Eng v. Reichardt et al

Filing 4

MEMORANDUM & ORDER: The Court grants plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The complaint in its entirety is dismissed with a prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Eric N. Vitaliano, on 6/9/2014. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

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IN OlEfttCS OFFICE

U.8. l)!S1'RJCtCOURT E.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* JUN 0 9 2014

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'fto/17

BROOKLYN OFF.CE

*

KENNETH ENG,

Plaintiff,
-against-

MEMORANDUM & ORDER
14-cv-1502 (ENV) (LB)

KELLY REICHARDT; MATTHEW WOLF;
LASZLO SANTHA; DARRELL WILSON;
DAVID IRVING; JULES MARTIN; THE
ESTATE OF BILL REILLY; ROBERT HONOR;
LAMAR SANDERS; PETER BARTON;
UNKNOWN NYU PROFESSOR WHOSE FIRST
NAME IS STEVE; HOLLINGER, (FIRST NAME :
UNKNOWN); RAMOS, (FIRST NAME
UNKNOWN); and NYU,
Defendants.
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VIT ALIANO, D.J.,
Plaintiff Kenneth Eng, a frequent filer, commenced this action, pro se, on
March 4, 2014. Eng asserts claims pursuant to 42 U.S.C. § 1981, the First
Amendment, and the federal copyright statute. The Court grants plaintiff's request
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons discussed
below, nonetheless, the action is dismissed for failure to state a claim upon which
relief may be granted, and as time-barred.
Background
At issue is a series of incidents that allegedly occurred between 2002 and 2005,
while plaintiff was a film student at New York University ("NYU"). (Compl. ~ 3.)
His complaint and the annexed exhibits demonstrate that while at NYU, Eng made
inflammatory, racially-motivated comments to other students in his classes, assaulted

~

at least one other student by spitting on him in an editing studio, and was generally
perceived by his professors and fellow students as disruptive and a threat to the NYU
1

community. (See Exhibits to complaint generally.) Eng alleges that the various
NYU professors, students, and personnel that he names as defendants violated his
civil rights, particularly by "censor[ing] [him] from expressing racist views."
(Com pl.~ 3.) He further alleges that one of his professors violated federal copyright
law by giving copies of a screenplay he wrote to other NYU officials. (Com pl.~ 3.)
Standard of Review
A civil action complaint must provide "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule
does not require a plaintiff to provide "detailed factual allegations" in support of his
claims in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, 550 U.S.
544, 555 (2007), but it does demand "more than an unadorned, the-defendantunlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
Indeed, mere conclusory allegations or "naked assertions" will not survive a motion
to dismiss without at least some "further factual enhancement" providing substance

to the claims alleged. Twombly, 550 U.S. at 557.
When a plaintiff proceeds without legal representation, a court must regard
that plaintiff's complaint in a more liberal light, affording such pleadings the
strongest interpretation possible. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);

On August 1, 2008, Eng was sentenced by a judge of this Court to five years' probation upon
a plea of guilty to one count charging a civil rights violation under 18 U.S.C. § 245(b)(4)(A),
for making a threatening phone call to the student he assaulted at NYU. (Judgment, No. 08-cr66, Dkt. No. 38.)

Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per

curiam). Even so, the Court must dismiss an in forma pauperis complaint if it "(i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief." 28

U.S.C. § 1915(e)(2)(B).
Discussion
Eng's First Amendment claim is based on his allegation that he was
reprimanded by various professors and administrators for making statements in
class that they viewed as offensive. For lack of anything better, the Court will
construe this claim as made pursuant to 42 U.S.C. § 1983. In order to maintain a §
1983 claim, a plaintiff must allege conduct that (1) was committed by a person acting
under color of state law, and (2) deprived him of rights, privileges or immunities
secured by the Constitution or laws of the United States. Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir. 1994).
This claim fails for a number of reasons, the most obvious of which is that
neither NYU nor its professors are state actors. It is "fundamental" that the First
Amendment prohibits only government infringement on the right of free speech.
Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982). It does not reach the acts of a

private entity, such as NYU. See id. at 840-41 (private school is not a state actor);
see, also Johnson v. City of New York, 669 F. Supp. 2d 444 (S.D.N.Y. 2009) (dismissing

