Smith v. Alphabet Inc.

• Decision Date: 23 May 2016
• Docket Number: CA 16-0086-CG-C
• Parties: MICHAEL HENRY SMITH, Plaintiff, v. ALPHABET INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

MICHAEL HENRY SMITH, Plaintiff, v. ALPHABET INC., et al., Defendants.

CA 16-0086-CG-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 23, 2016

REPORT AND RECOMMENDATION

The pro se plaintiff originally filed a 35-page complaint in this Court on February 26, 2016, against multiple defendants, both identified and unidentified (see Doc. 1), and given the contents of the complaint the undersigned set the matter down for a hearing on March 21, 2016 (Doc. 3). During the hearing, the plaintiff readily admitted that there were numerous deficiencies in his complaint (Doc. 6, at 1) and, therefore, the undersigned instructed plaintiff to file an amended complaint, solely against those defendants that he can identify and who can be readily served, specifically identifying all relevant facts in support of his claims and identifying the claims asserted against each defendant and his right to exercise each claim (and his right to recovery as to each claim) based on the relevant facts (id.). Compare Gregory v. McKennon, 430 Fed.Appx. 306, 308 (5th Cir. Jun. 22, 2011) (per curiam) (recognizing that a district court generally must afford a pro se plaintiff an opportunity to amend his complaint before dismissing for failure to state a claim) with, e.g., Vaughn v. Postal Employees, 2014 WL 3540575, *3 (S.D. Ala. Jul. 17, 2014) ("Plaintiff was given an opportunity to correct these deficiencies and was specifically instructed to provide additional facts in his amended complaint regarding the basis for his claims and for the Court's jurisdiction."). In short, plaintiff was instructed to comply with Rule 8(a) of the Federal Rules of Civil Procedure (id. at 1-2) and was informed that his amended pleading would be the operative pleading in this case (id. at 2). Plaintiff filed his amended complaint on April 22, 2016 (Doc. 7) and, on May 2, 2016, the Court granted his motion to proceed without prepayment of costs and fees (Doc. 8). However, service was withheld pending this Court's screening of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B). (Id. at 4.) The undersigned has screened Smith's amended complaint and now enters this report and recommendation, in accordance with 28 U.S.C. § 636(b)(1)(A) and General Local Rule 72(a)(2)(R) & (S), that this action be dismissed, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and, in part, as frivolous in accordance with 28 U.S.C. § 1915(e)(2)(B)(i).

BACKGROUND

On February 26, 2016, Michael Henry Smith filed a 35-page complaint against approximately 40 defendants for theft and dissemination of his intellectual property, that is, his short story related to the Waco, Texas biker massacre, and also, apparently, for "CYBER BULLYING, CYBER STALKING, CYBER HARASSMENT, LIABLE (sic), SLANDER AND DEFAMATION OF CHARACTER, THE USE OF HATE LANGUAGE IN THE PURSUIT OF THESE ACTIONS and/or FOR PROVIDING A SAFE HAVEN [FOR] THE DEFENDANTS CONDUCTING [] THESE ACTIVITIES and/or FOR FAILING TO PROTECT [HIS] WORKS FROM THESE ACTIVITIES[.]" (Doc. 1, at 1-2.) The undersigned set this cause down for a pretrial conference on March 21, 2016, so that the Court could make certain inquiries about the complaint. (See Doc. 3.) Mr. Smith appeared before the undersigned on March 21, 2016, and readily admitted that his complaint was deficient in several respects. (See Doc. 6, at 1.) Accordingly, the undersigned extended to plaintiff the opportunity to file an amended complaint not laterthan April 22, 2016 (id.), which he was advised would be the operative pleading in his case (id. at 2), "against those defendants he can identify and who can be readily served[.]" (Id. at 1.)

As specifically discussed with plaintiff, he need identify all relevant facts in support of his claims in separately-numbered paragraphs and also specifically identify the claims raised with respect to each defendant and his right to exercise each claim (and his right to recovery as to each claim) based on the relevant facts. In short, Mr. Smith must comply with Rule 8(a), which reads, as follows:

A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed.R.Civ.P. 8(a)(1)-(3).

(Doc. 6, at 1-2.)

