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Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 1 of 10 PageID #: 51
`R.ec;l
`ftLJEJ)
`IN OlEfttCS OFFICE
`U.8. l)!S1'RJCtCOURT E.O.N.Y. 'fto/17
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------- x
`KENNETH ENG,
`
`* JUN 0 9 2014 * ~
`
`BROOKLYN OFF.CE
`
`Plaintiff,
`
`MEMORANDUM & ORDER
`
`-against-
`
`14-cv-1502 (ENV) (LB)
`
`KELLY REICHARDT; MATTHEW WOLF;
`LASZLO SANTHA; DARRELL WILSON;
`DAVID IRVING; JULES MARTIN; THE
`ESTATE OF BILL REILLY; ROBERT HONOR;
`LAMAR SANDERS; PETER BARTON;
`UNKNOWN NYU PROFESSOR WHOSE FIRST
`NAME IS STEVE; HOLLINGER, (FIRST NAME :
`UNKNOWN); RAMOS, (FIRST NAME
`UNKNOWN); and NYU,
`
`Defendants.
`----------------------------------------------------------------- x
`
`VIT ALIANO, D.J.,
`
`Plaintiff Kenneth Eng, a frequent filer, commenced this action, pro se, on
`
`March 4, 2014. Eng asserts claims pursuant to 42 U.S.C. § 1981, the First
`
`Amendment, and the federal copyright statute. The Court grants plaintiff's request
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`to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons discussed
`
`below, nonetheless, the action is dismissed for failure to state a claim upon which
`
`relief may be granted, and as time-barred.
`
`Background
`
`At issue is a series of incidents that allegedly occurred between 2002 and 2005,
`
`while plaintiff was a film student at New York University ("NYU"). (Compl. ~ 3.)
`
`His complaint and the annexed exhibits demonstrate that while at NYU, Eng made
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`inflammatory, racially-motivated comments to other students in his classes, assaulted
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 2 of 10 PageID #: 52
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`at least one other student by spitting on him in an editing studio, and was generally
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`perceived by his professors and fellow students as disruptive and a threat to the NYU
`
`community. 1 (See Exhibits to complaint generally.) Eng alleges that the various
`
`NYU professors, students, and personnel that he names as defendants violated his
`
`civil rights, particularly by "censor[ing] [him] from expressing racist views."
`
`(Com pl.~ 3.) He further alleges that one of his professors violated federal copyright
`
`law by giving copies of a screenplay he wrote to other NYU officials. (Com pl.~ 3.)
`
`Standard of Review
`
`A civil action complaint must provide "a short and plain statement of the
`
`claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule
`
`does not require a plaintiff to provide "detailed factual allegations" in support of his
`
`claims in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, 550 U.S.
`
`544, 555 (2007), but it does demand "more than an unadorned, the-defendant-
`
`unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
`
`Indeed, mere conclusory allegations or "naked assertions" will not survive a motion
`
`to dismiss without at least some "further factual enhancement" providing substance
`
`to the claims alleged. Twombly, 550 U.S. at 557.
`
`When a plaintiff proceeds without legal representation, a court must regard
`
`that plaintiff's complaint in a more liberal light, affording such pleadings the
`
`strongest interpretation possible. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
`
`On August 1, 2008, Eng was sentenced by a judge of this Court to five years' probation upon
`a plea of guilty to one count charging a civil rights violation under 18 U.S.C. § 245(b )( 4)(A),
`for making a threatening phone call to the student he assaulted at NYU. (Judgment, No. 08-cr-
`66, Dkt. No. 38.)
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 3 of 10 PageID #: 53
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`Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per
`
`curiam). Even so, the Court must dismiss an in forma pauperis complaint if it "(i) is
`
`frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
`
`(iii) seeks monetary relief against a defendant who is immune from such relief." 28
`
`U.S.C. § 1915(e)(2)(B).
