Griffin v. Google

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

CASIMIR P. GRIFFIN,

Plaintiff, CIVIL ACTION NO.: 2:19-cv-132

v.

GOOGLE, et al.,

Defendants.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Orange County Jail in Goshen, New York, filed this private

civil action, asserting claims involving copyright infringement, breach of contract, fraud,

conspiracy, negligence, wire fraud, and mail fraud. Doc. 2 at 2. The Southern District of New

York transferred this action due to venue requirements. Doc. 5. Although Plaintiff used a 42

U.S.C. § 1983 complaint form, Plaintiff only asserts claims against private individuals. Plaintiff

asserts the majority of his claims against Henry H. Cambell and Tammy Jernigan but has also

sued numerous social media companies and online retailers, such as Google, Amazon, Facebook,

Instagram, and LinkedIn. Doc. 2 at 6–10. This matter is before the Court for a frivolity

screening under 28 U.S.C. § 1915(e). For the reasons stated below, I RECOMMEND the Court

DISMISS Plaintiff’s copyright infringement claim against Defendant Cambell. I

RECOMMEND the Court DISMISS Plaintiff’s claims against Defendants Facebook, Amazon,

Google, Instagram, LinkedIn, Jeff Bezos, and John and Jane Doe(s). I also RECOMMEND the

Court DISMISS Plaintiff’s First Amendment, “constitutional rights,” abuse of process, mail

fraud, wire fraud, bank fraud, strict liability, slander, libel, and defamation claims against all

Defendants. I further RECOMMEND the Court DISMISS Plaintiff’s damages claims for “Qui

Tam action fees” and “taxes owed” under 26 U.S.C. § 165 and DENY Plaintiff’s Motion for

Summary Judgment. However, I FIND that some of Plaintiff’s claims may proceed.

Specifically, the Court will direct service of Plaintiff’s copyright infringement claim against

Defendant Tammy Jernigan and breach of contract, fraud, conspiracy, negligence, and “trespass

to property” claims against Defendants Henry H. Cambell and Tammy Jernigan by separate

Order.

PLAINTIFF’S CLAIMS1

Plaintiff asserts that in 2016, he began discussing a book publishing deal with Tammy

Jernigan through Facebook. Doc. 2 at 6. Plaintiff entered into a publishing contract for five of

his books with Tammy Jernigan and Henry Cambell. Id. Plaintiff alleges he provided three

books in person, two via email (using Google’s Gmail), and one by mail. Id. Plaintiff claims

Ms. Jernigan owned “Creative Inspirations Imprint,” while Mr. Cambell owned “Harddrive

Publishing Imprint.” Id. Plaintiff claims this contract required he provide a manuscript every six

months until all five books were released. Id. at 6–7. Plaintiff asserts the contract states the first

book would be released in 2018. Id. at 7. Plaintiff claims after he entered into this agreement,

he “was asked to do a book cover” for promotional purposes. Id. at 6. He then posted the book

cover to Facebook and Instagram. Id.

Plaintiff claims there were significant delays by Ms. Jernigan in publishing the first book.

Id. at 7. Plaintiff then learned that “Hard Drive Publishing” was not a real company. Id. He also

learned Ms. Jernigan and Mr. Cambell had little publishing experience. Id. When Plaintiff

1 All allegations set forth here are taken from Plaintiff’s Complaint. Doc. 2. During frivolity

review under 28 U.S.C. § 1915A, “[t]he complaint’s factual allegations must be accepted as true.”

Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).

brought this to Ms. Jernigan’s attention, Ms. Jernigan and Plaintiff agreed she would not publish

any of the books and Ms. Jernigan would return the manuscripts and erase all other copies. Id.

Ms. Jernigan did not return the manuscripts. Id. at 7–9. After further phone discussions,

Plaintiff claims Ms. Jernigan demanded payment from Plaintiff for the book covers and editing

costs before she would mail the manuscripts back to him. Id. at 8. After meeting with Ms.

Jernigan in person, she insisted on publishing the book. Id. Ms. Jernigan sent Plaintiff a new

contract “via Google” that Plaintiff signed in January 2018. Id. at 9. Plaintiff claims this

contract specified he and Ms. Jernigan would split any profits “50/50.” Id. Plaintiff asserts that

the first book he authored, entitled “Project Mayhem,” was published and listed on Amazon and

“other sites” on May 18, 2018 and July 6, 2018. Id. Plaintiff has not received any proceeds from

Ms. Jernigan. Id. at 9–10.

