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Haji Duncan, Pro Se v. Universal Music Group Inc.

May 30, 2012


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:


Plaintiff Haji Duncan ("plaintiff") filed the instant action, pro se, against defendants UMG Recordings, Inc. ("UMG") and Viacom Inc. ("Viacom") in the Supreme Court of the State of New York, Kings County. UMG properly removed the action to this Court, to which Viacom consented. (See generally Notice of Removal, Doc. Entry No. 1; Consent to Removal, Doc. Entry No. 4.). Plaintiff alleges various claims under the First Amendment and New York statutory and common law arising out of the production and publication of two movies, Get Rich or Die Tryin', and 13. (See generally, Complaint ("Compl."), attached to UMG's Notice of Removal, Doc. Entry No. 1.) UMG and Viacom moved for dismissal with prejudice. (See UMG's Mot. to Dismiss, Doc. Entry No. 17; Viacom's Mot. to Dismiss, Doc. Entry No. 13.) Plaintiff filed a consolidated opposition to both motions. (See Plaintiff's Opposition ("Pl. Opp."), Doc. Entry No. 24). Additionally, plaintiff moved for leave to amend his complaint (see Pl. Mot. for Leave to Am., Doc. Entry No 27) and to join the New York City Department of Homeless Services ("DHS") as an additional defendant (see Pl. Mot. to Join DHS, Doc. Entry No. 28). For the reasons set forth below, the motions to dismiss with prejudice are granted. As any amendment of the complaint would be futile, plaintiff's motion for leave to amend is denied, as is his motion to join DHS as an additional defendant.


Plaintiff seeks $10 million for the alleged use of his identity in two movies, Get Rich or Die Tryin' and 13. The first movie, Get Rich or Die Tryin', is a fictionalized account of the life of rap artist Curtis Jackson who is professionally known as "50 Cent." (See Viacom's Memorandum of Law ("Viacom Mem."), Doc. Entry No. 14, at 4.) In that movie, the antagonist drug lord, "Majestic," is shot and killed by individuals associated with the protagonist, "Marcus," who is played by Jackson. (Id.) Plaintiff alleges that, while he was in prison from 1997-2006 for a bank robbery conviction, he was a member of a prison gang and his nickname was "Majestic." (Compl. ¶¶ 21-22, 27-28.) Plaintiff contends that UMG and Viacom named the antagonist "Majestic" to incite violence against him and that various lines such as "F--- Majestic," "Diss Majestic," are direct, defamatory references to him. (Id. ¶¶ 13(e), 26, 32.)

The second movie, 13, centers on a game of Russian Roulette, in which the film's protagonist Vince, is "Contestant 13." (Viacom Mem. at 5.) Vince wins the game but, nonetheless, is shot and killed at the end of the movie. (Id.) Plaintiff alleges that this movie, too, by way of numeric codes, sends signals to various individuals to harm him. For example, a train displaying the number 4207 is shown in the movie, and plaintiff's birthdate is April 2, 1975. (Compl. ¶ 35.) The letter "M" is the thirteenth letter of the alphabet, and, also, the first letter of "Majestic," plaintiff's nickname. (Id.) Vince, the main character is shot three times in his torso and plaintiff has three tattoos on his torso. (Id.) Additionally, plaintiff alleges that he and his mother have former addresses that consist of digits that, when added, equal the number 13: 292 Lexington Avenue, 436 W. 27th Drive. (Compl. ¶¶ 13(i)(1), 13(e)-(f).)

At the time the parties briefed the instant motions, plaintiff resided in a home operated by DHS. Plaintiff has since sought leave to amend the complaint and to join DHS as an additional defendant. Plaintiff alleges that DHS is involved in a conspiracy with Viacom and UMG to incite violence against him. (See generally Pl. Mot. to Join DHS.)


I. Legal Standards

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The pleading standard under Rule 8 does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). A plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Twombly, 550 U.S. at 555.

On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F. 3d 768, 776 (2d Cir. 2002). The court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F. 3d 147, 153 (2d Cir. 2002); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F. 3d 69, 72 (2d Cir. 1995).

Pro se pleadings are held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should "interpret [such papers] to raise the strongest arguments that they suggest." Forsyth v. Fed'n Emp't & Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation and internal quotation marks omitted). Though a court need not act as an advocate for pro se litigants, in suchcases "there is a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done." Davis v. Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation omitted).

II. Application

A. Plaintiff's First Amendment Claims

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I. It is well settled that a party may not state a claim for a violation of the First Amendment without alleging wrongful conduct by a state actor. See, e.g., Loce v. Time Warner Entm't Advance/Newhouse P'ship, 191 F. 3d 256, 266 (2d Cir. 1999) ("The First Amendment applies only to state actors."). In the instant action, plaintiff alleges three claims under the First Amendment against defendants UMG and Viacom, both of which are private entities. (Compl. ΒΆΒΆ 38-54; Viacom Mem. at 13-14; UMG's Memorandum of Law ("UMG Mem."), Doc. Entry No. 21 at 6-7.) Plaintiff has failed to plead the involvement of a state actor. Moreover, plaintiff's attempt to join DHS to fabricate state conduct where it otherwise does not exist is frivolous. There are no allegations in the complaint or the motion to join DHS suggesting that DHS had ...

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