Rosado v. Roman et al
Opinion and Order - Lucid Energy, Inc.'s Motion to Dismiss (ECF 21 ) is GRANTED. Defendants California Energy Commission's and Roger E. Johnson's Motion to Dismiss (ECF 32 ) is GRANTED. Rosado's Complaint (ECF 1 ) is DISMISSED with prejudice. Plaintiff's Motion for Summary Judgment (ECF 23 ) and Motion to Strike (ECF 38 ) are DENIED. The Court further finds that any appeal from this Order would not be taken in good faith, and Plaintiff's in forma pauperis status should be revoked pursuant to 28 U.S.C. § 1915(a)(3). Signed on 8/11/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SAMUEL RIVERA ROSADO,
Case No. 16-cv-784-SI
OPINION AND ORDER
RlCHERD ROMAN, et al.
Samuel Rivera Rosado, 180695, South Florida Reception Center-South Unit Inmate Mail/Parcels
13910 NW 41st Street, Doral, FL 33178. pro se.
Xavier Becerra, Attorney General, Carol A. Squire, Supervising Deputy Attorney General,
Phillip M. Hoos, Deputy Attorney General, and Deborah M. Fletcher, Deputy Attorney General,
CALIFORNIA DEPARTMENT OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL, 600 West
Broadway, Suite 1800, San Diego, CA 92101. Of Attorneys for the California Defendants.
Daniel S. Hasson, DAVIS ROTHWELL EARLE & XOCHIHUA, PC, 200 SW Market Street, Suite
1800, Portland, OR 97201. Of Attorneys for Lucid Energy, Inc.
Michael H. Simon, District Judge.
Plaintiff Samuel Rivera Rosado (“Rosado”) filed this lawsuit pro se naming as
defendants: Richerd Roman, CEO, Lucid Energy, Lucid Energy System, Susan Priddy, Project
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Director, Lucid Commercial Micro-Hydro Energy System, Roger Johnson, Deputy Director of
the California Energy Commission, and the California Energy Commission. ECF 1 at 1-2. Lucid
Energy, Inc. (“LEI”), although not specifically named as a defendant, filed a motion to dismiss in
the event that the Court liberally construes Rosado’s complaint as asserting claims against LEI,
arguing that it was not properly named or served and that the Court lacks jurisdiction over LEI.
Roger Johnson and the California Energy Commission (collectively the “California Defendants”)
filed a motion to dismiss, arguing that Rosado fails to state a claim on which relief can be
granted. The Court finds that even under the liberal pleading standards afforded a pro se
plaintiff, Rosado fails to state a claim upon which relief may be granted against any defendant.
Accordingly, for the reasons that follow, this case is dismissed.
A. Motion to Dismiss
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629
F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
PAGE 2 – OPINION AND ORDER
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
B. Pro Se Pleading Standard
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is
absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice
of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.’”
Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)
(quoting Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under
Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” This standard “does
not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
PAGE 3 – OPINION AND ORDER
Rosado filed his pro se Complaint against all Defendants on March 29, 2016, in the
Southern District of Florida. ECF 1. Magistrate Judge Patrick A. White, noting that Rosado’s
Complaint “is far from clear[,]” transferred the case to this Court because the Complaint “alleged
events giving rise to the cause of action [that] occurred in the City of Portland, Oregon and the
City of Portland lies within the jurisdiction of the United States District Court, District of
Oregon.” ECF 5 at 2.
Rosado styles his claims as being civil rights claims under 42 U.S.C. § 1983. Mindful of
the liberal construction a court is to give pro se pleadings, the Court looks to the substance of
Rosado’s claims and not the label he provides. The substance of his Complaint demonstrates that
he purports to bring a copyright infringement claim.
In Rosado’s Complaint, Rosado alleges that Defendants infringed his copyrighted
technical drawings of a purported pipeline that produces clean energy from water. Rosado had
registered the drawings of the “New Super Power Square Pipeline” with the Copyright Office as
a technical drawing on May 21, 2001. ECF 16 at 2. On March 10, 2003, Rosado registered his
book explaining his pipeline design with the Copyright Office, titled “The New Super Power
Square Pipeline That Produce Electricity From Fresh Or Seawater.” ECF 16-1 at 17.
