United States District Court, E.D. Pennsylvania
MARK S. FRAZIER, Plaintiff,
THE CITY OF PHILADELPHIA, et al., Defendants.
Honorable Nitza I. Quinones Alejandro Judge.
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.
FACTS AND PROCEDURAL HISTORY
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."
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.
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).
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
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
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 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
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.
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,
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 ...