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Frazier v. The City of Philadelphia

United States District Court, E.D. Pennsylvania

April 29, 2018

MARK S. FRAZIER, Plaintiff,
v.
THE CITY OF PHILADELPHIA, et al., Defendants.

          MEMORANDUM

          Honorable Nitza I. Quinones Alejandro Judge.

         Currently before the Court is Plaintiff Mark S. Frazier's Second Amended Complaint in which he primarily asserts claims of copyright infringement, as well as constitutional claims based on a series of arrests. For the following reasons, the Second Amended Complaint is DISMISSED, with prejudice.

         I. FACTS AND PROCEDURAL HISTORY[1]

         In October of 2017, Mr. Frazier 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 against Defendants City of Philadelphia and the Commonwealth of Pennsylvania (collectively, "Defendants") 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 against the same Defendants, 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 stated that he was taken to the Curran-Fromhold Correctional Facility, and 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 pursuant to 28 U.S.C. § l9l5(e)(2)(B)(ii) dismissed his complaints for failure to state a claim, 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. Mr. Frazier completed the forms but crossed out those numbers so 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. This Court closed Civil Action Number 17-5352 and directed the Clerk of Court to docket the complaint in that case as Mr. Frazier's Amended Complaint in Civil Action Number 17-4597.

         The Amended Complaint in Civil Action Number 17-4597 purports to raise claims against Defendants City of Philadelphia and the Commonwealth of Pennsylvania pursuant to the Copyright Act, the Constitution generally, and the Uniform Commercial Code. Mr. Frazier alleged 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 did not fully describe the works in question but, instead, alleged 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 purports to raise claims against Defendants 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 alleged 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 alleged that "[a]fter doing this and seeing what plaintiffs titles consisted of, then plaintiffs storage unit showed signs of tampering." (Id.)

         By Order and accompanying Memorandum dated December 5, 2017, this Court dismissed Mr. Frazier's Complaint in Civil Action Number 17-5361 and his Amended Complaint in Civil Action Number 17-4597 for various reasons. First, the Court informed Mr. Frazier that he had again failed to state a copyright infringement claim because he had not described any copyrighted works or alleged that the Defendants copied protected elements of those works. Second, the Court explained that the Commonwealth of Pennsylvania was not subject to liability under § 1983, and that the City could only be liable under § 1983 based on a municipal policy or custom, which Mr. Frazier had not pled. Third, the Court observed that Mr. Frazier had not stated a Fourth Amendment claim based on his arrests, imprisonment, or the seizure of his property because he had not alleged sufficient facts establishing a constitutional violation. Mr. Frazier was again given leave to file a second amended complaint addressing all of his claims in Civil Action Number 17-4597.

         In his Second Amended Complaint, titled "Complaint: For Infringement of Copyright, Unfair Competition and Unfair Trade Practices, " Mr. Frazier names as party defendants Officer De Carlo, the 9th District Police Station, the Community College of Philadelphia, All City Self Storage, the City of Philadelphia, the Commonwealth of Pennsylvania, and one-hundred (100) John Doe defendants. Mr. Frazier alleges that he is the owner of copyrights on "several original works of authorship in: business, marketing, graphics, software, heating, lighting, motivational lyrics and animation videos." (Sec. Am. Compl., ECF No. 12, at 2, ¶ 2.) He claims that "[i]n 2011, 2013, 2015 and 2016 defendant infringed said copyrights by taking without necessity or probable cause plaintiffs titles and work products into their possession." (Id. at 3, ¶ 7.)

         In that regard, Mr. Frazier contends that:

[a]fter 7/24/11 and . . . continuously since, defendants) have converted plaintiff [sic] intellectual property titles and plaintiff believes also that some of the proceeds were used to harm him by: Deliberate trespassing, informants in pursuit of plaintiff, damaging of plaintiff [sic] equipment, obstruction of both justice and emergency services, mail fraud, cutting down trees, stealing plaintiff [sic] identification cards, not investigating after flash drive containing copyrighted material ...

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