On October 24, 2016, the Court issued its Order granting Plaintiff’s Application to
Proceed in forma pauperis (“IFP”). ECF 11. Pursuant to that Order, Plaintiff had 30 days to
prepare an original summons and submit it to the Clerk of Court for issuance, provide to the
Clerk of Court the original and sufficient service copies of the issued summons and complaint,
and complete and return to the Clerk of Court the U.S. Marshals Service Form (USM 285) for
service of process. On January 12, 2017, Rosado filed a Motion for Default Judgment, but proof
of service on Defendants had not been filed with the Court. ECF 16. The Court denied Rosado’s
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motion and ordered that if Rosado “intends to proceed with this action, he must, on or before
April 28, 2017, either comply with the Court’s Order dated October 24, 2016 (ECF 11) or
otherwise properly serve Defendants without the aid of the U.S. Marshals Service and file with
the Court proper proof of service.” ECF 17.
On April 11, 2017, Summonses were issued for two of the individually named
defendants: “Susan Priddy” (identified as the “Project Director, Lucid Energy”) and “Richerd
Roman” (identified as “CEO, Lucid Energy”). ECF 18. On April 18, 2017, LEI received two
sealed packages of documents at its office address, addressed to the individually-named
defendants. The two packages each contained a Complaint and a Summons (one to individual
defendant Roman and one to individual defendant Priddy). Based on these Summonses and
Complaint directed to LEI’s office, out of an abundance of caution, LEI moved to dismiss
Rosado’s Complaint on May 9, 2017. ECF 21.
On May 2, 2017, the clerk of the Court issued a third Summons requested by Rosado, to
an entity identified as “Lucid Commercial Micro-Hydro Energy System Company,” with LEI’s
office address. On May 23, 2017, this Summons was sent via certified mail, was refused, and
was returned to the U.S. Marshal’s Office. ECF 35. On June 5, 2017, the U.S. Marshals
attempted service on “Lucid Commercial Micro-Hydro Energy System Company” by service to
Ron Peters, a Director at LEI. Mr. Peters refused service in person, stating the “name of
company is not correct” and the Summons was returned as unexecuted. Id.
Regarding the California Defendants, a Summons was issued on April 11, 2017, to the
California Energy Commission. ECF 18. This Summons was accompanied by a Complaint
identifying Roger Johnson, the Deputy Director of the California Energy Commission. ECF 24.
Allan Ward, Associate Chief Counsel for the California Energy Commission, accepted service
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on May 12, 2017. Id. Based on the Complaint and Summons, the California Defendants moved
to dismiss on June 2, 2017.
On May 25, 2017, Rosado filed a motion for Summary Judgment against the individually
named defendants, Roman and Priddy, “for failure to comply with this courts order provided
with service of Summons.”1 ECF 23. The Court construes this motion as a motion for Default
Judgment. On June 19, 2017, Rosado also filed a Motion to Strike the California Defendants’
Motion to Dismiss. ECF 38. The Court construes this motion as Rosado’s opposition brief in
response to the California Defendants’ Motion to Dismiss.
A. LEI’s Motion to Dismiss
1. Insufficient service of process
LEI moves to dismiss Rosado’s Complaint, arguing that service of process was
insufficient. LEI argues that Rosado failed properly to serve LEI under Oregon’s primary service
method or any of the four alternatives. Rosado responds that LEI accuses this Court and the U.S.
Marshal’s Office, rather than Rosado, of violating the service rules.
Challenges to the manner of service are interpreted strictly, even for pro se litigants.
Reeder v. Knapik, 2007 WL 1655812, at *1 (S.D. Cal. June 5, 2007) (dismissing pro se
plaintiff’s complaint finding that “[a] liberal construction of [service] cannot be utilized as a
substitute for the plain legal requirement as to the manner in which service of process may be
had.” (internal quotations and citations omitted)); see also Prewitt Enters., Inc. v. Org. of
Petroleum Exporting Countries, 353 F.3d 916, 924-25 (11th Cir. 2003) (holding that even
Although the Complaint against Roman and Priddy is dismissed for failure to state a
claim as discussed below, it would also be dismissed because service of process was insufficient.
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though the defendant had actual notice of the lawsuit, service of process was ineffective because
it was not in substantial compliance with service requirements).
Rule 4(h) of the Federal Rule of Civil Procedure (“FRCP”) offers two methods for
serving a corporation, partnership, or association. One method of service under FRCP 4(h) is by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized
by appointment or by law to receive service of process and—if the
agent is one authorized by statute and the statute so requires—by
also mailing a copy of each to the defendant
Fed. R. Civ. P. 4(h)(1)(B).
