Neeley v. NameMedia Inc. et al

Filing 21

ORDER ADOPTING 18 REPORT AND RECOMMENDATION; ORDER granting 3 Motion for Leave to Proceed in forma pauperis.; denying 3 Motion for Service; denying 16 Motion for Sanctions and Dismissing Plaintiff's Complaint Without Prejudice. Signed by Honorable Jimm Larry Hendren on August 1, 2012. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CURTIS J. NEELEY, JR., MFA
v.

PLAINTIFF

Civil No. 12-5074

NAMEMEDIA, INC.; GOOGLE, INC.;
MICROSOFT CORPORATION;
FEDERAL COMMUNICATIONS COMMISSION; and
THE UNITED STATES

DEFENDANTS

O R D E R
Before

the

Court

is

the

Magistrate

Judge’s

Report

and

Recommendation (document #18) and plaintiff’s objections thereto
(document #20). The Court, being well and sufficiently advised,
finds and orders as follows:
1.
Libelous
Fraudulent

On April 18, 2012, plaintiff filed his “Complaint for
Invasions
Use of

of

Privacy,

Stolen Art,

Author’s
and

Failure

Rights
to

Violations,

Regulate

Wire

Communications or Protect Exclusive Rights for Authors” (document
#1), in which he claims
*
photo.net

that defendant
to

delete

NameMedia

submitted

art

stopped
and

allowing

users of

maliciously

prevented

deletion of plaintiff’s nude art, constituting “defamation by
libel” which was an “invasion of privacy;”
*

that defendant Google allowed nude photos (taken by

plaintiff) to be seen and conspired with NameMedia to display the
nude photos, constituting defamation and violating the Fourth
Amendment and 17 U.S.C. § 106A;

*

that Google also scanned three of plaintiff’s nude

photographs from a New York library book in an act of “libelous
invasion of privacy” that presented plaintiff in a negative false
light;
*

that defendant Microsoft stopped returning plaintiff’s

nude art in searches for “curtis neeley” on March 8, 2012, but
resumed returning the nude art on April 15, 2012;
*

that defendant Federal Communications Commission (FCC)

refuses to perform its statutory mission for protecting the safety
of the public on world-wide wire communications and that it should
be ordered to do so; and
*

that defendant United States should be served with

certain “declarations.”
Plaintiff filed this Complaint on the heels of the Eighth
Circuit

Court

of

Appeals’

opinion,

entered

April

3,

2012,

affirming the district court’s dismissal of plaintiff’s previous
complaint against NameMedia, Google, and Network Solutions (case
#09-5151), which dealt with many of the same issues.
Plaintiff also filed a motion to proceed in forma pauperis
(document #3) and, later, a motion for sanctions (document #16).
2.

In

her

Report

and

Recommendation

(document

#18),

Magistrate Judge Erin L. Setser recommends that plaintiff’s motion
to proceed in forma pauperis be granted but that the complaint be
dismissed as to NameMedia and Google based on res judicata.

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Likewise, she recommends that the claims against Microsoft, the
FCC, and the United States be dismissed for failure to state a
claim. The Magistrate Judge further recommends that plaintiff’s
Motion Seeking Rule 11 Sanctions (document #16) be denied.
3.

Plaintiff has filed objections (document #20) in which

he concedes that his claims against NameMedia are barred by res
judicata. However, he argues that his claims against the other
defendants should not be dismissed.
4.

With regard to the claims against Google, plaintiff

contends that they consist of “new wrongs” based on “different
facts and different evidence” and cites Daley v. Marriott Int’l,
Inc., 415 F.3d 889 (8th Cir. 2005) for support.
(a)

Under the doctrine of res judicata, a judgment on the

merits in a prior suit bars a second suit involving the same
parties or their privies based on the same cause of action. 415
F.3d at 895–96. In Daley, the Eighth Circuit Court of Appeals
affirmed the dismissal of a complaint based on res judicata,
noting “under the ‘same cause of action’ element . . . whether a
second lawsuit is precluded turns on whether its claims arise out
of the ‘same nucleus of operative facts as the prior claim.’” 415
F.3d at 896 (quoting Costner v. URS Consultants, Inc., 153 F.3d
667, 673 (8th Cir. 1998)). “In the final analysis the test would
seem to be whether the wrong for which redress is sought is the
same in both actions.” Id.

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Most of the claims plaintiff makes in the present case stem
from the same underlying facts and occurrences that were the basis
for

the

claims

made

in

case

#09-5151:

plaintiff’s

artwork

depicting nude figures, which he placed in the public domain, were
accessible to users, including minors, by conducting an internet
search of plaintiff’s name. As Google was a party to case #09-5151
and that case was resolved by a judgment on the merits, res
judicata precludes those claims in the present action against
Google.
(b)

However, plaintiff’s invasion-of-privacy claim against

Google did not arise out of same underlying facts as the previous
case. Plaintiff claims that, at some point after March 7, 2010,
Google scanned and uploaded three of plaintiff’s nude images
(which were correctly attributed to plaintiff) from a New York
library book and made them accessible to the public in an online
preview of the book. Plaintiff contends that this presented him in
a negative false light.
The right to recover for a claim of false-light invasion of
privacy is conditioned upon the plaintiff’s demonstrating that
*

the false light in which he was placed by the

publicity would be highly offensive to a reasonable person, and
*

the defendant had knowledge of or acted in reckless

disregard as to the falsity of the publicized matter and the false
light in which the plaintiff would be placed.

