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discussing passage of the Act
Summary of this case from Jacobs v. Memphis Convention Visitors BureauOpinion
1:04CV1203.
August 5, 2005
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff's motion to amend the complaint [docket no. 11] and on Defendants' motion to dismiss Plaintiff's amended complaint [docket no. 12]. Plaintiff has not responded to Defendants' motion to dismiss, and the time for doing so has expired. Furthermore, because the parties have not consented to the jurisdiction of the magistrate judge Defendants' motion to dismiss must be disposed of by way of recommendation. For the reasons discussed herein, Plaintiff's motion to amend is granted, and it will be recommended that the court grant Defendants' motion to dismiss in part and deny it in part.
PROCEDURAL HISTORY
Plaintiff filed his complaint on December 22, 2004, against Defendant North Carolina Agricultural Technical State University ("NC AT" or "the university"), alleging claims for federal copyright infringement and for a violation of North Carolina's unfair and deceptive trade practices statute, N.C. GEN. STAT. § 75-1.1. Defendant NC AT did not file an answer and instead filed a motion to dismiss on February 14, 2005. On April 12, 2005, Plaintiff filed a motion to amend the complaint. The proposed amended complaint adds three individuals as Defendants, drops the claim brought under North Carolina's unfair and deceptive trade practices statute, and adds the following two claims: a claim for a "violation of 42 U.S.C. § 1983" and a claim for an unconstitutional taking without just compensation in violation of the Fifth Amendment. On May 10, 2005, before Plaintiff's motion to amend his complaint had been referred to the undersigned, Defendant NC AT filed a motion to dismiss the proposed amended complaint. Two days later on May 12, 2005, without knowledge of Plaintiff's pending motion to amend or Defendant NC AT's pending motion to dismiss the proposed amended complaint, the undersigned issued a Recommendation on the motion to dismiss Plaintiff's original complaint, and Defendant NC AT has filed an objection to that Recommendation. For the following reasons, the undersigned withdraws the earlier-filed Recommendation and submits this Recommendation and Order in its place.
Under FED. R. CIV. P. 15(a), "a party may, as a matter of right, amend its complaint once before the filing of a `responsive pleading' or the entry of final judgment following dismissal of its action." Furthermore, it is black letter law that when the parties amend the pleadings, the amended pleadings supersede the original pleadings. See, e.g., Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amended complaint supersedes original). In such circumstances, the defendant's motion to dismiss is directed at a pleading that is no longer operative, and the motion is therefore moot. See Turner v. Kight, 192 F. Supp. 2d 391, 397 (D. Md. 2002) (denying as moot the defendants' motions to dismiss the original complaint on the basis that the amended complaint superseded the original complaint). Here, since no responsive pleading had been served when Plaintiff filed his motion to amend his complaint on April 12, 2005, Plaintiff had an automatic right to amend his complaint at that time without first seeking leave from the court. Had Plaintiff simply filed his amended complaint at that time it would have superseded the original complaint and would have rendered moot the first motion to dismiss filed on February 14, 2005. Since Plaintiff had an automatic right to amend his complaint when he filed his motion to amend on April 12, 2005, the undersigned hereby deems the amended complaint to be filed and withdraws the earlier Recommendation filed on May 12, 2005. In its place, the undersigned submits this Recommendation and Order addressing the motion to dismiss Plaintiff's amended complaint. For the reasons stated herein, it will be recommended that the court grant the motion to dismiss in part and deny it in part.
FACTS
On or about February 1, 1990, Plaintiff took a photograph titled "The Greensboro Four." The "Greensboro Four" photograph is of Joseph McNeill, Ezell Blair, Jr. (aka Jibreel Khazan), Franklin E. McCain, and David L. Richmond, sitting at a lunch counter in Greensboro, North Carolina, on the thirtieth anniversary of their infamous sit-in at that same lunch counter. Plaintiff has now brought a copyright infringement action against NC AT, which is a constituent institution of the University of North Carolina, and several of its administrators, alleging among other things that Defendants have violated the federal Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq., by reproducing the photograph without Plaintiff's permission and including it in certain university publications, particularly in football programs offered and sold at the university's football games. Plaintiff also alleges claims against Defendants for a "violation of 42 U.S.C. § 1983" and an unconstitutional taking without just compensation under the Fifth Amendment. Defendants have moved to dismiss Plaintiff's claims based on Eleventh Amendment immunity and for failure to state a claim upon which relief may be granted.
Plaintiff has named the following individuals as Defendants: (1) Dr. James C. Renick, Chancellor of the University; (2) David Hoard, identified "upon information and belief" as Vice Chancellor for Development and University Relations; and (3) Mable Scott, identified "upon information and belief" as an Associate Chancellor for Development and University Relations. Amended Compl. ¶¶ 3-5.