Plaintiff alleges Ms. Jernigan infringed on his copyright and breached their contract by

publishing the book without his permission and withholding payment from him. Id. at 10.

Plaintiff also claims Defendants acted in concert to conspire to commit wire fraud and mail

fraud. Id. Plaintiff further alleges that Defendants violated his First Amendment and

constitutional rights. Id. As for the social media and online retailers, Plaintiff claims “[n]o

screening took place by Google, Amazon, Instagram, LinkedIn, et. al. to even see if it’s [sic]

clients were legal entities.” Id. Plaintiff has also sued Jeff Bezos, CEO of Amazon, in his

official and individual capacities, and John and Jane Doe(s), the unknown board of directors of

all of the above companies, in their official and individual capacities. Id. at 1, 4. Finally,

Plaintiff alleges fraud, abuse of process, bank fraud, negligence, strict liability, breach of duty,

slander, libel, defamation, trespass to property, emotional distress, and negligence. Id. at 10.

Plaintiff seeks $5,000,000 in compensatory damages, $10,000,000 in punitive damages,

attorney’s fees, all court costs, “Qui Tam action fees,” and taxes owed under 25 U.S.C. § 165.

Id. at 11. In addition, Plaintiff seeks damages for emotional distress, mental anguish, and

damage to reputation. Id. at 10. Plaintiff also moves for summary judgment in his Complaint.

Id.

STANDARD OF REVIEW

A federal court should conduct an initial screening of all complaints filed by prisoners

and pro se plaintiffs proceeding in forma pauperis. 28 U.S.C. § 1915(e). The court must dismiss

the complaint (or any portion of the complaint) that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or which seeks monetary relief from a defendant who is

immune from such relief. Id. The pleadings of unrepresented parties are held to a less stringent

standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v.

Kerner, 404 U.S. 519, 520 (1972).

A claim is frivolous under § 1915(e)(2)(B)(i) if it is “without arguable merit either in law

or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251

F.3d 1346, 1349 (11th Cir. 2001)). In order to state a claim upon which relief may be granted, a

complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). To state a claim, a complaint must contain “more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not”

suffice. Twombly, 550 U.S. at 555.

ANALYSIS

I. Tammy Jernigan and Henry Cambell

A. Copyright

Plaintiff states sufficient factual matter for a plausible copyright infringement claim

against Tammy Jernigan. There are two requisite elements for a copyright infringement claim:

(1) ownership of a valid copyright; and (2) copying of “constituent elements of the copyrighted

work that are original.” Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir. 2002)

(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). First, Plaintiff

alleges in his Complaint he owns a valid copyright in the book “Project Mayhem” and the other

books he provided to Ms. Jernigan. Doc. 2 at 8–9. A book is a sufficiently original work to

receive copyright protection. Second, Plaintiff alleges Tammy Jernigan has copied his book and

violated his reproduction rights by listing “Project Mayhem” on Amazon and “other sites”

without his permission. Id. Therefore, I FIND Plaintiff’s copyright claim against Ms. Jernigan

may proceed.

Plaintiff has not specified which Defendants against whom he intends to assert his

copyright infringement claim. Id. at 2. However, Plaintiff has not stated sufficient factual

information to assert a copyright claim against Henry Cambell. Iqbal, 556 U.S. at 678. Plaintiff

alleges Ms. Jernigan moved forward with publishing his book only after Mr. Cambell backed out

of the deal. Doc. 2 at 7–8. Therefore, he was not involved with copying the copyrighted work

based on Plaintiff’s allegations. Thus, I RECOMMEND the Court DISMISS any copyright

claim asserted against Mr. Cambell.

B. Breach of Contract

Plaintiff also states plausible breach of contract claims against both Ms. Jernigan and Mr.

Cambell. Plaintiff’s breach of contract claims concern two different contracts.

First, Plaintiff alleges he entered into an agreement with both Ms. Jernigan and Mr.

Cambell for the publication of five books. Doc. 2 at 6–7. While the allegations are somewhat

ambiguous, Plaintiff appears to allege Ms. Jernigan breached the first contract by not paying

him, not publishing or editing the first book in a timely manner, and not publishing the four

additional books. Plaintiff claims Mr. Cambell breached the contract by failing to participate in

the publication process at all, as required under the contract. Id. at 7–9. Plaintiff suffered

damages due to the breach of the first contract by not receiving payments that were due to him

pursuant to the contract. Id. at 9. It appears Plaintiff has the right to complain about the breach

because he claims to have met his obligations by providing manuscripts. Id. at 6. Therefore,

Plaintiff’s breach of contract claim based the first contract, asserted against Ms. Jernigan and Mr.

