth much more than what is being
demanded." (Am. Compl., ECF No. 5, at 4.)
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.)
Frazier seeks an injunction prohibiting future violations of
his rights, an investigation, and millions of dollars in
STANDARD OF REVIEW
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).
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. ...