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim upon which relief may be granted made pursuant to Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion to dismiss, the court accepts as true all well-pleaded allegations and views the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The function of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint and not the facts that support it. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). Similarly, when evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that the complaint fails to state facts upon which jurisdiction can be founded, "all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
DISCUSSION
Here, the amended complaint purports to bring the following three causes of action: Copyright Infringement (First Cause of Action); a "violation of 42 U.S.C. § 1983" (Second Cause of Action); and a "Taking Without Compensation" in violation of the Fifth Amendment (Third Cause of Action). Defendants have moved to dismiss all three claims, and the court addresses each in turn. Plaintiff's First Cause of Action — Copyright Infringement
Defendants NC AT and the three individual Defendants, proceeding in their official capacities, argue that Eleventh Amendment immunity bars Plaintiff from bringing a copyright infringement claim against them in this court. I agree. Defendant NC AT is a constituent institution of the University of North Carolina ("UNC") and, as such, it is an agency of the State of North Carolina entitled to Eleventh Amendment immunity. See N.C. GEN. STAT. § 116-4. Thus, NC AT can only be sued in this court if (1) it has expressly waived its immunity, see Huang v. Board of Governors of Univ. of N.C., 902 F.2d 1134 (4th Cir. 1990); (2) it removed this action from a state court, having already consented to suit on Plaintiff's claims in the state court, see Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002); Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005); or (3) Congress has clearly and properly exercised its authority under the Fourteenth Amendment to abrogate North Carolina's Eleventh Amendment immunity, see Seminole Tribe v. Florida, 517 U.S. 44 (1996). Here, Plaintiff has not shown that Defendant NC AT has expressly waived its immunity in this court from liability for alleged violations of the Copyright Act. Furthermore, Defendant NC AT did not remove this case from a state court with jurisdiction over Plaintiff's claims. Therefore, Plaintiff can pursue his claims under the Copyright Act only if Congress has properly abrogated NC AT's Eleventh Amendment immunity from liability for violations of the Copyright Act. For the reasons stated herein, the court finds that Congress has not properly abrogated NC AT's Eleventh Amendment immunity from liability for violations of the Copyright Act.
The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any foreign state." U.S. CONST. amend. XI. Eleventh Amendment immunity extends to state agencies and state officers acting in their official capacities. Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995). Thus, the court's discussion of NC AT's Eleventh Amendment immunity also applies to the claims against the individual Defendants in their official capacities.
The Copyright Remedy Clarification Act of 1990
In 1990, Congress passed the Copyright Remedy Clarification Act ("CRCA"), Pub.L. No. 101-553, 104 Stat. 2749 (codified at 17 U.S.C. §§ 501(a), 511), as an amendment to the federal Copyright Act. Passage of the CRCA was part of an effort by Congress in the early 1990s to remedy imbalances between private and state institutions caused by Eleventh Amendment sovereign immunity in the areas of trademark, copyright, and patent law. In addition to passing the CRCA, Congress also passed the Patent and Plant Variety Protection Remedy Clarification Act ("Patent Remedy Act") of 1992, Pub.L. No. 102-560, 106 Stat. 4230 (codified at 35 U.S.C. §§ 271(h), 296(a)), and the Trademark Remedy Clarification Act of 1992 ("TRCA"), Pub.L. No. 102-542, 106 Stat. 3567 (codified at 15 U.S.C. §§ 1051, 1114, 1122). All three statutes expressly purport to waive the States' Eleventh Amendment immunity from liability for violations of federal trademark, copyright, and patent law. For instance, the CRCA provides that "anyone" includes "any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity" and that "[a]ny State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity." 17 U.S.C. § 501(a). The CRCA further provides:
Thus, Congress intended to abrogate the States' Eleventh Amendment immunity with "unmistakable clarity." See Seminole Tribe v. Florida, 517 U.S. 44, 56-57 (1996) (stating that Congress's intent to abrogate Eleventh Amendment immunity must be "unmistakably clear").
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by [the Copyright Act].17 U.S.C. § 511(a).
