Morton v. Critterden ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 PARIS MORTON, Case No. 2:23-cv-00210-GMN-EJY 4 Plaintiff, ORDER and 5 v. REPORT AND RECOMMENDATION 6 JAMES E. CRITTERDEN, 7 Defendant. 8 9 This matter comes before the Court on Plaintiff’s Complaint and application to proceed in 10 forma pauperis. ECF Nos. 1-2, 4. The Court has also reviewed Plaintiff’s Motion for Appointment 11 of Counsel. ECF No. 1-3. 12 I. IN FORMA PAUPERIS APPLICATION 13 On February 9, 2023, Plaintiff, an inmate, filed an application to proceed in forma pauperis. 14 ECF No. 1. The application was incomplete and denied without prejudice. ECF No. 3. On March 15 3, 2023, Plaintiff filed a complete in forma pauperis application (ECF No. 4), which is granted. 16 II. SCREENING THE COMPLAINT 17 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 18 under 28 U.S.C. § 1915(e)(2). Under the Prison Litigation Reform Act, a federal court must dismiss 19 a prisoner’s claim if the action “is frivolous or malicious, fails to state a claim on which relief may 20 be granted, or seeks monetary relief against a defendant who is immune from such relief.” Id. 21 However, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 22 696, 699 (9th Cir. 1990). 23 The standard for dismissing a complaint for failure to state a claim upon which relief can 24 be granted is established by Federal Rule of Civil Procedure 12(b)(6). The court applies the same 25 standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When 26 a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 27 complaint with directions to cure its deficiencies unless it is clear from the face of the complaint that 1 the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 2 1995). 3 Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. Lab. 4 Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). In making this determination, the court treats 5 all material factual allegations as true and construes these facts in the light most favorable to the 6 non-moving party. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). While the standard 7 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must plead more than 8 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic 9 recitation of the elements of a cause of action is insufficient. Id. 10 Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the 11 prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal 12 conclusions that are untenable as well as claims based on fanciful factual allegations (e.g., fantastic 13 or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. 14 Block, 932 F.2d 795, 798 (9th Cir. 1991). 15 III. DISCUSSION 16 A. Background. 17 Plaintiff contends in her Complaint that she is engaged in the commercial publishing industry 18 and reproduces, distributes, and sells copyrighted literary compositions and published works. ECF 19 No. 1-2 at 2. Plaintiff asserts that sometime in June 2022 Defendant stole a manuscript written by 20 Plaintiff in violation of Plaintiff’s rights under 17 U.S.C. § 106(1) and (3) to reproduce and distribute 21 the manuscript. Id. Plaintiff argues that Defendant has committed direct and contributory 22 infringement of Plaintiff’s work and is liable for damages under the theory of vicarious liability. Id. 23 Plaintiff contends that she and Defendant had an understanding that required Defendant to 24 retain possession of Plaintiff’s life memoir, titled “The World of Paris,” but Defendant would return 25 the manuscript to Plaintiff when it was ready for publication. Id. at 3. Plaintiff says that during the 26 summer of 2022, she repeatedly attempted to communicate with Defendant to secure the return of 27 her manuscript to no avail. Id. at 3-4. Plaintiff contends her life has been the subject of much media 1 This chance for profit, according to Plaintiff, is the reason Defendant refuses to return the 2 manuscript. Id. 3 Instead of helping Plaintiff publish the memoir, as he promised to do, Plaintiff accuses 4 Defendant of sharing excerpts of the manuscript over social media and allowing third parties to 5 publish details of the contents. Id. at 5. Plaintiff avers that these actions constitute direct 6 infringement, as Defendant and the parties were able to profit financially from the disclosure of 7 Plaintiff’s proprietary information. Id. Plaintiff contends she has obtained verification through 8 conversations with these third parties that Defendant intended all along to profit from the 9 unauthorized publication of Plaintiff’s memoir. Id. at 5-7. 