Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 1 of 6 - Page ID#: 24
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF KENTUCKY
`NORTHERN DIVISION at COVINGTON
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`Plaintiff,
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`BASILWARREN LEWIS, JR.,
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`v.
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`PHIL KNIGHT, et al.,
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`Defendants.
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`Civil No. 2:22-73-HRW
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`
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`MEMORANDUM OPINION
`AND ORDER
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`)))))))))
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`*** *** *** ***
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`Plaintiff Basil Warren Lewis, Jr., has filed a pro se civil complaint. [D. E.
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`No. 1] The Court has granted his motion for leave to proceed in forma pauperis by
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`separate Order. The Court must review the complaint prior to service of process,
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`and dismiss any claim that is frivolous or malicious, fails to state a claim upon which
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`relief may be granted, or seeks monetary relief from a defendant who is immune
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`from such relief. 28 U.S.C. § 1915(e)(2); Hill v. Lappin, 630 F. 3d 468, 470-71 (6th
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`Cir. 2010). At this stage, the Court accepts all non-conclusory factual allegations in
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`the complaint as true and liberally construes its legal claims in the plaintiff’s favor.
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`Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
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`Lewis states that in June 1985 he sent Nike, a company that makes athletic
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`shoes, a design he called the “2001 Concept.” Lewis does not describe this design
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`in his complaint. A month after he sent his letter, Lewis received correspondence
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`1
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`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF KENTUCKY
`NORTHERN DIVISION at COVINGTON
`
`Plaintiff,
`
`BASILWARREN LEWIS, JR.,
`
`
`
`v.
`
`PHIL KNIGHT, et al.,
`
`
`
`Defendants.
`
`
`
`
`
`Civil No. 2:22-73-HRW
`
`
`
`MEMORANDUM OPINION
`AND ORDER
`
`
`
`
`
`
`)))))))))
`
`
`*** *** *** ***
`
`Plaintiff Basil Warren Lewis, Jr., has filed a pro se civil complaint. [D. E.
`
`No. 1] The Court has granted his motion for leave to proceed in forma pauperis by
`
`separate Order. The Court must review the complaint prior to service of process,
`
`and dismiss any claim that is frivolous or malicious, fails to state a claim upon which
`
`relief may be granted, or seeks monetary relief from a defendant who is immune
`
`from such relief. 28 U.S.C. § 1915(e)(2); Hill v. Lappin, 630 F. 3d 468, 470-71 (6th
`
`Cir. 2010). At this stage, the Court accepts all non-conclusory factual allegations in
`
`the complaint as true and liberally construes its legal claims in the plaintiff’s favor.
`
`Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
`
`
`
`Lewis states that in June 1985 he sent Nike, a company that makes athletic
`
`shoes, a design he called the “2001 Concept.” Lewis does not describe this design
`
`in his complaint. A month after he sent his letter, Lewis received correspondence
`
`
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`1
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`Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 2 of 6 - Page ID#: 25
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`from Nike stating that they liked the design and would keep it on file. In October
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`1986 Lewis wrote Nike another letter about his design, to which Nike again
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`responded that the company liked the design and would keep it on file. [D. E. No. 1
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`at 2] Lewis alleges that in 1987 he saw a Nike shoe for sale at a shopping mall called
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`the “Air Revolution,” which he indicates was the same as his “2001 Concept.” He
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`asserts that his design was also incorporated into the “Jordan” line of shoes sold by
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`Nike in the ensuing years. Id. at 3. Lewis names as defendants Phil Knight, the
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`owner of Nike; the “Michael Jordan brand” at Nike; and Tinker Hatfield, a designer
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`at Nike. Lewis contends that the defendants “violated my age, idea, and race – they
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`took an idea from a 18 year old kid going to college trying to impress them” and that
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`he was not compensated for his work. Lewis seeks damages. [D. E. No. 1 at 4, 8]
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`
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`The Court has reviewed Lewis’s complaint, but concludes that it must be
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`dismissed for several reasons. First, while Lewis describes the actions of Nike as a
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`company, he did not name it as a defendant. Conversely, Lewis names several
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`individuals affiliated with the company as defendants, but he makes no allegations
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`against them. This is not sufficient to state a viable claim. Federal notice pleading
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`requires, at a minimum, that the complaint advise each defendant of what he
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`allegedly did or did not do that forms the basis of the plaintiff’s claim against him.
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`Sampson v. Garrett, 917 F. 3d 880, 882 (6th Cir. 2019) (“[e]ven a pro se prisoner
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`must link his allegations to material facts … and indicate what each defendant did
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`2
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`Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 3 of 6 - Page ID#: 26
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`to violate his rights …”); Reilly v. Vadlamudi, 680 F. 3d 617, 626 (6th Cir. 2012)
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`(“Plaintiff must state a plausible constitutional violation against each individual
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`defendant - the collective acts of defendants cannot be ascribed to each individual
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`defendant.”).
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`
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`Second, while Lewis filed his complaint on the Court’s approved form to
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`assert civil rights claims, it does not appear that Lewis intends to assert such claims.