The Supreme Court has not yet ruled whether the CRCA is a valid exercise of Congress's power with regard to federal copyright law. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (" Florida Prepaid"), 527 U.S. 627 (1999), however, the Court held that the Patent Remedy Act was not an appropriate exercise of Congress's remedial powers under § 5 of the Fourteenth Amendment and, therefore, the Patent Remedy Act did not waive the States' Eleventh Amendment immunity from liability for patent infringement. The Court found that the same was true of the TRCA with regard to federal trademark law under the Lanham Act in its companion case of College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (" College Savings Bank"), 527 U.S. 666 (1999). In determining that the Patent Remedy Act was unconstitutional, the Court in Florida Prepaid first recognized that Congress may abrogate state sovereignty through "appropriate" legislation pursuant to § 5 of the Fourteenth Amendment. 527 U.S. at 637. Nevertheless, the legislation must be "appropriate" as that term has been construed in City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court held that the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq., exceeded Congress's authority under § 5 of the Fourteenth Amendment insofar as RFRA was made applicable to the States. See id. at 637-38 (discussing City of Boerne). In holding as much, the Court in City of Boerne stated that for Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct. The Court in Florida Prepaid held that under City of Boerne the Patent Remedy Act could not be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause. Id. at 630. First, "[i]n enacting the Patent Remedy Act . . . Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Id. at 640. Second, Congress had "barely considered the availability of state remedies for patent infringement and hence whether the States' conduct might have amounted to a constitutional violation under the Fourteenth Amendment." Id. at 643. The Court in Florida Prepaid observed:
The Fourteenth Amendment provides in relevant part:
"Section 1. . . . No State shall . . . deprive any person of life, liberty, or property, without due process of law.
The primary point made by these witnesses, however, was not that state remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies, and might undermine the uniformity of patent law. . . . Congress itself said nothing about the existence or adequacy of state remedies in the statute or in the Senate Report, and made only a few fleeting references to state remedies in the House Report, essentially repeating the testimony of the witnesses.Id. at 644 (citations and footnote omitted). The Court opined that Congress's concern for convenient and uniform remedies for violations of patent law was a constitutionally insufficient reason for exercising its Fourteenth Amendment enforcement powers. See id. at 645. Third, the Court found that, although patents have long been recognized as property and therefore subject to protection under the Due Process Clause of the Fourteenth Amendment, "the legislative record still provides little support for the proposition that Congress sought to remedy a Fourteenth Amendment violation in enacting the Patent Remedy Act." Id. at 642. In reaching that decision, the Court emphasized that it had long held that the Due Process Clause does not protect against deprivations of property but, rather, deprivations of property without due process of law:
Thus, under the plain terms of the Clause and the clear import of our precedent, a State's infringement of a patent, though interfering with a patent owner's right to exclude others, does not by itself violate the Constitution. Instead, only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent could a deprivation of property without due process result.Id. at 643. The Court reviewed Congress's action in light of the constitutional standard:
The legislative record thus suggests that the Patent Remedy Act does not respond to a history of "widespread and persisting deprivation of constitutional rights" of the sort Congress has faced in enacting proper prophylactic § 5 legislation. Instead, Congress appears to have enacted this legislation in response to a handful of instances of state patent infringement that do not necessarily violate the Constitution.Id. at 645-46. Finally, the Court noted that Congress had done nothing to limit either the coverage of the Patent Remedy Act, the states' liability, the remedies available against states, or the duration of the potential liability. "Instead, Congress made all States immediately amenable to suit in federal court for all kinds of possible patent infringement and for an indefinite duration." Id. at 647. Therefore, the Court held that Congress had not properly exercised its Fourteenth Amendment enforcement authority to abrogate the States' Eleventh Amendment immunity when it enacted the Patent Remedy Act, and the plaintiff could not maintain its action for infringement against the State of Florida in federal court. The Court emphasized:
The historical record and the scope of coverage therefore make it clear that the Patent Remedy Act cannot be sustained under § 5 of the Fourteenth Amendment. The examples of States avoiding liability for patent infringement by pleading sovereign immunity in a federal-court patent action are scarce enough, but any plausible argument that such action on the part of the State deprived patentees of property and left them without a remedy under state law is scarcer still. The statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe.Id. at 647-48. Thus, the Supreme Court concluded that passage of the Patent Remedy Act was not a proper exercise of Congress's Fourteenth Amendment powers.