On April 18, 2017, LEI received two sealed packages of documents at its office,
addressed to the individually named defendants. The only person in LEI’s office at the time was
LEI engineer, Bjorn Sorenson, who signed for the delivery of the unopened packages. ECF 22
at 2-3. The two packages each contained the Complaint and Summons (one to individual
defendant Roman and one to individual defendant Priddy). Because this service purported to
serve the individual defendants and not LEI or “Lucid Commercial Micro-Hydro Energy System
Company,” the Court does not consider this service as an attempt to serve the defendant
corporation. The Court notes, however, that neither Priddy nor Roman was employed by LEI at
the time of the purported service and that Sorenson was not an “officer, a managing or general
agent, or any other agent authorized by appointment or by law.” Fed. R. Civ. P. 4(h)(1)(B). Thus,
even if this service had been an attempt to serve LEI or “Lucid Commercial Micro-Hydro
Energy System Company,” it would not have been sufficient.
The U.S. Marshals also attempted to serve the energy corporation defendant at LEI’s
address. In the Summons, Rosado named “Lucid Commercial Micro-Hydro Energy System
Company” as the party to be served. This Summons was sent by certified mail, but was rejected
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and returned. The U.S. Marshals next attempted personal service of the same Summons on Ron
Peters, but he refused stating that the “name of company is not correct.”
Peters is a Director at LEI. As a Director, leaving the Complaint and Summons for
“Lucid Energy, Inc.” with him would have been sufficient to serve that corporate entity. But that
is not what transpired. The Summons was issued to “Lucid Commercial Micro-Hydro Energy
System Company,” not “Lucid Energy, Inc.” LEI asserts that it has never been named, done
business as, or owned any subsidiaries with the name “Lucid Commercial Micro-Hydro Energy
System Company.” Because the Complaint and Summons did not name LEI as a defendant and
was returned to Rosado as unexecuted, the service of process was insufficient pursuant to
The second method of service permitted under FRCP 4(h) is to follow state law for
serving a Summons. Fed. R. Civ. P. 4(h)(1)(A). Service of process on a corporation under
Oregon law is governed by Rule 7 D (3)(b) of the Oregon Rule of Civil Procedure (“ORCP”),
which provides a primary service method and four service alternatives.
a. Oregon’s primary service method
Oregon’s primary method for service on corporations is set forth in ORCP 7 D(3)(b)(i),
which provides that service is to be effected “[b]y personal service or office service upon a
registered agent, officer, or director of the corporation; or by personal service upon any clerk on
duty in the office of a registered agent.” The “office service” option referenced in ORCP 7
D(3)(b)(i) requires leaving copies of the complaint and Summons at the office during normal
working hours with “the person who is apparently in charge.” ORCP 7 D(2)(c). To complete
office service, the plaintiff is required to also mail the Summons and complaint to the
defendant’s “dwelling house or usual place of abode or defendant’s place of business or any
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other place under the circumstances that is most reasonably calculated to apprise the defendant of
the existence and pendency of the action.” Id.
When Peters refused service because the name of the company was incorrect, the U.S.
Marshals did not leave a copy of the Complaint and Summons at LEI’s office, and service via
certified mail was also refused. ECF 35. LEI was not served following Oregon’s primary service
method for corporations.
b. Oregon’s alternative service methods
There are four other service alternatives under Oregon law when “a registered agent,
officer, or director cannot be found in the county where the action is filed.” ORCP 7 D(3)(b)(ii).
As applied to district courts in Oregon, to invoke any of the alternative methods, a plaintiff must
first show that a registered agent, officer, or director could not be found within the county the
court is located in. Rosado has not asserted that a registered agent, officer, or director was not in
the district or county in which this Court is located, nor that he or the U.S. Marshals had to rely
on these alternative methods. Accordingly, the Court agrees with LEI that it has not properly
been named or served in this lawsuit. Because the Court finds that service was improper, it does
not reach LEI’s argument pursuant to FRCP 12(b)(4) regarding insufficient process.
2. Personal Jurisdiction
A federal court’s assertion of personal jurisdiction over a defendant is predicated on
completion of legally sufficient service of process. Mississippi Publ’g Corp. v. Murphree, 326
U.S. 438, 444-45 (1946) (“[S]ervice of summons is the procedure by which a court having venue
and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party
served.”); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685,
688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant unless the
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defendant has been served properly under Fed. R. Civ. P. 4.”). As discussed above, LEI has not
been properly served, thus this Court does not have personal jurisdiction over it.