Cambell, shall proceed.

Second, Plaintiff alleges he entered into a contract with Ms. Jernigan alone after Ms.

Jernigan and Mr. Cambell breached the first contract. Id. at 8–9. According to the allegations in

Plaintiff’s Complaint, this contract only related to the publication of the “Project Mayhem” book.

Id. Plaintiff claims Ms. Jernigan breached the second contract by failing to pay him his half of

the book proceeds. Id. Therefore, Plaintiff properly alleges damages, and he has a right to

complain about the breach if he has satisfied his obligations under the contract. For these

reasons, I FIND Plaintiff has stated plausible breach of contract claims with arguable merit

against both Ms. Jernigan and Mr. Cambell.

C. Fraud

Plaintiff fraud claim against Ms. Jernigan and Mr. Cambell shall also proceed. “The five

elements of fraud . . . are (1) false representation made by the defendant; (2) scienter; (3) an

intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4)

justifiable reliance by the plaintiff; (5) damage to the plaintiff.” Johnson v. GAPVT Motors,

Inc., 663 S.E.2d 779, 783 (Ga. Ct. App. 2008). Plaintiff alleges Ms. Jernigan and Mr. Cambell

misrepresented their publishing experience and that “Harddrive Publishing Imprint” was a real

company. Id. at 6–7. Plaintiff appears to claim that Ms. Jernigan and Mr. Campbell knew this

information was false and intended to induce Plaintiff to enter the initial publishing contract with

them by making these misrepresentations. Id. Plaintiff alleges he did enter into the initial

agreement and suffered damage by not receiving payment for his work on the books. Id. at 6, 9–

10. Therefore, I FIND Plaintiff’s fraud claim shall proceed.

D. Conspiracy

Plaintiff civil conspiracy claim against Ms. Jernigan and Mr. Cambell shall also proceed.

Plaintiff claims Ms. Jernigan and Mr. Cambell agreed and conspired together to commit fraud, as

discussed. Doc. 2 at 7. Therefore, I FIND Plaintiff has stated a civil conspiracy claim with

arguable merit.

E. Negligence

Plaintiff separately discusses “breach of duty,” negligent policies and hiring, and general

negligence in his Complaint. Id. at 10. The Court assumes these terms all relate to a single

negligence claim, as there is not a separate cause of action for “breach of duty.” Plaintiff states

sufficient factual allegations against Ms. Jernigan and Mr. Cambell to amount to a negligence

claim, in the alternative to Plaintiff’s other claims. Plaintiff claims Ms. Jernigan and Mr.

Cambell failed to use reasonable care in their communications with him and in publishing the

first book. Doc. 2 at 7–9. Plaintiff further claims Ms. Jernigan failed to use reasonable care by

bringing Mr. Cambell in on the project even though he did not actually own a publishing

company. Id. at 9.

For these reasons, I FIND Plaintiff’s negligence claim against Ms. Jernigan and Mr.

Cambell shall proceed. But, as discussed further below, any negligence claim asserted against

the social media companies and Amazon should be dismissed.

F. Trespass to Property

Plaintiff generally discusses a “trespass to property” claim in his Complaint. Id. at 10.

Given the facts discussed in detail above, the Court construes Plaintiff’s claim as a trespass to

chattels claim. Plaintiff claim based on the allegation that Ms. Jernigan stole his book. Id. at 9.

For this reason, I FIND Plaintiff’s claim of trespass to property against Ms. Jernigan shall

proceed.

II. Social Media Defendants and Amazon

Plaintiff does not state a sufficient legal or factual basis for liability against Facebook,

Amazon, Google, Instagram, LinkedIn, or Amazon. Plaintiff only alleges these Defendants

failed to screen to make sure their users were legal entities without providing any other basis for

liability.2 Doc. 2 at 10. Plaintiff does not allege any of these Defendants knew or should have

known of Ms. Jernigan or Mr. Cambell’s conduct.