Plaintiff filed his amended complaint on April 22, 2016 (Doc. 7), and though the undersigned specifically instructed Mr. Smith to list therein as defendants only those individuals/entities he could identify and who can readily be served (see Doc. 6, at 1), he included in his amended complaint no less than fourteen (14) defendants shielded by aliases (see Doc. 7, at 1) who this Court has no hope of serving with the complaint. Presumably, plaintiff included these "individuals" because they are the defendants—putatively protected by the named defendants—who "openly engaged in Cyber Bullying, Cyber Stalking, Harassment, Defamation of Character, Slander and Liable (sic)[,]" (id. at 8), which are apparently claims Smith seeks to pursue herein (see id. at 1-2 ("FIRSTAMENDED COMPLAINT IN THE LAWSUIT FOR THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS,¹ THEFT AND DISSEMINATION OF MY INTELLECTUAL PROPERTY, FOR CYBER BULLYING, CYBER STALKING, CYBER HARASSMENT, LIABLE (sic), SLANDER AND DEFAMATION OF CHARACTER, THE USE OF HATE LANGUAGE IN THE PURSUIT OF THESE ACTIONS and/or FOR PROVIDING A SAFE HAVEN [FOR] THE DEFENDANTS CONDUCTING OF THESE ACTIVITIES[.]")). As for the defendants identified by plaintiff who can be served, approximately twenty-five in number (compare id. at 1 with id. at 14-41), it appears that Smith is claiming that these defendants are guilty of the theft and/or illegal dissemination of his intellectual property by providing the "alias" defendants with a safe haven to carry out their nefarious activities "and/or that they have practiced a willful ignorance that has advanced the theft and dissemination of [his] intellectual property and/or that their negligence has given rise to that theft." (Id. at 2.)

Smith's statement of facts in support of his claims, though not separately numbered, as requested (compare id. at 8-11 with Doc. 6, at 1), consist of the following:

On the 4^th of July, 2015, I listed the first volume of my short story series "The Waco, Texas, Biker Massacre" on the Kindle Direct Publishing service provided by Amazon; and paperback version "The Waco Biker Massacre" on the CreateSpace service provided by Amazon. Within weeks of publishing these titles, persons listed as Defendants and protected by aliases, and others not named here, started offering my work for free through the named defendants. This was part of a campaign of Intentional Infliction of Emotional Distress by some of the defendants. Over the next seven months I tried in vain to have the named defendants stop the harassment and bullying and stalking and dissemination of my works.

The defendants that are named but their identities are protected by the other defendants have openly engaged in Cyber Bullying, Cyber Stalking, Harassment, Defamation of Character, Slander and Liable (sic). They have used Hate Speech amongst other methods to harm me. See. Exhibit 'B-1' and 'B-2'.

These anonymous defendants investigated me. They cited personal details of my identity and my life in online posts. These defendants were indefatigable in their pursuits. Their conduct over a seven month, or longer[,] period[] meets the criteria of excessive. They intentionally inflicted emotional harms onto me.

In that period the anonymous defendants tried to gain entry into my Facebook account[,] and other accounts. They cloned my name and created false postings claiming to be me.

Every time I posted anything remotely relating to the Massacre or my short story, they pounced upon me.

The names of these anonymous defendants are a red flag as to their true nature: "Peter Will Harden," "Long Dong," "Long John,["] and "Whistle Dick" are not the nom de plumes of normal people. Yet, when reported to Facebook, Facebook refused to take action against these criminals. The same for Google and Box.

Numerous legitimate hosting services, file sharing services, and social media services responded immediately to my complaints. The time to take down the offending material was never more than a few hours. Some of the legitimate sites are located in Europe where even the time differential did not create much delay in their immediately snatching down these posts.

The industry standard, as revealed by my personal experience here, is that the legitimate sites do not tolerate these offenses[] once it has been reported to them.

The named defendants have agreed to totally obscure the names and addresses of the people carrying out these crimes. Some have agreed to obscure the names and addresses of those defendants providing first person services to those that are carrying out these crimes. Some have attempted to remain passive in the light of these crimes and/or pretended ignorance.

Make no mistake that the named and identified defendants are directly profiting from the theft of my intellectual property. These are not passive gateways to the Internet.

During the time of this unrelenting assault I have solely had the burden of caring for my handicapped sister and my 85 year old mother. I have been particularly susceptible to the machinations of the defendants.

As of today, it is my estimation that some 100,000 copies of my work have been distributed without my receiving a single Sioux in compensation.

I have not been able to finish writing and release[] Volume Two of this work as the defendants have decimated my mental, physical and emotional strengths, and eviscerated any income that I would have received from

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