§ 1983 claim against NYU because it is a private entity). Because all of the
defendants are private actors affiliated with NYU, this claim must be dismissed in its

entirety and with prejudice.
Plaintiff also brings a claim under 42 U.S.C. § 1981, which is designed to
prevent racial discrimination and protects the right "to make and enforce contracts,
to sue, be parties, give evidence and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens ..
. ." 42 U.S.C. § 1981. To plausibly plead this claim, Eng must allege facts supporting
the following elements: (1) membership in a racial minority; (2) defendants' intent to
discriminate on the basis of race; and (3) discrimination concerning one or more of
the activities enumerated in the statute. Brown v. City of Oneonta, 221 F.3d 329, 339
(2d Cir. 2000). The discrimination must have been intentional, and "a 'substantial'
or 'motivating factor' for the defendant's actions." Tolbert v. Queens College, 242
F.3d 58, 69 (2d Cir. 2001) (internal citations omitted) see also Anderson v. City of New
York, 817 F. Supp. 2d 77, 95 (E.D.N.Y. 2011) ("[T]he plaintiff must make a fact-

specific allegation of a causal link between defendant's conduct and the plaintiff's
race.") (quotations omitted).
Eng does allege that he is Asian, thus satisfying the first element, but fails to
allege facts supporting the other two. Read broadly and in the light most favorable
to plaintiff, the complaint alleges that various NYU officials scolded him and ejected
him from at least one class because he espoused "racist" views and used racial
epithets in classroom discussions and written assignments, which his professors
found disruptive and offensive to other students. At least two professors felt
personally threatened, and one requested protection from the administration. (See

Exhibits at 2 and 12.)
Even if the slights that Eng alleges he suffered could form the basis of a § 1981
claim, and the Court does not find that they do, he acknowledges repeatedly that he
was singled out for this treatment based on his self-described "racist" actions and
statements, not because he is a member of a racial minority. The sole allegation Eng
makes that even relates to his race is that "other non-Asian students created
controversial films, and they were not penalized." (Compl. ~ 3.) But Eng never
alleges that he was "penalized" for making a "controversial film;" rather, he alleges
that he was reprimanded on numerous occasions for repeatedly making derogatory
statements about other racial minorities. Indeed, the only acts of intentional racial
discrimination that Eng alleges are ones he committed against others. As such, Eng
wholly fails to state a cause of action under § 1981.
Additionally, Eng's§ 1981 claim is time-barred. The statute of limitations for
claims brought pursuant to§ 1981 is four years. Early v. Wyeth Phann., Inc., 603 F.
Supp. 2d 556, 570 (S.D.N.Y. 2009) (citing Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 371 (2004)). 2 The events that plaintiff complains of occurred between 2002
and February 2005, and thus the limitations period expired, at the latest, in February
2009, more than five years before this action was commenced. Eng appears to ask
the Court to excuse the delay because he was on probation during some of the

2

In certain circumstances, the statute of limitations for a § 1981 claims is three years. See
Jones, 541 U.S. at 382 (2004). The distinction is obviously irrelevant in this case.

intervening time,3 and because the alleged wrongs "caused severe psychological
trauma that has adversely affected [his] physical health" and his "ability to think
clearly." (Com pl.

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3.) Because of Eng's prose status, the Court will broadly

construe this as an attempt to invoke the toll for disability based on insanity under
New York CPLR § 208. CPLR § 208 provides, in relevant part: "If a person entitled
to commence an action is under a disability because of ... insanity at the time the
cause of action accrues, ... the time within which the action must be commenced
shall be extended to three years after the disability ceases.... "
The insanity toll extends to those "who are unable to protect their own legal
rights because of an overall inability to function in society.... [it] cannot be
interpreted as providing a toll of the Statute of Limitations to an individual claiming
a mere post traumatic neurosis." McCarthy v. Volkswagen ofAmerica, 55 N.Y.2d
543, 450 N.Y.S.2d 457, 460, 435 N.E.2d 1072, 1074 (1982); see also Washington v. Doe,
No. 08-cv-4399, 2011 WL 679919, at *2 (E.D.N.Y. Feb. 16, 2011) ("Difficulty in
functioning is not sufficient to establish insanity for purposes of§ 208; rather, the
plaintiff must be totally unable to function as a result of a severe and incapacitating
disability.") (citation omitted). Eng's allegations of impaired "ability to think
clearly" do not merit tolling under § 208. Indeed, Eng has competently filed four pro

3

On June 4, 2008, Eng pleaded guilty to knowingly and willfully injuring, intimidating, and
interfering with another person, in order to intimidate that person from participating in and
enjoying, without discrimination on account of race and color, the benefits of educational
programs and activities at New York University, in violation of 18 U.S.C. § 245(b)(4)(A). On
July 28, 2008, he was sentenced to five years' probation. United States v. Eng, 08-cr-00066
(E.D.N.Y).