`
`Discussion
`
`Eng's First Amendment claim is based on his allegation that he was
`
`reprimanded by various professors and administrators for making statements in
`
`class that they viewed as offensive. For lack of anything better, the Court will
`
`construe this claim as made pursuant to 42 U.S.C. § 1983. In order to maintain a §
`
`1983 claim, a plaintiff must allege conduct that (1) was committed by a person acting
`
`under color of state law, and (2) deprived him of rights, privileges or immunities
`
`secured by the Constitution or laws of the United States. Pitchell v. Callan, 13 F.3d
`
`545, 547 (2d Cir. 1994).
`
`This claim fails for a number of reasons, the most obvious of which is that
`
`neither NYU nor its professors are state actors. It is "fundamental" that the First
`
`Amendment prohibits only government infringement on the right of free speech.
`
`Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982). It does not reach the acts of a
`
`private entity, such as NYU. See id. at 840-41 (private school is not a state actor);
`
`see, also Johnson v. City of New York, 669 F. Supp. 2d 444 (S.D.N.Y. 2009) (dismissing
`
`§ 1983 claim against NYU because it is a private entity). Because all of the
`
`defendants are private actors affiliated with NYU, this claim must be dismissed in its
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 4 of 10 PageID #: 54
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`entirety and with prejudice.
`
`Plaintiff also brings a claim under 42 U.S.C. § 1981, which is designed to
`
`prevent racial discrimination and protects the right "to make and enforce contracts,
`
`to sue, be parties, give evidence and to the full and equal benefit of all laws and
`
`proceedings for the security of persons and property as is enjoyed by white citizens ..
`
`. . " 42 U.S.C. § 1981. To plausibly plead this claim, Eng must allege facts supporting
`
`the following elements: (1) membership in a racial minority; (2) defendants' intent to
`
`discriminate on the basis of race; and (3) discrimination concerning one or more of
`
`the activities enumerated in the statute. Brown v. City of Oneonta, 221 F.3d 329, 339
`
`(2d Cir. 2000). The discrimination must have been intentional, and "a 'substantial'
`
`or 'motivating factor' for the defendant's actions." Tolbert v. Queens College, 242
`
`F.3d 58, 69 (2d Cir. 2001) (internal citations omitted) see also Anderson v. City of New
`
`York, 817 F. Supp. 2d 77, 95 (E.D.N.Y. 2011) ("[T]he plaintiff must make a fact(cid:173)
`
`specific allegation of a causal link between defendant's conduct and the plaintiff's
`
`race.") (quotations omitted).
`
`Eng does allege that he is Asian, thus satisfying the first element, but fails to
`
`allege facts supporting the other two. Read broadly and in the light most favorable
`
`to plaintiff, the complaint alleges that various NYU officials scolded him and ejected
`
`him from at least one class because he espoused "racist" views and used racial
`
`epithets in classroom discussions and written assignments, which his professors
`
`found disruptive and offensive to other students. At least two professors felt
`
`personally threatened, and one requested protection from the administration. (See
`
`

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`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 5 of 10 PageID #: 55
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`Exhibits at 2 and 12.)
`
`Even if the slights that Eng alleges he suffered could form the basis of a § 1981
`
`claim, and the Court does not find that they do, he acknowledges repeatedly that he
`
`was singled out for this treatment based on his self-described "racist" actions and
`
`statements, not because he is a member of a racial minority. The sole allegation Eng
`
`makes that even relates to his race is that "other non-Asian students created
`
`controversial films, and they were not penalized." (Compl. ~ 3.) But Eng never
`
`alleges that he was "penalized" for making a "controversial film;" rather, he alleges
`
`that he was reprimanded on numerous occasions for repeatedly making derogatory
`
`statements about other racial minorities. Indeed, the only acts of intentional racial
`
`discrimination that Eng alleges are ones he committed against others. As such, Eng
`
`wholly fails to state a cause of action under § 1981.
`
`Additionally, Eng's§ 1981 claim is time-barred. The statute of limitations for
`
`claims brought pursuant to§ 1981 is four years. Early v. Wyeth Phann., Inc., 603 F.
