Jones (ID 59073) v. United States Copyright Office

Filing 17

MEMORANDUM AND ORDER ENTERED: Plaintiff's substantive objection 15 to the Report and Recommendation of Magistrate Judge Waxse is overruled; Judge Waxse's Report and Recommendation 12 is adopted in its entirety, except with respect to p laintiff's IPF motions; and this action is dismissed and all relief is denied without prejudice. Plaintiff's motion 16 for leave to amend financial affidavit and plaintiff's motions [3} and {11] to proceed in forma pauperis are granted. Signed by Senior District Judge Sam A. Crow on 10/14/14. Mailed to pro se party Joseph Lee Jones by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH LEE JONES,
Plaintiff,
v.

CASE NO.

14-3078-SAC

UNITED STATES COPYRIGHT OFFICE
COMMISSIONER OF COPYRIGHTS,
Defendant.
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil complaint while he was an
inmate

at

the

Larned

Correctional

Mental

Health

Facility.1

Plaintiff named the “U.S. Copyright Office Commisoner (sic) of
Copyrights” as defendant and alleged that he had submitted a
work entitled “A.I. Avatars” to the “U.S. Copyright Office” but
had been unable to obtain a satisfactory response.

On July 25,

2014,

“Report

Magistrate

Judge

David

J.

Waxse

issued

a

and

Recommendation on IFP Motions and For Dismissal of Complaint”
(Doc. 12)(hereinafter R&R) recommending that plaintiff’s motions
for IFP status be denied based upon his financial affidavits and
dismissal of this action because the complaint on its face fails
to state a plausible claim under 28 U.S.C. § 1331.
filed
1

a

timely

objection

to

the

proposed

Plaintiff

findings

and

Plaintiff filed a notice of change of address, and his new address is
residential. Thus, it appears that he is no longer a prisoner.
1

recommendations.
grants

For the reasons explained below, the court

plaintiff’s

proceed

in

objection

forma

with

pauperis,

respect

to

overrules

his

motions

plaintiff’s

to

other

objection, and adopts the Report and Recommendation to dismiss
this

action

pursuant

to

28

U.S.C.

§

1915(e)(2)(B)(ii)

for

failure to state a claim in full.

1.

Motions to Proceed in forma pauperis
Magistrate Judge Waxse recommended that plaintiff’s Motions

for Leave to Proceed in forma pauperis (Docs. 3 & 11) be denied
based on his income and lack of indebtedness, and that plaintiff
be required to pay the filing fee of $400.00 in full within (30)
days from the date of any district court order denying these
motions or suffer dismissal of this action.
to

this

recommendation

by

“objecting”

Plaintiff responded

that

the

court

should

amend his IFP motion to show his expenses and find that he
cannot

pay

the

filing

fee.

He

has

also

filed

an

Amended

Affidavit of Financial Status (Doc. 14) and a Motion for Leave
to

Amend

Affidavit,

Financial

Affidavit

plaintiff

again

(Doc.

lists

his

16).
monthly

In

his

Social

Amended
Security

benefits, but adds monthly expenses that were not included in
his

original

plaintiff

affidavit.

alleges

that

In
he

his

did

not
2

Motion

to

list

his

Amend

Affidavit,

expenses

in

his

original affidavit and also includes other incidental expenses.
The

court

grants

affidavit.

plaintiff’s

Based

upon

the

Motion
Amended

to

Amend

his

Affidavit,

financial

plaintiff’s

motions to proceed in forma pauperis are granted.

2.

Objection to Report and Recommendation
The court proceeds to consider plaintiff’s objection to the

substantive

findings

Recommendation.

and

recommendations

in

the

Report

and

Upon objection to a magistrate judge’s order on

a dispositive matter, the district court “must determine de novo
any part of the magistrate judge’s disposition that has been
properly objected to.”

Fed.R.Civ.P. 72(b)(3).

Objections are

proper only if they are both timely and specific.

An objection

is sufficiently specific if it “enables the district judge to
focus attention on those issues—factual and legal—that are at
the heart of the parties’ dispute.”
147 (1985).

Thomas v. Arn, 474 U.S. 40,

If objections are not timely or properly made, the

court has broad discretion to review the recommendation under
any

standard

that

it

finds

appropriate.

In

conducting

its

review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
3

Summers v.

Because plaintiff

appears pro se in this case, the court has liberally construed
his pleadings.

However, liberal construction “does not relieve

the plaintiff of the burden of alleging sufficient facts upon
which a recognized legal claim could be based.”
State

of

Colo.,

121

F.3d

573,

574

McWilliams v.