se complaints in this Court since August 2013; in addition to this complaint, he has

filed one against his former parole officers, one against various members of the New
York City Police Department for a 2011 arrest, and one asserting an unrelated
copyright claim. These documents themselves demonstrate Eng's ability to function,
foreclosing availability of the insanity toll. More pointedly, as noted earlier, the
public records of this Court reveal that Eng, in 2008, was determined to be fully
competent to enter a plea of guilty to a crime and to serve five years of probation on
his own in the community. In addition, Eng does not, nor on this history could he
hope to, allege that he "has been prevented in some extraordinary way from
exercising his rights" such that equitable tolling might be applicable. Pearl v. City of
Long Beach, 296 F.3d 76, 85 (2d Cir. 2002) (internal quotation omitted).

Accordingly, in addition to failing to state a claim under § 1981, Eng's claim is
untimely and is dismissed for that independent reason. 4
Finally, Eng brings a copyright infringement claim, pursuant to 17 U.S.C §
501, based on the allegation that one defendant-Santha, one of Eng's former
professors-gave copies of Eng's screenplay to other school officials. "In a
copyright infringement case, the plaintiff must show: (i) ownership of a valid
copyright; and (ii) unauthorized copying of the copyrighted work." Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).

As a preliminary matter, Eng does not allege that he has registered his

4

For the same reasons, even if Eng had stated a§ 1983 claim, that claim would be time-barred
as well.

screenplay with the Copyright Office, a precondition to an infringement suit under §
501. 17 U.S.C. § 4ll(a); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010);

Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., 09-CV-2669, 2012
WL 1021535, *5 (S.D.N.Y. Mar. 26, 2012). Even if Eng had registered his
screenplay, however, his allegations would be insufficient to state a claim for
copyright infringement.
The Copyright Act grants certain exclusive rights to the owner of a
copyright, including the right to make and distribute copies of the copyrighted work.

See 17 U.S.C. § 106 (1994). Notwithstanding, under the de minimis doctrine, "where
unauthorized copying is sufficiently trivial, 'the law will not impose legal
consequences.'" On Davis v. The Gap, Inc., 246 F.3d 152, 172-73 (2d Cir. 2001)
(quoting Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997).
Examples include a newspaper cartoon copied and put up on a refrigerator, or
waiters at a restaurant singing "Happy Birthday" at a patron's table. While both
constitute unauthorized use of a copyrighted work, they are not, as a matter of law,
copyright infringement. See On Davis, 246 F.3d at 172 ("When we do such things, it
is not that we are breaking the law but unlikely to be sued given the high cost of
litigation. Because of the de minimis doctrine, in trivial instances of copying, we are
in fact not breaking the law.").
Accepting his allegations as true, and reading them in the light most favorable
to him, Eng says he voluntarily gave Santha, in his role as professor, a copy of his
screenplay, and Santha then shared copies of the screenplay with one or more

educational supervisors. Eng does not allege that anything further was done with the
screenplay-the intramural distribution to NYU educators of his NYU student work
is the focus of his grievance. While it may have been unauthorized, this is a de

minimis use that does not constitute copyright infringement. See Knickerbocker Toy
Co. v. Azrak-Hamway Int'/, Inc., 668 F.2d 699, 703 (2d Cir. 1982) (denying relief
under de minimis doctrine where defendant had made a copy of plaintiff's work, but
copy was never used).
Additionally, like his other claims, Eng's copyright claim is time-barred. The
statute of limitations for a copyright infringement claim is three years. See 17 U.S.C.

§ 507(b). Plaintiff alleges that he was aware of the unauthorized use of his
screenplay, and demanded its return, in February 2003, making his claim more than
eight years late.
It is rare, or course, that initial pleading dismissal will close the courthouse

door. Ordinarily, the Court would allow a prose plaintiff an opportunity to amend
his complaint. See Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000). It need not,
and should not, afford that opportunity here, however, where it is clear from
plaintiff's very submissions that there is absolutely no possibility of pleading a
plausible claim against these defendants in an amended complaint. Therefore, any
attempt to amend the complaint would be futile. Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000). Leave to amend is denied.
Conclusion
For the foregoing reasons, the complaint in its entirety is dismissed with

I

a

prejudice. 28 U.S.C. § 1915(e)(2)(B).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status is
denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
The Clerk of Court is directed to enter judgment for defendants and to close
this case.
SO ORDERED.
Dated: Brooklyn, New York
June 9, 2014

/S/ Judge Eric N. Vitaliano
ERIC N. VITAIJANO
United States District Judge