`
`Supp. 2d 556, 570 (S.D.N.Y. 2009) (citing Jones v. R.R. Donnelley & Sons Co., 541
`
`U.S. 369, 371 (2004)).2 The events that plaintiff complains of occurred between 2002
`
`and February 2005, and thus the limitations period expired, at the latest, in February
`
`2009, more than five years before this action was commenced. Eng appears to ask
`
`the Court to excuse the delay because he was on probation during some of the
`
`2
`
`In certain circumstances, the statute of limitations for a § 1981 claims is three years. See
`Jones, 541 U.S. at 382 (2004). The distinction is obviously irrelevant in this case.
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 6 of 10 PageID #: 56
`
`intervening time,3 and because the alleged wrongs "caused severe psychological
`
`trauma that has adversely affected [his] physical health" and his "ability to think
`
`clearly." (Com pl. ~ 3.) Because of Eng's prose status, the Court will broadly
`
`construe this as an attempt to invoke the toll for disability based on insanity under
`
`New York CPLR § 208. CPLR § 208 provides, in relevant part: "If a person entitled
`
`to commence an action is under a disability because of ... insanity at the time the
`
`cause of action accrues, ... the time within which the action must be commenced
`
`shall be extended to three years after the disability ceases .... "
`
`The insanity toll extends to those "who are unable to protect their own legal
`
`rights because of an overall inability to function in society .... [it] cannot be
`
`interpreted as providing a toll of the Statute of Limitations to an individual claiming
`
`a mere post traumatic neurosis." McCarthy v. Volkswagen of America, 55 N.Y.2d
`
`543, 450 N.Y.S.2d 457, 460, 435 N.E.2d 1072, 1074 (1982); see also Washington v. Doe,
`
`No. 08-cv-4399, 2011 WL 679919, at *2 (E.D.N.Y. Feb. 16, 2011) ("Difficulty in
`
`functioning is not sufficient to establish insanity for purposes of§ 208; rather, the
`
`plaintiff must be totally unable to function as a result of a severe and incapacitating
`
`disability.") (citation omitted). Eng's allegations of impaired "ability to think
`
`clearly" do not merit tolling under § 208. Indeed, Eng has competently filed four pro
`
`3 On June 4, 2008, Eng pleaded guilty to knowingly and willfully injuring, intimidating, and
`interfering with another person, in order to intimidate that person from participating in and
`enjoying, without discrimination on account of race and color, the benefits of educational
`programs and activities at New York University, in violation of 18 U.S.C. § 245(b)(4)(A). On
`July 28, 2008, he was sentenced to five years' probation. United States v. Eng, 08-cr-00066
`(E.D.N.Y).
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 7 of 10 PageID #: 57
`
`se complaints in this Court since August 2013; in addition to this complaint, he has
`
`filed one against his former parole officers, one against various members of the New
`
`York City Police Department for a 2011 arrest, and one asserting an unrelated
`
`copyright claim. These documents themselves demonstrate Eng's ability to function,
`
`foreclosing availability of the insanity toll. More pointedly, as noted earlier, the
`
`public records of this Court reveal that Eng, in 2008, was determined to be fully
`
`competent to enter a plea of guilty to a crime and to serve five years of probation on
`
`his own in the community. In addition, Eng does not, nor on this history could he
`
`hope to, allege that he "has been prevented in some extraordinary way from
`
`exercising his rights" such that equitable tolling might be applicable. Pearl v. City of
`
`Long Beach, 296 F.3d 76, 85 (2d Cir. 2002) (internal quotation omitted).
`
`Accordingly, in addition to failing to state a claim under § 1981, Eng's claim is
`
`untimely and is dismissed for that independent reason. 4
`
`Finally, Eng brings a copyright infringement claim, pursuant to 17 U.S.C §
`
`501, based on the allegation that one defendant-Santha, one of Eng's former
`
`professors-gave copies of Eng's screenplay to other school officials. "In a
`
`copyright infringement case, the plaintiff must show: (i) ownership of a valid
`
`copyright; and (ii) unauthorized copying of the copyrighted work." Jorgensen v.
