Brodzki v. Fox News

Filing 28

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 6/21/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ANTHONY BRODZKI,
Plaintiff,
v.

FOX BROADCASTING COMPANY,
Defendant.

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) Civ. No. 10-796-SLR
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Anthony Brodzki, North Richland Hills, Texas. Pro Se Plaintiff.
Thomas C. Grimm, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington,
Delaware. Counsel for Defendant.

MEMORANDUM OPINION

Dated: June Jl ,2012
Wilmington, Delaware

~
,

istrict Judge

I. INTRODUCTION
Plaintiff Anthony J. Brodzki ("plaintiff') filed this action on September 20, 2010,
alleging privacy and civil rights violations. He appears pro se and has been granted
leave to proceed without prepayment of fees. (See 0.1. 4) Presently before the court is
plaintiffs motion for summary judgment and defendant's motion to dismiss. (0.1. 14, 22)
The court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons discussed, the
court will grant defendant's motion to dismiss and will deny as moot plaintiffs motion for
summary judgment.
II. BACKGROUND
The court screened the case pursuant to 28 U.S.C. § 1915, dismissed the
complaint, and gave plaintiff leave to amend. Plaintiff filed an amended complaint and,
following several attempts at service, defendant waived service of process. Plaintiff
alleges violations of civil rights as well as the torts of assault, battery, false
imprisonment, defamation, and slander.l
Plaintiff resides in North Richland Hills, Texas. He alleges that, during Fox
.Jimmy Johnson
football pregame shows originating in Los Angeles, Fox broadcasters •
("Johnson"), Howie Long ("Long"), Terry Bradshaw ("Bradshaw"), and Mike Stratham
("Stratham") accused him of being a pedophile. In addition, plaintiff alleges the
broadcasters continually have said that he "had taken a picture of a young boy's dong,"

lAlthough not stated in the amended complaint, the civil cover sheet indicates
that plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983. When bringing a § 1983
claim, a plaintiff must allege that some person has deprived him of a federal right, and
that the person who caused the deprivation acted under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). Defendant is not a state actor and, therefore, the civil
rights claim is without merit.

and that Johnson said, "you took a picture of a boy's penis" after Long had mentioned
plaintiff's name. Plaintiff alleges the events began on September 12, 2010 and
continued every Sunday through and including December 19, 2010. He seeks one
hundred million dollars in dam~ges.
Defendant moves for dismissal on the grounds that the amended complaint fails
to state a plausible claim for relief, the allegations appear delusional and frivolous, and
plaintiff has failed to allege sufficient facts to fulfill the elements of the various causes of
action. Defendant seeks dismissal without leave to amend. (D.I. 22, 23) Plaintiff
opposes the motion.

III. STANDARD OF REVIEW
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the
court must accept all factual allegations in a complaint as true and take them in the light
most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Christopher v. Harbury, 536 U.S. 403, 406 (2002). A court may consider the pleadings,
public record, orders, exhibits attached to the complaint, and documents incorporated
into the complaint by reference. Tel/abs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85
n.2 (3d Cir. 1994). A complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give the defendant[s] fair notice
of what the ... claim is and the grounds upon which it rests." Bell At!. Corp. v.

Twombly, 550 U.S. 544, 545 (2007) (interpreting Fed. R. Civ. P. 8(a» (internal
quotations omitted).
A complaint does not need detailed factual allegations; however,

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"a plaintiffs obligation to provide the 'grounds' of his entitle[ment] to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do." Id. at 545 (alteration in original) (citation omitted). The "[f]actual
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. Furthermore, "[w]hen
there are well-ple[d] factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal,
556 U.S. 662, 664 (2009). Such a determination is a context-specific task requiring the
court "to draw on its judicial experience and common sense." Id.

IV. DISCUSSION
Plaintiff alleges the commission of several torts. After thoroughly reviewing
plaintiffs amended complaint, the court finds its scant allegations do not adequately
plead the elements of defamation, 2 slander,3 assault,4 battery,S or false imprisonment. 6

2Under Delaware law, generally, the elements of defamation are: (1) a
defamatory communication; (2) publication; (3) the communication refers to the plaintiff;
(4) a third party's understanding of the communication's defamatory character; and (5)
injury. Bickling v. Kent Gen. Hosp., Inc., 872 F.Supp. 1299, 1307 (D. Del. 1994).
30ral defamation. Spence v. Funk, 396 A.2d 967, 970 (Del. 1978).
4An assault is the attempt by a person, in a rude and revengeful manner, to do an
injury to another person, coupled with the present ability to do it. Lloyd v. Jefferson, 53
F. Supp. 2d 643, 672 (D. Del. 1999).
SThe tort of battery is the intentional, unpermitted contact upon the person of
another which is harmful or offensive. Brzoska v. Olson, 668 A.2d 1355, 1350 (Del.
1995).
6False imprisonment occurs when one person unlawfully restrains the physical
liberty of another and is a tort based upon the unlawful detention of one person by
another. See Shaffer v. Davis, 1990 WL 81892, at *2 (Del. Super. June 12, 1990).

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In addition, the court draws on its judicial experience and comm
on sense and finds that
the allegations are not plausible on their face. There are no facts
to suggest that Fox
broadcasters know plaintiff, much less that they had reason to
mention him on a weekly
basis during defendant's football pregame shows.
Finally, this court dismissed a similar complaint that plaintiff filed
against CBS
Sports as delusional and irrational in nature. See Brodzki v. CBS
Corp., Civ. No. 11­
841-SLR (D. Del. Jan. 17, 2012) (slip op.). On appeal, the United
States Court of
Appeals for the Third Circuit found the claims were properly dismis
sed as frivolous and
they were delusional and irrational in nature. Brodzki v. CBS Corp.,
2012 WL 1679425
(3d Cir. May 15, 2012) (slip op.); see also Brodzki V. Fox Broad
casting, 2012 WL
1609166 (3d Cir. May 9,201 2) (slip op.); Brodzki V. Tribune Co.,
2012 WL 1592979 (3d
Cir. May 8, 2012) (slip op.). Because the court finds the amended
complaint wholly
lacking in both terms of credibility and rationality, the defendant's
motion to dismiss will
be granted. In light of the nature of plaintiff's claims, the court finds
that further
amendment would be futile. See Alston
Grayson

V.

Parker, 363 F.3d 229 (3d Cir. 2004);

V.

Mayview State Hasp., 293 F.3d 103, 111 (3d Cir. 2002); Borelli

V.

City of

Reading, 532 F.2d 950, 951-52 (3d Cir. 1976).

V. CONCLUSION
For the reasons discussed above, the court will grant defendant's
motion to
dismiss and will deny as moot plaintiff's motion for summary judgm
ent. (D.1. 14,22 )
An appropriate order will be entered.

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