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`Nor could he – none of the defendants are government officials, and hence do not
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`act “under color of state law” as required to state a viable civil rights claim. The
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`conduct of private individuals, even if discriminatory or wrongful, is not actionable
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`under Section 1983. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50
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`(1999). In any event, the statute of limitations to assert civil rights claims arising in
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`Kentucky is one year. Bonner v. Perry, 564 F.3d 424, 431 (6th Cir. 2009). Lewis’s
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`claims accrued no later than 1987, and thus the limitations period for any such claim
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`has long since expired.
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`
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`Lewis claims that the defendants “violated my age, idea, and race.” [D. E.
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`No. 1 at 4] This statement is not sufficient to adequately state a claim against any
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`defendant. While Lewis mentions race, his complaint contains no allegations at all
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`about race or how it affected the events about which he complains. Nor does he
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`articulate a race-based claim relevant to the events he describes, and none suggests
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`itself to the Court. So too for Lewis’s youth at the time of these events. Lewis does
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`3
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`Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 4 of 6 - Page ID#: 27
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`not have an attorney, so the Court must liberally construe what he does say in his
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`complaint to see if he might have a viable claim. Erickson v. Pardus, 551 U.S. 89,
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`94 (2007). But this rule has meaningful limits: the plaintiff must still articulate a
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`claim, and the district court is not required to conjure up causes of action or to make
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`guesses as to whether a given claim is directed against a particular defendant. A
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`more permissive rule would “require the courts to explore exhaustively all potential
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`claims of a pro se plaintiff, and would transform the district court from its legitimate
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`advisory role to the improper role of an advocate seeking out the strongest arguments
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`and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d
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`1274, 1278 (4th Cir. 1985) (cleaned up).
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`At bottom, Lewis claims that Nike took his idea for a shoe design but did not
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`compensate him for it. The protection of ideas, in their various forms, is the province
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`of intellectual property laws. The problem for Lewis is that the none of the sub-
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`species of intellectual property law assist him. For instance, designs for clothing and
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`shoes are generally not covered by copyright law because they are functional objects.
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`See generally Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc.,
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`696 F.3d 206, 223 n.19 (2d Cir. 2012); Norris Indus., Inc. v. Int’l Tel. & Tel. Corp.,
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`696 F.2d 918, 924 (11th Cir. 1983) (“functional components of useful articles, no
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`matter how artistically designed, have generally been denied copyright protection
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`unless they are physically separable from the useful article.”) (citing SCOA
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`4
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`Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 5 of 6 - Page ID#: 28
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`Industries, Inc. v. Famolare, Inc., 192 U.S.P.Q. 216 (S.D.N.Y. 1976) (holding that
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`wavy lines on shoe soles are not copyrightable). And trademark and unfair
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`competition law is of little use to Lewis because he did not himself sell shoes using
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`his design. Cf. Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 162 (1995) (noting
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`that trademark law is designed to protect a seller of goods under a recognizable
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`trademark or brand by preventing others from using a similar mark to sell goods in
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`a manner that causes source confusion).
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`Patent law can provide protection for a useful shoe design. Payless
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`Shoesource, Inc. v. Reebok Int’l Ltd., 998 F.2d 985, 990 (Fed. Cir. 1993). But Lewis
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`does not indicate that he obtained letters patent for his shoe design, without which
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`he lacks the right to assert a patent claim. Cf. Lone Star Silicon Innovations LLC v.
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`Nanya Tech. Corp., 925 F.3d 1225, 1228 (Fed. Cir. 2019).
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`Intellectual property law also contemplates the notion of “misappropriation,”
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`likely the best fit for Lewis’s allegations. But such a claim would necessarily fail
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`for two reasons. First, Lewis’s claim is essentially one of “idea misappropriation,”
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`a common law tort. But Kentucky displaced such common law claims when it
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`enacted the Kentucky Uniform Trade Secrets Act (“KUTSA”) in 1990. See Auto
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`Channel, Inc. v. Speedvision Network, LLC, 144 F. Supp. 2d 784, 789-90 (W.D. Ky.
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`2001) (“KUTSA replaces other law relating to the misappropriation of trade secrets,
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`regardless of whether the Plaintiffs demonstrate that the information at issue
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`5
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`Case: 2:22-cv-00073-HRW Doc #: 7 Filed: 06/13/22 Page: 6 of 6 - Page ID#: 29
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`qualifies as a trade secret. ... KUTSA provides the only avenue for claims based on
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`idea misappropriation in Kentucky.”). However, Lewis’s complaint does not
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`indicate that his shoe design qualified as a trade secret under KUTSA as required to
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`state a viable claim. Second, the statute of limitations to bring a misappropriation
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`claim under KUTSA is “three (3) years after the misappropriation is discovered or
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`by the exercise of reasonable diligence should have been discovered.” Ky. Rev. Stat.
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`385.890. Lewis indicates in his complaint that he became aware of Nike’s use of his
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`design in 1987. The three-year statute of limitation therefore expired in 1990, and
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`any claim for misappropriation is therefore time-barred.
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`For each of these reasons, Lewis’s complaint must be dismissed.
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`Accordingly, it is ORDERED as follows:
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`1.
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`2.
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`Lewis’s complaint [D. E. No. 1] is DISMISSED, with prejudice.
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`This matter is STRICKEN from the active docket.
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`This the 13th day of June, 2022.
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`6
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