Johnson v. Jackson

AARON LAMONT JOHNSON, Plaintiff, v. CURTIS JACKSON, et al., Defendants.

Case No.: 2:20-cv-1710-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

July 7, 2021

MEMORANDUM OPINION

This matter is before the court on Defendant John Doe Owner of ABC 33/40 Corporation's¹ Motion to Dismiss (Doc. # 5) Plaintiff Aaron Lamont Johnson's Complaint (Doc. # 1-1) for failure to state a claim upon which relief can be granted. The Motion is fully briefed. (Docs. # 6, 33). After careful consideration, and for the reasons discussed below, Joe Doe Owner's Motion to Dismiss (Doc. # 5) is due to be granted.

I. Background²

Plaintiff is a prisoner in the custody of the Alabama Department of Corrections at its William E. Donaldson correctional facility. (Doc. # 1-1 ¶ 3). Plaintiff was convicted of murder and sentenced to life without parole.³ (Doc. # 5-3 at 2). Plaintiff alleges that "police informers caused [him] to be wrongfully convicted," the government "withheld and suppressed exculpatory evidence," and he is "actual[ly] innocent." (Doc. # 1-1 ¶¶ 29, 15, 30).

While incarcerated, Plaintiff has earned a "legal degree[]." (Id. ¶ 17). He has represented himself and "other prisoners in court and prison [a]dministrative proceedings." (Id. ¶ 18). And, prisoners have been released as a result of these proceedings. (Id. ¶ 19).

Plaintiff mailed copies of his life story and criminal records to Defendants. (Id. ¶ 9). Plaintiff alleges that Defendants, "without his consent[,] benefited from the commercial use of his name and life story [] by imitating him on the public television show 'For Life' as [the] fictional character 'Aaron Wallace.'" (Id. ¶ 8). Plaintiff alleges a few "similarities" between "his life story and [Defendants'] fictional character" Wallace. (Id. ¶ 11). Specifically, he alleges that both he and the fictional character share common characteristics: they have the same first name, "Aaron"; they each claim they are innocent of the crimes for which they were convicted; they each claim police informers caused them to be wrongly convicted; they each claim prosecutors withheld exculpatory evidence from their defenses; they each have "legal degrees"; and they each have generally and successfully prevailed in litigation freeing other prisoners and obtaining other relief against wardens of prisons. (Id. ¶¶ 12-15, 17-21).

Based on these allegations, Plaintiff asserts two claims against Defendants. In Count One, Plaintiff contends that Defendants violated his "right to pr[]ivacy under the First Amendment of the United States Constitution and Section 3 of the Alabama Constitution." (Id. ¶ 8). In Count Two, he asserts that Defendants violated his "right of publicity" under the Alabama Right of Publicity Act. (Id. ¶ 24).

II. Standard of Review

The Federal Rules of Civil Procedure require a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must include enough facts "to raise a right to relief above the speculative level." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that include nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor will "labels and conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion, the court views a complaint's allegations in the light most favorable to the non-movant. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(b), a complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although "[t]he plausibility standard is not akin to a 'probability requirement,'" a complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). A plausible claim for relief requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. Appx. 136, 138 (11th Cir. 2011) (unpublished) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). The task is context specific and, to survive the motion, allegations must permit the court, based on its "judicial experience and common sense ... to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a plausible claim, dismissal is appropriate. Twombly, 550 U.S. at 570.

III. Analysis

John Doe Owner has moved for the dismissal of Plaintiff's Complaint (Doc. # 1-1) for failure to state a claim upon which relief can be granted. (Doc. # 6). Specifically, John Doe Owner argues Plaintiff's complaint is due to be dismissed under Rule 12(b)(6) for failing to allege a claim under the Alabama Right of Publicity Act, for falling into the fair use exception of the Alabama Right of Publicity Act, and because Defendants' television show is protected under the First Amendment. (Id.). The court agrees. Each of these three reasons provides an independent and alternative ground for dismissing Count Two. Accordingly, John Doe Owner's motion is due to be granted. Before addressing John Doe Owner's arguments, the court first addresses Plaintiff's right to privacy claim.

A. Right to Privacy

In Count One, Plaintiff alleges that Defendants violated his "right to privacy" under the First Amendment of the United States Constitution and Section 4 of the Alabama Constitution of 1904. (Doc. # 1-1 at 3, ¶ 8). Count I is due to be dismissed because there is no right to privacy guaranteed under either of the federal and state constitutional provisions that Plaintiff has put at issue, at least in the context presented here. U.S. Const. amend. I; Ala. Const. § 4. Further, even if there is a right to privacy under either of the constitutional provisions Plaintiff points to, Defendants are private actors. Absent circumstances not present here, only state actors can infringe on an individual's constitutional rights. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019); State v. City of Birmingham, 299 So. 3d 220, 234 (Ala. 2019).

B. Right to Publicity

In Count Two, Plaintiff asserts a claim under the Alabama Right of Publicity Act,⁴ alleging that Defendants violated his right of publicity by developing the character "Aaron Wallace" in the television show "For Life." (Doc. # 1-1 at 6 (citing Ala. Code §§ 6-5-772, 774)). The Right of Publicity Act imposes liability upon any "person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services ... without [that person's] consent." Ala. Code § 6-5-772. And, Alabama defines indicia of identity to "[i]nclude those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more of those attributes." Ala. Code § 6-5-771(1). However, mere similar characteristics are not enough to infringe on a person's right of publicity "unless the plaintiff is identified by the defendant's use." Restatement (Third) of Unfair Competition § 46, comment d (1995).

There are two general categories of characteristics that Plaintiff alleges establish the indicia necessary to show that Defendants appropriated his identity in "For Life." But, these characteristics (alone or in combination) are insufficient as a matter of law to establish that Defendants violated Plaintiff's right of publicity. The first is Defendants' use of Plaintiff's first name. However, using a person's first name is insufficient as a matter of law to establish an indicia of identity where there is no significance between the first name and the context in which it is used. Restatement (Second) of Torts § 652C, comment c. (1977); see, e.g., Hooker v. Columbia Pictures Indus., Inc., 551 F. Supp. 1060, 1061 (N.D. Ill. 1982); see Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d831, 836 (6th Cir. 1983) (holding that the phrase "Here's Johnny" identifies Johnny Carson only in context). Rather, a first name must be used in such a manner that it is "understood by the audience [that it] refers to the plaintiff." Restatement (Third) of Unfair Competition § 46, comment d (1995). Thus, Defendants' use of Plaintiff's first name is insufficient alone. See Hooker, 551 F. Supp. at 1061 (dismissing complaint where defendant's use of plaintiff's first and last name did not identify plaintiff); Restatement (Second) of Torts § 652C (1977) ("[T]he defendant is free to call himself by any name he likes, whether there is only one person or a thousand others of the same name.").

The second general category of allegations that Plaintiff asserts shows that Defendants wrongfully appropriated his identity relates to Plaintiff's life experience. However, the combination of Plaintiff's name and the events contained in his life story (that overlap with the fictional character, Aaron Wallace) is not enough to advance his claim. An indicia of identity does not include "include general incidents from a person's life, especially when fictionalized. The narrative of an...