(10th

Cir.

1997).

Additionally, plaintiff’s status as a pro se litigant does not
excuse his pursuit of frivolous litigation in federal court.
The pleading that plaintiff entitled “Response to Report
and Recommendation for Dismissal” (Doc. 15) contains only one
sentence,

unrelated

objection.

This

to
is

IFP

matters,

plaintiff’s

that

may

statement

be

read

that

“the

as

an

U.S.

Copyright office still fails to mail Form C.O. so (he) can file
his copyright.”

With this sparse objection, plaintiff ignores

the findings in the R&R that the information he exhibited from
the

Copyright

website,

the

website

itself,

and

37

C.F.R.

§

202.3(b) entitled “Administrative classification and application
forms,” do not list a “Form C.O.”

Plaintiff also ignores the

suggestion in the R&R that a message he received was directing
him to provide the form number rather than “Form C.O.” because
there is no form C.O.

This objection is nothing more than

plaintiff’s bald repetition of the claim in his complaint that
he is unable to obtain a form C.O.

Plaintiff fails to describe

what a Form C.O. is and why he believes that he must use a Form
4

C.O.

This objection is obviously not specific enough to enable

this court to “focus attention” on the underlying “factual and
legal issues” that are “at the heart of the dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).

See

Mr. Jones simply

provides no rationale for this court to reject or modify the
recommended finding in the R&R that “form C.O.” is not among the
forms provided by defendant.
Furthermore, Mr. Jones makes no objection whatsoever to the
other significant findings in the R&R, which may be summarized
as follows: plaintiff failed to “identify a particular statutory
provision or statutory language upon which his claim is based”
and therefore fails to state a claim under 28 U.S.C. § 1331; the
facts alleged in the complaint fail to “evince a claim under the
U.S. Constitution”; plaintiff failed to state “sufficient facts
to

support

allegations

his

claim

utterly

fail

for
to

injunctive
show

that

relief”;
he

plaintiff’s

complied

with

the

“statutory formalities of copyright registration by submitting
an

application

for

registration,

a

fee,

and

deposit

to

the

Copyright Office”;2 plaintiff failed to allege facts indicating
that he submitted a single application or that he submitted his
application on the correct form; and plaintiff “alleges no facts
2

Under 17 U.S.C. § 410, the Register of Copyrights is to register the
claim and issue a certificate if the Register determines that “the material
“deposited” constitutes copyrightable subject matter and that the other legal
and formal requirements of Title 17 have been met.
5

to indicate that the agency has failed or refused to act in a
timely manner.”

3.

Exhibit: Amended Complaint
In

the

discussed

and

complaint.
his

R&R,

several

it

was

improper

found

that

filings
none

by

was

a

plaintiff
proper

were

amended

Plaintiff now improperly includes in the title of

response

or

objection

the

words:

“with

Attached

Amended

Complaint” and attaches to his objection an “Amended Complaint.”
He

does

response

not

otherwise

mention

to

which

is

it

the

Amended

attached.

The

Complaint
court

in

finds

the
that

plaintiff did not properly submit this Amended Complaint for
filing as a pleading, and in any event, the exhibited Amended
Complaint

is

not

original complaint.

substantially

different

from

plaintiff’s

It does not cure the many defects found in

the original complaint.

4.

Conclusion
The

findings

Court
and

Recommendation,

finds

itself

conclusions
except

with

in

complete

reached
respect

in
to

agreement
the

Report

plaintiff’s

Proceed in forma pauperis as previously explained.

with

Motion

the
and
to

The Court

has conducted a de novo review and agrees with Judge Waxse’s
6

conclusion that plaintiff fails to state a claim
relief

may

be

granted

and

seeks

monetary

defendants who are immune to such suit.

upon which

damages

against

Plaintiff’s objection

is overruled, and the Court accepts the July 25, 2014 Report and
Recommendation and adopts it as its own.
IT

IS

THEREFORE

substantive

objection

ORDERED
to

BY

the

THE

Report

COURT
and

that

plaintiff’s

Recommendation

of

Magistrate Judge Waxse (Doc. 15) is overruled; Judge Waxse’s
Report and Recommendation (Doc. 12) is adopted in its entirety,
except with respect to plaintiff’s IFP motions; and this action
is dismissed and all relief is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to
Amend Financial Affidavit (Doc. 16) and plaintiff’s motions to
proceed in forma pauperis (Docs. 3 & 11) are granted.
IT IS SO ORDERED.
Dated this 14th day of October, 2014, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

7