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LasikPlus Murphy, M.D., P.A. v. LCA-Vision, Inc., 776 F. Supp. 2d
886, 899 (E.D. Ark. 2011) (citing Dodrill v. Ark. Democrat Co.,
265 Ark. 628, 638 (1979)). Arkansas law requires a showing of
actual malice in order to prove a false-light claim. Dodrill, 265
Ark. at 638.
Plaintiff has failed to explain how the publishing of his own
artwork places him in a negative false light, nor has he alleged
any falsity associated with the artwork or any malice in the
manner in which it was published. Thus, plaintiff has failed to
state a claim against Google upon which relief may be granted.
5.

With

regard

to

the

claim

against

Microsoft,

the

Magistrate Judge recommended dismissal for failure to state a
claim upon which relief may be granted.
(a)

The Magistrate Judge reasoned that, to the extent the

claim is construed as a defamation claim, a necessary element of
defamation is missing because it was plaintiff——not Microsoft——who
originally uploaded the photographs to the internet.
Plaintiff contends this is incorrect because “most nude
images returned in Microsoft Corporation searches for ‘curtis
neeley’ on internet wire communications were not placed or created
by Mr. Neeley and are associated with the text ‘curtis neeley’ in
violation of privacy.” (Emphasis omitted.)
If defamation is indeed the claim plaintiff attempts to make,
he must prove

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*

the defamatory nature of the statement of fact;

*

that statement’s identification of or reference to

the plaintiff;
*

publication of the statement by the defendant;

*

the defendant’s fault in the publication;

*

the statement’s falsity; and

*

damages.

Lancaster v. Red Robin Int’l, Inc., 2011 Ark. App. 706, at 8
(citing Dodson v. Allstate Ins. Co., 365 Ark. 458, 464 (2006)).
Up to this point, plaintiff has never denied uploading his
artwork to certain websites. His complaints have revolved around
the fact that some of those images remain accessible through
internet searches. Plaintiff has failed to state facts that would
allow the Court to draw the reasonable inference that defendant
Microsoft published plaintiff’s nude artwork of its own accord.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, he has
failed to state a claim of defamation against Microsoft.
(b)

To the extent plaintiff attempts to claim a violation of

17 U.S.C. § 106A, the Court has already ruled in case #09-5151
(Order, June 7, 2011, document #267) that this section would not
apply to copies of plaintiff’s artwork on the internet. The
Court’s reasoning on that issue has not changed. Therefore,
plaintiff has failed to state a claim against Microsoft on which
relief may be granted.

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6.

As

for

the

FCC,

the

Magistrate

Judge

found

that

plaintiff failed to exhaust his administrative remedies before
filing

suit.

Plaintiff

contends

that

“[n]o

administrative

procedure exists for citizen artists to seek redress from the
FCC.”
The

Court

contention

and

is

not

notes

persuaded
that

by

plaintiff’s

regulations

unsupported

regarding

the

FCC’s

administrative procedure are found at 47 C.F.R. Part 1 (Practice
and Procedure). Furthermore, a consumer complaint form can be
accessed on the FCC’s website at www.fcc.gov/complaints. Because
plaintiff has not made any attempt to pursue an administrative
remedy before the FCC, his claim should be dismissed.
7.

The Magistrate Judge correctly noted that plaintiff

failed to assert any claim against the United States and merely
stated that the U.S. Attorney General should be served with
various declarations.
In response, plaintiff attempts to amend his complaint by
attaching a “Complaint for Authors’ Rights Violations, Failure to
Regulate Wire Communications, and Failure to Protect the Exclusive
Rights of Authors,” in which he names the FCC, Microsoft, Google,
and the United States as defendants.
In the proposed amended complaint, the claims against the
FCC, Microsoft, and Google remain substantially the same as those
asserted in plaintiff’s original complaint. With regard to the

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United States, plaintiff submits a brief history of copyright law
and asserts that the United States refuses to recognize authors’
personal rights.
The

Court

still

cannot

glean

from

this

document

any

cognizable claim against the United States beyond plaintiff’s
general dissatisfaction with its laws and the way its courts have
interpreted those laws. Therefore, plaintiff’s attempt to amend
his complaint is denied, as the proposed amendment would state no
claim upon which relief may be granted.
IT IS THEREFORE ORDERED that the Magistrate Judge's Report
and Recommendation (document #18) is adopted in its entirety.
Plaintiff’s objections are overruled.
IT IS FURTHER ORDERED that
*

plaintiff’s Application to Proceed without Prepaying

Fees or Costs (document #3) is granted, but his motion for service
upon defendants is denied;
*

plaintiff’s Complaint (document #1) is dismissed without

prejudice; and
*

plaintiff’s Motion

for

Sanctions (document

#16) is

denied.
IT IS FURTHER ORDERED that, if plaintiff chooses to appeal
this matter, he shall be denied leave to appeal in forma pauperis,
as

his

claims

are

clearly

barred

by

res

judicata

and

are

frivolous, and thus, an appeal would not be taken in good faith.
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IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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