B. California Defendants’ Motion to Dismiss
The California Defendants move to dismiss Rosado’s Complaint because: (1) the process
and service of process were insufficient; (2) there was a lack of personal jurisdiction; (3) the
California Defendants have Eleventh Amendment Immunity; (4) the California defendants are
not “persons” for claims under 42 U.S.C. § 1983; and (5) Rosado fails to state a claim for relief.
Because the Court finds that Rosado fails to state a claim for relief against any defendant, the
Court does not address the California Defendants’ remaining arguments.
As construed by the Court, Rosado complaint alleges copyright infringement against
Defendants. Although Rosado labelled his complaint as a civil rights claim under 42 U.S.C.
§ 1983, the substance of his complaint shows that it is actually one for copyright infringement.
Moreover, the Court agrees with other courts that have found that the Copyright Act preempts
any § 1983 claim. See Issaenko v. Univ. of Minn., 57 F. Supp. 3d 985, 1019-20 (D. Minn. 2014)
(denying § 1983 relief for copyright infringement because “the Copyright Clause does not secure
to individuals a particular right, but rather is a clause that enables legislative action by
Congress”); Molinelli-Freytes v. Univ. of P.R., 727 F. Supp. 2d 60, 67 (D.P.R. 2010) (dismissing
plaintiff’s § 1983 claim based on copyright infringement because “when Congress enacted the
Copyright Act, it intended for the Act to preempt § 1983 claims based upon the same actions
underlying the Copyright Act claim”); Dodd v. Fort Smith Special Sch. Dist. No. 100, 666 F.
Supp. 1278, 1283 (W.D. Ark. 1987) (finding that “Congress’ clear intent was to bring all
copyright actions within the provisions of the Copyright Act” and not under § 1983 claims).
Liberally construing Rosado’s pleading, as the Court must, the Court turns next to the
issue of whether the Complaint states a valid claim for copyright infringement. To establish
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copyright infringement, two elements must be proven: “(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 361 (1991).
Regarding the first element, a plaintiff cannot maintain an infringement action until it has
registered its work with the Copyright Office. 17 U.S.C. § 411(a) (“[N]o civil action for
infringement of the copyright in any United States work shall be instituted until preregistration or
registration of the copyright claim has been made in accordance with this title.”). The copyright
owner has the exclusive right to reproduce the copyrighted work. Id. § 106. Anyone who violates
this exclusive right infringes on the owner’s copyright. Id. § 501(a).
The scope of copyright protection, however, is limited such that it does not “extend to
any idea, procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Id. § 102(b). “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection
is given only to the expression of the idea—not the idea itself.” Mazer v. Stein, 347 U.S. 201,
217 (1954); see also Baker v. Selden, 101 U.S. 99, 101-02 (1879) (finding that a book describing
a bookkeeping system is worthy of copyright protection, but the underlying method described is
not); Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 703 (2d Cir. 1992); (“It is a
fundamental principle of copyright law that a copyright does not protect an idea, but only the
expression of the idea.”); Erickson v. Blake, 839 F. Supp. 2d 1132, 1136 (D. Or. 2012) (“[I]t is
axiomatic that a copyright only protects expression, not the idea behind the expression.”
Copyright protection is further limited by 17 U.S.C. § 113(b), which states “[t]his title
does not afford, to the owner of copyright in a work that portrays a useful article as such, any
greater or lesser rights with respect to the making, distribution, or display of the useful article so
PAGE 11 – OPINION AND ORDER
portrayed than those afforded to such works under the law.” At least one federal court looked to
the Congressional record preceding the adoption of the Copyright Act to determine if the
manufacture of a “useful article” from a copyrighted technical drawing constituted copyright
infringement. Niemi v. Am. Axle Mfg. & Holding Inc., 2006 WL 2077590, at *3 (E.D. Mich. July
24, 2006). The Congressional record set forth the following examples of the limitation expressed
by 17 U.S.C. § 113(b):
Under distinctions indicated in existing court decisions, that the
copyright in a work portraying a useful article as such would not
protect against manufacture of that article, copyright protection
would not extend to the following cases:
- A copyrighted drawing of a chair, used to manufacture chairs of
- A copyrighted scale model of an automobile, used to manufacture
automobiles of that design;
- A copyrighted technical drawing showing the construction of
a machine used to manufacture the machine;
- A copyrighted picture of a dress, used to manufacture the dress.
Niemi, 2006 WL 2077590, at *3 (emphasis in original) (citing Staff of H.R. Comm. on the
Judiciary, 87th Cong., Rep. of the Register of Copyrights on the General Revision of the U.S.