`
`Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
`
`As a preliminary matter, Eng does not allege that he has registered his
`
`4
`
`For the same reasons, even if Eng had stated a§ 1983 claim, that claim would be time-barred
`as well.
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 8 of 10 PageID #: 58
`
`screenplay with the Copyright Office, a precondition to an infringement suit under §
`
`501. 17 U.S.C. § 4ll(a); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010);
`
`Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., 09-CV-2669, 2012
`
`WL 1021535, *5 (S.D.N.Y. Mar. 26, 2012). Even if Eng had registered his
`
`screenplay, however, his allegations would be insufficient to state a claim for
`
`copyright infringement.
`
`The Copyright Act grants certain exclusive rights to the owner of a
`
`copyright, including the right to make and distribute copies of the copyrighted work.
`
`See 17 U.S.C. § 106 (1994). Notwithstanding, under the de minimis doctrine, "where
`
`unauthorized copying is sufficiently trivial, 'the law will not impose legal
`
`consequences.'" On Davis v. The Gap, Inc., 246 F.3d 152, 172-73 (2d Cir. 2001)
`
`(quoting Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997).
`
`Examples include a newspaper cartoon copied and put up on a refrigerator, or
`
`waiters at a restaurant singing "Happy Birthday" at a patron's table. While both
`
`constitute unauthorized use of a copyrighted work, they are not, as a matter of law,
`
`copyright infringement. See On Davis, 246 F.3d at 172 ("When we do such things, it
`
`is not that we are breaking the law but unlikely to be sued given the high cost of
`
`litigation. Because of the de minimis doctrine, in trivial instances of copying, we are
`
`in fact not breaking the law.").
`
`Accepting his allegations as true, and reading them in the light most favorable
`
`to him, Eng says he voluntarily gave Santha, in his role as professor, a copy of his
`
`screenplay, and Santha then shared copies of the screenplay with one or more
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 9 of 10 PageID #: 59
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`educational supervisors. Eng does not allege that anything further was done with the
`
`screenplay-the intramural distribution to NYU educators of his NYU student work
`
`is the focus of his grievance. While it may have been unauthorized, this is a de
`
`minimis use that does not constitute copyright infringement. See Knickerbocker Toy
`
`Co. v. Azrak-Hamway Int'/, Inc., 668 F.2d 699, 703 (2d Cir. 1982) (denying relief
`
`under de minimis doctrine where defendant had made a copy of plaintiff's work, but
`
`copy was never used).
`
`Additionally, like his other claims, Eng's copyright claim is time-barred. The
`
`statute of limitations for a copyright infringement claim is three years. See 17 U.S.C.
`
`§ 507(b). Plaintiff alleges that he was aware of the unauthorized use of his
`
`screenplay, and demanded its return, in February 2003, making his claim more than
`
`eight years late.
`
`It is rare, or course, that initial pleading dismissal will close the courthouse
`
`door. Ordinarily, the Court would allow a prose plaintiff an opportunity to amend
`
`his complaint. See Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000). It need not,
`
`and should not, afford that opportunity here, however, where it is clear from
`
`plaintiff's very submissions that there is absolutely no possibility of pleading a
`
`plausible claim against these defendants in an amended complaint. Therefore, any
`
`attempt to amend the complaint would be futile. Cuoco v. Moritsugu, 222 F.3d 99,
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`112 (2d Cir. 2000). Leave to amend is denied.
`
`Conclusion
`
`For the foregoing reasons, the complaint in its entirety is dismissed with
`
`

`
`Case 1:14-cv-01502-ENV-LB Document 4 Filed 06/09/14 Page 10 of 10 PageID #: 60
`I a
`
`prejudice. 28 U.S.C. § 1915(e)(2)(B).
`
`The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
`
`this order would not be taken in good faith and therefore in forma pauperis status is
`
`denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45
`
`(1962).
`
`The Clerk of Court is directed to enter judgment for defendants and to close
`
`this case.
`
`SO ORDERED.
`
`Dated: Brooklyn, New York
`June 9, 2014
`
`ERIC N. VITAIJANO
`United States District Judge
`
`/S/ Judge Eric N. Vitaliano

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