Aside from some very limited exceptions, which are not applicable here, internet

companies, including social media companies, are generally immune from suit for content posted

2 Plaintiff actually does not state any factual basis for liability against Facebook, but the Court

assumes Plaintiff also wished to assert a similar claim against Facebook because he used the phrase “et

al.”

on their platforms by third parties under the Communications Decency Act. 47 U.S.C. § 230;

Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321–22 (11th Cir. 2006). For this reason,

Plaintiff does not state a plausible claim against Facebook, Google, Instagram, LinkedIn, or

Amazon. Thus, Plaintiff does not plausibly allege these companies were obligated to screen

private messages to Plaintiff or to warn Plaintiff “Harddrive Publishing Imprint” was not a real

company. Further, Plaintiff does not allege Defendants Jernigan or Campbell ever used

Instagram, only that he used it to promote the book. Plaintiff also does not allege he ever

communicated with Defendants Jernigan or Campbell through LinkedIn.

Because these companies appear to be immune from suit under the Act, Plaintiff cannot

sue officers of the corporations or the board of directors in their official capacity for the same

conduct. Doc. 2 at 1, 4. Plaintiff also sues Jeff Bezos and “Jane and John Doe(s)” board of

directors in their individual capacities. Id. Because Plaintiff does not allege any specific action

these individuals took outside of their role of running the corporation, this claim fails as well.

For these reasons, Plaintiff has not stated plausible claims against Facebook, Amazon,

Google, Instagram, LinkedIn, Jeff Bezos, and Jane and John Doe(s). I RECOMMEND the

Court DISMISS all claims against these Defendants.

III. Other Claims

A. Constitutional Rights

Plaintiff claims all Defendants have violated his First Amendment and “constitutional

rights.” It is a well-established principle of constitutional law that individual rights only run

against government actors and not private individuals. The only exception to this rule is if the

private actor participates in a course of state action. See Edmonson v. Leesville Concrete Co.,

Inc., 500 U.S. 614, 620 (1991). Plaintiff has only sued private companies and individuals and

does not allege that any of the Defendants engaged in state action. Thus, the Court should

DISMISS these claims.

B. Abuse of Process

Plaintiff asserts an abuse of process claim against all Defendants. Nowhere in his

Complaint does Plaintiff discuss any prior judicial proceeding. Therefore, Plaintiff has not stated

a plausible abuse of process claim. See Lane Co. v. Taylor, 330 S.E.2d 112, 119 (Ga. Ct. App.

1985) (discussing requirements of an abuse of process claim, which includes a civil proceeding).

The Court should DISMISS this claim.

C. Mail, Wire, and Bank Fraud

Plaintiff also asserts Defendants committed mail fraud, wire fraud, and bank fraud.

These are criminal offenses rather than civil causes of action. Because Plaintiff discusses

interstate commerce and a conspiracy in his Complaint, the Court assumes Plaintiff intends to

bring a civil Racketeer Influence and Corrupt Organization Act (“RICO”) claim. A RICO claim

requires a “pattern of racketeering activity.” 18 U.S.C. § 1962. Although racketeering activities

can include mail fraud or wire fraud, Plaintiff has not alleged any “pattern” by Defendants. In

fact, Plaintiff does not allege even one occurrence of mail fraud, wire fraud, or bank fraud in his

Complaint. Plaintiff only asserts he mailed Ms. Jernigan book manuscripts, not that Ms.

Jernigan mailed him anything in return. Doc. 2 at 6. It appears all other communications

between Plaintiff and Defendants occurred through Google, Facebook, and possibly other social

media platforms. For these reasons, Plaintiff has not stated a plausible civil RICO claim, and the

Court should DISMISS these claims.

D. Strict Liability

Plaintiff mentions strict liability in his Complaint. Plaintiff has not stated any factual

reason why strict liability should apply in this case; therefore, the Court should DISMISS any

strict liability claim Plaintiff may allege.

E. Defamation

Plaintiff discusses “slander, liebel, [and] defamation [sic]” in his Complaint. Id. at 10.

These are mere legal conclusions without any factual support. Plaintiff does not assert

Defendants ever said or wrote something that was untrue or misleading about him. See Eason v.

Marine Terminals Corp., 710 S.E.2d 867, 871 (Ga. Ct. App. 2011) (stating that one of the

requirements for a defamation action is “a false and defamatory statement concerning the

plaintiff”). Therefore, these claims are without arguable factual merit and should be

DISMISSED.

