United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. His declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines the allegation of poverty is untrue, or if the
action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
an immune defendant. As discussed below, plaintiff's
complaint fails to state a claim and must be dismissed.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-563,
570 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id. at
555 (citations omitted). Dismissal is appropriate based
either on the lack of cognizable legal theories or the lack
of pleading sufficient facts to support cognizable legal
theories. Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990).
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
pleading in the light most favorable to the plaintiff, and
resolve all doubts in the plaintiff's favor, Jenkins
v. McKeithen, 395 U.S. 411, 421 (1969). A pro se
plaintiff must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2)
requires a complaint to include “a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (citing Conley,
355 U.S. at 47).
brings this action against defendants CBS Television Network
(“CBS”), Greg Berlanti, Steven Lillien, Bryan
Wyndrandt, Mark Zuckerberg, and Facebook Inc.
(“Facebook”), alleging that all defendants
violated copyright laws. ECF No. 1 at 6. The complaint
alleges that in October 2018, CBS aired a show called
“God Friended Me, ” which was produced by the
individual defendants and Facebook. Id. at 8.
Plaintiff alleges that to create the show, the defendants
“stole [his] story from [an] 8 year documentary on
[plaintiff's] Facebook” page. Id. at 8.
Plaintiff also appears to allege that defendants Zuckerberg
and Facebook hacked his Facebook account and sold over four
months of his data, including his documentary, to CBS.
Id. at 9. Based on these allegations, plaintiff
seeks damages under 17 U.S.C. § 504 in the amount of
$100 million dollars. Id. at 6-7.
allegations are insufficient to state a claim for copy right
infringement. To state such a claim, plaintiff must allege
facts plausibly showing “(1) that he owns a valid
copyright in his work, and (2) that the defendants copied
protected aspects of the work's expression.”
Skidmore for Randy Craig Wolfe Trust v. Led
Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018). To
establish the second element, a plaintiff must allege facts
showing the two works at issue are “strikingly similar,
” or “that the defendant had ‘access'
to the plaintiff's work and that the two works are
‘substantially similar.'” Three Boys
Music Corp. v. Bolton, 212 F.3d 477, 481, 485 (9th Cir.
does not allege that he has a valid copyright in the
documentary that was allegedly copied by defendants. Nor does
he allege any facts demonstrating that his documentary is
similar to the television show defendants created. Instead,
he merely provides his conclusion that there are “too
many similarities” between the two works (ECF No. 1 at
9), which is insufficient to establish that defendants copied
aspects of plaintiff's work. See Ileto v. Glock
Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (the court
need not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations).
Accordingly, plaintiff's compliant must be dismissed for
failure to state a claim.
is granted leave to file an amended complaint, if he can
allege a cognizable legal theory against a proper defendant
and sufficient facts in support of that cognizable legal
theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th
Cir. 2000) (en banc) (district courts must afford pro se
litigants an opportunity to amend to correct any deficiency
in their complaints). Should plaintiff choose to file an
amended complaint, the amended complaint shall clearly set
forth the allegations against each defendant and shall
specify a basis for this court's subject matter
jurisdiction. Any amended complaint shall plead
plaintiff's claims in “numbered paragraphs, each
limited as far as practicable to a single set of
circumstances, ” as required by Federal Rule of Civil
Procedure 10(b), and shall be in double-spaced text on paper
that bears line numbers in the left margin, as required by
Eastern District of California Local Rules 130(b) and 130(c).
Any amended complaint shall also use clear headings to
delineate each claim alleged and against which defendant or
defendants the claim is alleged, as required by Rule 10(b),
and must plead clear facts that support each claim under each
plaintiff is informed that the court cannot refer to prior
pleadings in order to make an amended complaint complete.
Local Rule 220 requires that an amended complaint be complete
in itself. This is because, as a general rule, an amended
complaint supersedes the original complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once
plaintiff files an amended complaint, the original no longer
serves any function in the case. Therefore, “a
plaintiff waives all causes of action alleged in the original
complaint which are not alleged in the amended complaint,
” London v. Coopers & Lybrand, 644 F.2d
811, 814 (9th Cir. 1981), and defendants not named in an
amended complaint are no longer defendants. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally,
the court cautions plaintiff that failure to comply with the
Federal Rules of Civil Procedure, this court's Local
Rules, or any court order may result in a recommendation that
this action be dismissed. See ED. Cal. L.R. 110.
IT IS ORDERED that:
Plaintiffs request for leave to proceed in forma
pauperis (ECF No. 2) is granted.
Plaintiffs complaint is dismissed with leave to amend, as
Plaintiff is granted thirty days from the date of service of
this order to file an amended complaint. The amended
complaint must bear the docket number assigned to this case
and must be labeled “First Amended Complaint.”
Failure to timely file an amended complaint in ...