10 Because Defendant stole a manuscript that was owned by Plaintiff, ownership Defendant 11 allegedly acknowledged in an email to counsel for Plaintiff, and has prevented Plaintiff from 12 reproducing and distributing her manuscript, Plaintiff contends Defendant is liable for damages 13 under 17 U.S.C. § 501. Id. at 8-9. Plaintiff further accuses Defendant of not engaging in the fair use 14 of her copyrighted work, reiterating her allegations that he illegally stole, and disseminated details 15 of her memoir. Id. at 11-12. Plaintiff argues that the four factors under 17 U.S.C. § 107 used to 16 analyze whether Defendant’s dissemination of Plaintiff’s work constitutes fair use weigh in favor of 17 a finding that Defendant did not engage in a fair use of Plaintiff’s memoir.1 Id. at 12-20. 18 Plaintiff argues that because Defendant knowingly encouraged and assisted third parties in 19 infringing upon the rights of Plaintiff regarding her memoir, Defendant should be held liable under 20 a theory of contributory infringement. Id. at 21-22. Plaintiff also avers that Defendant is vicariously 21 liable for the copyright infringement of Plaintiff’s memoir that was committed by the third parties 22 because he stood to gain financially each time disclosures were made and because Defendant was 23 able to supervise his social media account and its content and chose not to do so. Id. at 23-25. 24 As a result of this alleged copyright infringement, Plaintiff seeks an injunction preventing 25 Defendant from any further infringement of Plaintiff’s work, monetary damages of not more than 26 $150,000, and criminal charges against Defendant under 18 U.S.C. § 2319. 27 1 Plaintiff cites the four factors as the purpose and character of the use of the memoir, the nature of the memoir, 1 B. The Court Recommends Dismissal Without Prejudice of Plaintiff’s Complaint. 2 Under federal law, copyright protection applies to “original works of authorship fixed in any 3 tangible medium of expression,” including “literary works” and “dramatic works.” 17 U.S.C. § 4 102(a). “An author gains exclusive rights in her work immediately upon the work's creation, 5 including rights of reproduction, distribution, and display.” Fourth Estate Public Benefit Corp. v. 6 Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019) (internal quotation marks omitted), citing 17 7 U.S.C. § 106; Eldred v. Ashcroft, 537 U.S. 186, 195 (2003). 8 17 U.S.C. § 501 authorizes copyright owners to bring an action to enforce their exclusive 9 rights against copyright infringement. Such an action, however, cannot “be instituted until 10 preregistration or registration of the copyright claim has been made [with the United States 11 Copyright Office] in accordance with” Title 17. 17 U.S.C. §411(a). “[A]lthough an owner's rights 12 exist apart from registration, … registration is akin to an administrative exhaustion requirement that 13 the owner must satisfy before suing to enforce ownership rights….” Fourth Estate, 139 S. Ct. at 14 887. If a complaint for copyright infringement fails to include an allegation that the plaintiff 15 registered the copyright, then the complaint must be dismissed. Roblox Corp. v. WowWee Group 16 Ltd., Case No. 22-cv-04476-SI, 2023 WL 2433970, at *4 (N.D. Cal. Mar. 9, 2023). A complaint 17 may be amended to allege that a copyright was registered before the case was initiated. Id. citing 18 Izmo, Inc. v. Roadster, Inc., Case No. 18-cv-06092-NC, 2019 WL 2359228, at *1-2 (N.D. Cal. June 19 4, 2019). A plaintiff may not register a copyright after commencing an infringement action and then 20 file an amended complaint alleging that he or she has complied with 17 U.S.C. § 411. Id. citing id. 21 While Plaintiff’s Complaint contains numerous factual allegations relating to potential 22 claims of copyright infringement under 17 U.S.C. § 501, the Complaint does not contain any 23 allegation that Plaintiff registered a copyright for her memoir with the United States Copyright 24 Office. Consequently, Plaintiff has not complied with 17 U.S.C. § 411, and her Complaint must be 25 dismissed without prejudice but with leave to amend. Any amended complaint must include 26 27 1 allegations that Plaintiff registered a copyright of her memoir with the Copyright Office prior to the 2 commencement of the instant lawsuit.2 3 C. The Court Recommends Dismissal Without Prejudice of Plaintiff’s Motion for Appointment of Counsel. 4 5 Plaintiff requests the Court appoint pro bono counsel because the issues in this case are 6 complex, she cannot adequately present the claims without assistance of counsel, and she is unable 7 financially to retain private counsel. ECF No. 1-3 at 2. Plaintiff asserts that video and phone records 8 must be gathered and an expert must be retained to discuss the economic impact of Defendant’s 9 actions on Plaintiff. Plaintiff seeks a protective order that requires return of certain emails between 10 Defendant and Plaintiff’s counsel in a separate criminal case. Id. at 3-4. Plaintiff contends she does 11 not know how to execute any of these tasks. Id. at 4. Plaintiff says she is not familiar with 12 intellectual property law and this lack of knowledge could make it difficult for her to apply the law 13 to the facts of this case. Id. at 4-5. 