Copyright Law (1961). Thus, the manufacture of the pipeline from Rosado’s copyrighted
technical drawing is not what Congress intended to be copyright infringement.
Further, it makes no difference if any defendant directly referenced Rosado’s technical
drawings when building the pipeline. See Nat’l Med. Care, Inc. v. Espiritu, 284 F. Supp. 2d 424
(S.D. W. Va. 2003). In Espiritu, one defendant conceded that he had made unauthorized copies
of the plaintiffs’ copyrighted technical drawings of cabinets and used those drawings to create
the defendant’s cabinets. Id. at 433. The plaintiff asked the court to have the defendant remove
the cabinets that had been built from the copied technical drawings. Id. The court found that,
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under 17 U.S.C. § 102(b), the ideas illustrated in the technical drawings were not protected. Id;
see also Niemi, 2006 WL 2077590, at *3. The court in Espiritu ultimately held that copyright
protections do not extend to structures built from technical drawings “regardless of whether
those structures have been built with reference to infringing copies.” Espiritu, 284 F. Supp. 2d at
435. Thus, the copyrighted technical drawings depicting the medicine cabinets were held not to
protect against the manufacture of the medicine cabinets. Id. at 436.
Rosado attempts to expand the scope of copyright protection to include the act of
manufacturing an article using the copyrighted drawing. He cites to no authority, however, and
the Court was unable to find any, to support such protection. A copyright confers on its owner
an exclusive right to reproduce the original work—not the exclusive right to manufacture. It is a
patent that gives its owner a far broader right: “the right to exclude others from making, using,
offering for sale, or selling the invention.” 35 U.S.C. § 154. Rosado, however, has not patented
his pipeline or the process by which one can make energy from water. Thus, Rosado does not
have the exclusive right to manufacture from his technical drawings. He fails to state a claim for
copyright infringement against the energy corporation defendants.
Although the Complaint is not a model of clarity, it appears that Rosado’s claims against
the California Defendants are that they failed to investigate whether LEI (the corporation
licensed in California, although not named in the Complaint) was infringing Rosado’s
copyrighted technical drawings before the California Defendants granted LEI a license to operate
in California. ECF 1 at 10. Because Rosado fails to state a claim that LEI was operating in a
manner that infringes on any protected interest of Rosado, he fails to state a claim against the
California Defendants. Moreover, Rosado has not cited to any authority, and the Court is aware
of none, that required the California Defendants to check the copyright databases to ensure
PAGE 13 – OPINION AND ORDER
whether LEI had any device that was potentially infringing on another’s copyrighted drawings.
Further, even after the potential infringement was called to the attention of the California
Defendants, Rosado has not cited to any authority that would give the California Defendants a
duty, or the authority, to stop LEI. Accordingly, the California Defendants’ motion to dismiss is
C. Dismissal of Claims Against All Remaining Defendants
A complaint filed IFP may be dismissed at any time, including before service of process,
if the Court determines that the action is: (1) “frivolous or malicious”; (2) ”fails to state a claim
on which relief may be granted”; or (3) “seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous “where it lacks
an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see
also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). The term “frivolous,” when used to
describe a complaint, “embraces not only the inarguable legal conclusion, but also the fanciful
factual allegation.” Neitzke, 490 U.S. at 325.
As discussed above, the Court finds that Rosado’s Complaint fails to state a claim for
copyright infringement. Under the Court’s discretion to dismiss a complaint filed IFP, the Court
dismisses Rosado’s Complaint against all Defendants, served and unserved. 28 U.S.C.
§ 1915(e)(2)(B). The Court thus denies Rosado’s motion for summary judgment.
Because Rosado’s complaint is based on copyright protection that cannot serve as a basis
for the relief he seeks, the Court finds that an amendment would be futile. Accordingly, the
Court dismisses this case with prejudice.
Lucid Energy, Inc.’s Motion to Dismiss (ECF 21) is GRANTED. Defendants California
Energy Commission’s and Roger E. Johnson’s Motion to Dismiss (ECF 32) is GRANTED.
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Rosado’s Complaint (ECF 1) is DISMISSED with prejudice. Plaintiff’s Motion for Summary
Judgment (ECF 23) and Motion to Strike (ECF 38) are DENIED. The Court further finds that
any appeal from this Order would not be taken in good faith, and Plaintiff’s in forma pauperis
status should be revoked pursuant to 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
DATED this 11th day of August, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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