F. Damages

Plaintiff seeks “Qui Tam action fees” under 31 U.S.C. § 3113. Doc. 2 at 11. This Code

section does not correlate with qui tam actions and only discusses gifts to the Secretary of the

Treasury. Regardless, a qui tam action is a whistleblower suit, and Plaintiff has not brought any

similar cause of action. See 31 U.S.C. § 3730. Plaintiff does not allege Defendants defrauded

the United States government in any way, which is what a qui tam suit typically requires.

See id.; Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008). Plaintiff also seeks “taxes owed on

funds paid here from per 26 U.S.C. § 165.” Doc. 2 at 11. This Code provision governs losses as

a tax deduction under the Internal Revenue Code. Any such deduction, if applicable, should be

sought through the Internal Revenue Service and is not recoverable as damages in a court of law.

For these reasons, I RECOMMEND the Court DISMISS these claims.

IV. Motion for Summary Judgment

As noted above, Plaintiff moves for summary judgment. Summary judgment is required

where “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary

judgment bears the burden of demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must

show the court that there is an absence of evidence to support the nonmoving party’s case. Id. at

325. A fact is “material” if it “might affect the outcome of the suit under the governing law.”

FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over such a fact is “genuine” if the

“evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In

making this determination, the court is to view all of the evidence in the light most favorable to

the nonmoving party and draw all reasonable inferences in that party’s favor. Johnson v. Booker

T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

Plaintiff’s Motion for Summary Judgment is premature. The Court has yet to order

service of Plaintiff’s Complaint. As a result, the parties have not had any opportunity to conduct

discovery. “The law in this circuit is clear: the party opposing a motion for summary judgment

should be permitted an adequate opportunity to complete discovery prior to consideration of the

motion.” Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997). No such discovery has

occurred here. Regardless, Plaintiff has failed to present evidence at this point to warrant

granting summary judgment. Adigun v. Express Scripts, Inc., No. CV 216-39, 2017 WL

1199754, at *1 (S.D. Ga. Mar. 30, 2017), reconsideration denied, 2017 WL 5618284 (S.D. Ga.

Nov. 21, 2017). For these reasons, I RECOMMEND the Court DENY Plaintiff’s Motion for

Summary Judgment.

CONCLUSION

For the reasons stated above, I RECOMMEND the Court DISMISS Plaintiff’s copyright

infringement claim against Defendant Cambell. I RECOMMEND the Court DISMISS

Plaintiff’s claims against Defendants Facebook, Amazon, Google, Instagram, LinkedIn, Jeff

Bezos, and John and Jane Doe(s). I also RECOMMEND the Court DISMISS Plaintiff’s First

Amendment, “constitutional rights,” abuse of process, mail fraud, wire fraud, bank fraud, strict

liability, slander, libel, and defamation claims against all Defendants. I further RECOMMEND

the Court DISMISS Plaintiff’s damages claims for “Qui Tam action fees” and “taxes owed”

under 26 U.S.C. § 165 and DENY Plaintiff’s Motion for Summary Judgment. However, I FIND

that some of Plaintiff’s claims may proceed. Specifically, the Court will direct service of

Plaintiff’s copyright infringement claim against Defendant Tammy Jernigan and breach of

contract, fraud, conspiracy, negligence, and “trespass to property” claims against Defendants

Henry H. Cambell and Tammy Jernigan by separate Order.

Any objections to this Report and Recommendation shall be filed within 14 days of

today’s date. Objections shall be specific and in writing. Any objection that the Magistrate

Judge failed to address a contention raised in the Complaint must be included. Failure to file

timely, written objections will bar any later challenge or review of the Magistrate Judge’s factual

findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep’t

Station #4, No. 17-11264, 2020 WL 6039905, at *4 (11th Cir. Oct. 13, 2020). To be clear, a

party waives all rights to challenge the Magistrate Judge’s factual findings and legal conclusions

on appeal by failing to file timely, written objections. Harrigan, 2020 WL 6039905, at *4; 11th

Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.

Upon receipt of Objections meeting the specificity requirement set out above, a United

States District Judge will make a de novo determination of those portions of the report, proposed

findings, or recommendation to which objection is made and may accept, reject, or modify in

whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

meeting the specificity requirement set out above will not be considered by a District Judge. A

party may not appeal a Magistrate Judge’s report and recommendation directly to the United

States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

judgment entered by or at the direction of a District Judge.

SO REPORTED and RECOMMENDED, this 18th day of November, 2020.

Bor

BENJAMIN W. CHEESBRO

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

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