14 Federal district courts lack authority to require counsel to represent indigent plaintiffs in civil 15 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 306 (1989). A court may request the 16 voluntary assistance of counsel for a plaintiff proceeding in forma pauperis but only under 17 exceptional circumstances. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 18 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 19 circumstances requires the court to evaluate together the plaintiff’s likelihood of success on the 20 merits and the plaintiff's ability to articulate his or her claims. See Wilborn v. Escalderon, 789 F.2d 21 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 22 23 2 If Plaintiff seeks to assert claims under state law arising from the facts pleaded in her instant Complaint, she 24 must demonstrate that federal preemption of state and common law copyright causes of action does not apply. See 17 U.S. § 301(a). There is a two-part test used in the Ninth Circuit to determine whether § 301 preempts a state law claim. 25 “First, we decide whether the subject matter of the state law claim falls within the subject matter of copyright as described in 17 U.S.C. §§ 102 and 103. … Second, assuming it does, we determine whether the rights asserted under state law are 26 equivalent to the rights contained in 17 U.S.C. § 106, which articulates the exclusive rights of copyright holders.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) (internal quotation marks and citations omitted). To 27 survive preemption, a state law claim must contain an “extra element” that makes the right asserted qualitatively different 1 Plaintiff’s lack of adequate legal knowledge and the potential complexities of litigation, 2 concerns shared by many pro se plaintiffs, do not rise to the standard of exceptional circumstances. 3 Garcia v. Las Vegas Metropolitan Police Dep’t, Case No. 2:17-cv-02504-APG-BNW, 2020 WL 4 3404730, at *3 (D. Nev. June 19, 2020); Zamaro v. Moonga, 656 Fed. Appx. 297, 299 (9th Cir. 5 2016). “While any pro se … [Plaintiff] … would likely benefit from services of counsel, that is not 6 the standard this court must employ in determining whether counsel should be appointed.” Anderson 7 v. Nev., Case No. 3:16-cv-00056-RCJ-WGC, 2017 WL 11479417, at *2 (D. Nev. Nov. 22, 2017) 8 (internal citation omitted). “So long as a pro se litigant is able to articulate his claims against the 9 relative complexity of the matter, the exceptional circumstances that might require the appointment 10 of counsel do not exist.” Rimer v. State of Nevada ex rel. Nevada Dep’t of Corrections, Case No. 11 2:14-cv-00889-RFB-CWH, 2015 WL 51014, at *2 (D. Nev. Jan. 2, 2015) (internal citation and 12 quotation marks omitted) (emphasis in original). 13 Here, a review of Plaintiff’s Complaint indicates that she currently fails to state a claim. 14 Under these circumstances, appointment of pro bono counsel would be premature. The Court denies 15 Plaintiff’s Motion for Appointment of Counsel without prejudice. 16 IV. ORDER 17 IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis (ECF 18 No. 4) is GRANTED. 19 IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF No. 20 1-3) is DENIED without prejudice. 21 V. RECOMMENDATION 22 IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1-2) be dismissed 23 without prejudice. 24 IT IS FURTHER RECOMMENDED that Plaintiff be given through and including May 15, 25 2023 to file an amended complaint in accordance with the discussion above. Plaintiff is advised that 26 if she chooses to file an amended complaint it must be complete in and of itself. This means all facts 27 supporting all claims must be contained in the amended complaint. The Court cannot look back to 1 || Plaintiffs original Complaint is nullified. If Plaintiff does not file an amended complaint on 2 || before May 15, 2023, the Court will recommend the case be dismissed without prejudice. 3 DATED this 10th day of April, 2023. 4 5 Gea “ pe cWo 6 UNITEL 43 FATES WACISTA ATE JUDGE 8 9 NOTICE 10 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must | 11 || im writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court h 12 || held that the courts of appeal may determine that an appeal has been waived due to the failure to fi 13 |} objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has al 14 || held that (1) failure to file objections within the specified time and (2) failure to properly addre 15 || and brief the objectionable issues waives the right to appeal the District Court’s order and/or appe 16 || factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th C 17 || 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 18 19 20 21 22 23 24 25 26 27 28