Daker v. Davis
| Decision Date | 07 July 2020 |
| Docket Number | 7:19-CV-159-WLS-TQL |
| Parties | WASEEM DAKER, Plaintiff, v. E. LEE DAVIS, et al., Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
RECOMMENDATION OF DISMISSAL
Presently pending before the Court are an Amended Complaint (ECF No 11) and Objections (ECF Nos. 9, 10) filed by pro se Plaintiff Waseem Daker.[1] In the Eleventh Circuit, “[a]n amended complaint supersedes the initial complaint unless the amended complaint ‘specifically refers to or adopts' the initial complaint.” Schreane v Middlebrooks, 522 Fed.Appx. 845, 847-48 (11th Cir. 2013) (quoting Varnes v. Local 91, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982)). Additional factual allegations contained in an objection to a recommendation of dismissal can also be construed as amendments to a complaint. See, e.g. Newsome v. Chatham Cnty. Det. Ctr., 256 Fed.Appx. 342 344 (11th Cir. 2007) (per curiam) (). Accordingly, the undersigned WITHDRAWS the Order and Recommendation dated January 30, 2020 (ECF No. 4) and enters the following Recommendation in its place, considering the facts in the Amended Complaint and Plaintiff's Objections. It is again RECOMMENDED that Plaintiff's claims be DISMISSED without prejudice.
The Prison Litigation Reform Act (“PLRA”) obligates the district courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
According to the Amended Complaint, on August 6, 2019, Plaintiff sent Defendant Valdosta State University (“VSU”) a request under Georgia's Open Records Act (“ORA”), O.C.G.A. §§ 50-18-70 et seq., seeking “[a] copy of all songs in rotation or on the playlist or in the song bank for the Valdosta State University radio station, WVVS, 90.9 FM, the ‘Voice of Valdosta State.'” Am. Compl. 5, ECF No. 11. On August 9, 2019, Defendant Davis, the chief legal affairs officer of VSU, responded that he anticipated providing a response to Plaintiff by August 16, 2019. Id. On that date, Defendant Davis provided Plaintiff with copies of the current playlists for WVVS and further advised Plaintiff, “ ” Id. (alteration in original).
On August 21, 2019, Plaintiff sent another ORA request to Defendant Davis and VSU claiming that the song audio files were not exempt from disclosure for at least five reasons: (1) many of the songs were not actually copyrighted; (2) even if the songs were copyrighted, the ORA did not have a specific exemption for the copyrighted audio files at issue; (3) that the requested songs had been publicly released and were therefore not exempt from disclosure pursuant to O.C.G.A. § 50-18-72(a)(35); (4) that federal copyright law would not protect the audio files from copying because of the “fair use” doctrine; and (5) that because Plaintiff was incarcerated, in-person inspection of the audio files at issue could not serve as an adequate substitute for duplication of the files. Id. at 6-8.
On August 23, 2019, Defendant Davis again responded to Plaintiff, reiterating his position that the “‘audio files of songs played on WVVS[] are subject to federal copyright'” and thus VSU was “not at liberty to provide [Plaintiff] a copy of these and will not do so.'” Id. at 8. Plaintiff then filed the above-captioned action, contending that Defendants' refusal to provide him with copies of the requested songs violated his rights under the First and Fourteenth Amendments to the United States Constitution and his statutory rights under the ORA. Plaintiff seeks declaratory relief and injunctive relief; civil penalties under the ORA; nominal, compensatory, and punitive damages; costs; and “other such relief that the court deems necessary or appropriate” as a result of these alleged violations. Id. at 11-14.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In other words, federal courts are only permitted to hear cases authorized by the Constitution or the laws of the United States. Id. A federal court thus has an obligation to ensure that it has subject matter jurisdiction over each case or controversy that appears before it. See, e.g., Miccosukee Tribe of Indians of Fla. v. Kraus-Anderson Constr. Co., 607 F.3d 1268, 1273 (11th Cir. 2010). If, at any time, the court finds “that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). While Plaintiff should be given notice and an opportunity to respond where the Court intends to dismiss his claims for lack of jurisdiction, an evidentiary hearing is not required. Cf., e.g., Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011) .
Plaintiff has proffered several different bases for jurisdiction. As discussed in more detail below, however, Plaintiff has not stated an actionable § 1983 claim in this case. If Plaintiff's § 1983 claims are dismissed, Plaintiff has failed to allege facts sufficient to show that this Court has original jurisdiction over his remaining claims, and the Court could not exercise pendent jurisdiction over any of Plaintiff's state-law claims. As such, his Amended Complaint should be dismissed without prejudice.
Plaintiff first asserts that the Court has federal-question jurisdiction in this case because he has raised claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights and “because Defendants have invoked a federal defense to Plaintiff's state law claims by claiming that some of the requested records at issue in this case are protected by federal copyright law, which Plaintiff disputes.” Am. Compl. 2, ECF No. 11. These claims lack merit.
Plaintiff's § 1983 claims are primarily based on his contention that “Defendants' refusal to provide Plaintiff a copy of each of the 4, 803 songs available in response to his first ORA Request . . . violates his right under the First and Fourteenth Amendments to receive information and ideas.” Am. Compl. 9, ECF No. 11. As a general matter it is true “that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). This protection prohibits the government from (1) infringing upon private expression; (2) “controlling or penalizing expression which has been singled out by government because of the expression's...
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