United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE
Jason Clark, proceeding without counsel, seeks leave to
proceed in forma pauperis [ECF No. 2]. He has filed a
Complaint [ECF No. 1] naming Allen County Child Support and a
clerk of the Allen County Child Support Office. According to
the Complaint, Defendants are liable to Plaintiff for
“private use of [his] Tradename/Trademark via [his] fee
schedule record” in Allen County records. (Compl. at
3.) Plaintiff also requests that Defendants cease and desist
from using his “Tradename/Trademarked information
without a proper licensing agreement.” (Id.)
He asserts that his name, Christopher Jason Clark, enjoys
common law copyright protection.
reasons set forth below, Plaintiff's Motion is denied,
and Plaintiff's Complaint is dismissed under 28 U.S.C.
a plaintiff must pay a statutory filing fee to bring an
action in federal court. 28 U.S.C. § 1914(a). However,
the federal in forma pauperis (IFP) statute, 28 U.S.C. §
1915, provides indigent litigants an opportunity for
meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that
access. See Neitzke v. Williams, 490 U.S. 319
(1989). To authorize a litigant to proceed IFP, a court must
make two determinations: first, whether the litigant is
unable to pay the costs of commencing the action, 28 U.S.C.
§ 1915(a)(1); and second, whether the action is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. Id. §
Court turns to the second inquiry, as it is dispositive.
District courts have authority under § 1915(e)(2)(B) to
screen complaints even before service of the complaint on the
defendants, and must dismiss the complaint if it fails to
state a claim. Rowe v. Shake, 196 F.3d 778, 783 (7th
Cir. 1999). Courts apply the same standard under §
1915(e)(2)(B) as when addressing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th
state a claim under the federal notice pleading standards, a
complaint must set forth a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Factual allegations are
accepted as true and must provide “sufficient detail to
give the defendant ‘fair notice of what the . . . claim
is and the grounds upon which it rests.'” EEOC
v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). However, a plaintiff's allegations
must show that his entitlement to relief is plausible, rather
than merely speculative. Tamayo v. Blagojevich, 526
F.3d 1074, 1083 (7th Cir. 2008). A plaintiff can also plead
himself out of court if he pleads facts that preclude relief.
See Atkins v. City of Chi., 631 F.3d 823, 832 (7th
Cir. 2011); Edwards v. Snyder, 478 F.3d 827, 830
(7th Cir. 2007).
courts are courts of limited jurisdiction, see Johnson v.
U.S. Office of Personnel Mgmt., 783 F.3d 655, 660 (7th
Cir. 2015), and the Plaintiff has the burden to establish
subject matter jurisdiction. See Lee v. City of
Chi., 330 F.3d 456, 468 (7th Cir. 2003). In civil
actions, federal district courts most commonly exercise
federal question jurisdiction or diversity jurisdiction over
cases or controversies. See 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.”); see also 28
U.S.C. § 1332(a) (“The district courts shall have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States[.]”).
lawsuit is premised on the assertion that his name is a
“common-law copyrighted work.” (Compl. at 2.) For
purposes of jurisdiction, the Court will presume that the
reference to common law is a reference to federal law.
Nevertheless, a person's name is not subject to copyright
protection. The Copyright-Patent Clause of the Constitution
provides that “Congress shall have Power . . . To
promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.”
U.S. Const. Art. I § 8, cl. 8. Copyright is concerned
with the rights of authors to control the reproduction and
use of their original intellectual creations. See,
e.g., Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539 (1985). None of the factual
allegations in the Complaint plausibly support a claim for
copyright protection or infringement.
Complaint also references the use of his
“Tradename/Trademark.” “Congress passed the
Lanham Act in 1946 to ‘federalize' existing common
law protection of trademarks used in interstate
commerce.” CAE, Inc. v. Clean Air Eng'g,
Inc., 267 F.3d 660, 672 (7th Cir. 2001). Under federal
law, a trademark is a compact symbol that conveys information
about products or services to potential buyers. See
15 U.S.C. § 1127 (defining trademark to include
“any word, name, symbol, or device or any combination
thereof” used by any person “to identify and
distinguish his or her goods, including a unique product,
from those manufactured or sold by others and to indicate the
source of the goods, even if that source is unknown.”).
A “trade name” is “any name used by a
person to identify his or her business or vocation.” 15
U.S.C. § 1127. Plaintiff has not alleged that his name
is used to identify his business or vocation. No. consumer or
commercial transaction, or sale of goods, is implicated by
the Complaint's factual allegations. Commerce is not the
topic of any of the Complaint allegations.
Complaint states no viable cause of action for the Allen
County Child Support Office's use of Plaintiff's name
in its records. Normally, before dismissing a case under 28
U.S.C. § 1915(e)(2)(B)(ii), a court should give the
litigant, especially a pro se litigant, an opportunity to
amend his complaint, unless “it is certain
from the face of the complaint that any amendment would be
futile or otherwise unwarranted.” Tate v. SCR Med.
Transp., 809 F.3d 343, 346 (7th Cir. 2015) (quoting
Barry Aviation Inc. v. Land O'Lakes Mun. Airport
Comm'n, 377 F.3d 682, 687 (7th Cir. 2004) (emphasis
in Tate). Here, the laws that Plaintiff has
attempted to invoke do not apply to the factual scenario of
using his name in child support records. Nor can the Court
conceive of any that would. Although the deficiencies in
Plaintiff's Complaint do not appear curable, the Court
will permit Plaintiff to submit an amended complaint before
deciding whether to dismiss the suit in its entirety.
foregoing reasons, the Court:
DENIES the Plaintiff's Motion for Leave to Proceed in