Applying the Analysis in Florida Prepaid to the CRCA
As stated previously, the Supreme Court has not yet addressed whether passage of the CRCA was a proper exercise of Congress's Fourteenth Amendment powers. The Fifth Circuit appears to be the only circuit that has addressed this issue, and it has concluded that, under Florida Prepaid, passage of the CRCA was not a proper exercise of Congress's Fourteenth Amendment powers. In Chavez v. Arte Publico Press, 204 F.3d 601, 608 (5th Cir. 2000), the Fifth Circuit considered whether the plaintiff was barred by the Eleventh Amendment from maintaining a claim for money damages based on infringement of her copyright against a component of the University of Houston and an agency of the State of Texas. Id. at 603. The Chavez court applied the same analysis as the Supreme Court has applied in Florida Prepaid — that is, the court asked whether passage of the CRCA was "appropriate" as that term had been construed in City of Boerne. See id. at 605. First, the Chavez court reviewed the Congressional record to determine whether, when passing the CRCA, Congress acted on evidence of a pattern of unconstitutional infringement of copyrights by the States. The Chavez court found no such evidence:
At the request of Congress, the Copyright Office reported on the relation between the states' copyright liability and the Eleventh Amendment; in that report, no more than seven incidents of State copyright infringement enabled by the Eleventh Amendment were documented. Register of Copyrights, Copyright Liability of States and the Eleventh Amendment 5-9 (1988) [hereinafter Copyright Office Report]. Nor did the Senate hear evidence of a pattern of unremedied copyright infringement by the States. Rather than expose a current epidemic of unconstitutional deprivations, the testimony before Congress worried principally about the potential for future abuse, see House Hearings, at 7 (statement of Ralph Oman), and the concerns of copyright owners about that potential, see Copyright Office Report, at 5-17. Compare Florida Prepaid, 119 S. Ct. at 2207 ("At most, Congress heard testimony that patent infringement by States might increase in the future.").Id. at 606 (emphasis in original). Next, the Chavez court considered whether Congress had studied the existence and adequacy of state remedies for injured copyright owners in those cases where a state infringes their copyrights. The court observed that "[t]he legislative histories of the [Patent Remedy Act] and CRCA are again parallel. In each case, Congress barely considered the availability of state remedies for infringement." Id. Continuing its analysis of the legislative history, the court noted:
As if to emphasize its lack of interest in state remedies, Congress rejected the idea of granting state courts concurrent jurisdiction over copyright cases, an alternative solution that would have avoided any Eleventh Amendment problems. Congress rejected this solution not because it was an inadequate remedy, but because Congress believed concurrent jurisdiction would undermine the uniformity of copyright law.Id. at 607. The Chavez court then reiterated the Supreme Court's observation in Florida Prepaid that uniformity was an inadequate justification for the exercise of Fourteenth Amendment enforcement powers. Id.
Finally, following the Supreme Court's analyses in Florida Prepaid and City of Boerne, the Chavez court considered whether there is a congruence and proportionality between the injury to be prevented or remedied and the means provided in the CRCA to achieve those ends. Id. Once again, the court found that the Congressional record on the CRCA was indistinguishable from that of the Patent Remedy Act. The court found that, as with the Patent Remedy Act, liability under the CRCA does not depend on proof of intentional infringement. Id. Thus, liability under the CRCA is broader than the rights secured under the Due Process Clause, which only protects against intentional, not negligent, deprivations of property. The court further observed that the Congressional record indicated that most copyright infringement by states is unintentional. Id. In light of that finding, the Chavez court stated that the CRCA failed to demonstrate the congruence and proportionality:
In enacting the CRCA, however, Congress did nothing "to confine the reach of the Act by limiting the remedy to certain types of infringement, . . . or providing for suits only against States with questionable remedies or a high incidence of infringement." Florida Prepaid, 119 S. Ct. at 2210. Its "indiscriminate scope" cannot be reconciled with the principle that legislation pursuant to the due process clause of the Fourteenth Amendment must be proportionate to legitimate section 5 ends. See id.Id. The court held, therefore, that the CRCA was an improper exercise of Congressional legislative powers and the Eleventh Amendment barred Plaintiff from pursuing her claims for money damages in federal court. As the Chavez court stated:
Since the record does not indicate that Congress was responding to the kind of massive constitutional violations that have prompted proper remedial legislation, that it considered the adequacy of state remedies that might have provided the required due process of law, or that it sought to limit the coverage to arguably constitutional violations, we conclude that the CRCA is, like the PRCA, an improper exercise of Congressional legislative power. The Court said in Florida Prepaid that PRCA's "apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe." The same can be said about the CRCA, which is doomed in the wake of Florida Prepaid and Kimel.
Id. at. 607-08 (citation omitted).
In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Supreme Court applied the same "congruence and proportionality" test that it had relied on in Florida Prepaid to conclude that the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., was not appropriate legislation under § 5 of the Fourteenth Amendment.
In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Supreme Court applied the same "congruence and proportionality" test that it had relied on in Florida Prepaid to conclude that the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., was not appropriate legislation under § 5 of the Fourteenth Amendment.
This court agrees with the reasoning of the Chavez court and holds that the CRCA is not an appropriate exercise of Congress's enforcement authority under § 5 of the Fourteenth Amendment. Thus, the CRCA does not abrogate Defendants' Eleventh Amendment immunity from money damages for an alleged violation of Plaintiff's copyright. Thus, Plaintiff's claim for money damages against Defendant NC AT and the individual Defendants in their official capacities based on alleged copyright infringement should be dismissed. The court further notes, however, that here Plaintiff has also sued for prospective injunctive relief based on Defendants' alleged copyright infringement. In addition to seeking money damages, Plaintiff requests that Defendants be permanently enjoined from infringing Plaintiff's copyright in the "Greensboro Four" photograph and from publishing, selling, marketing, or otherwise disposing of any copies of the photograph.
In his prayer for relief, Plaintiff also requests that Defendants be enjoined "during the pendency of this action" from infringing Plaintiff's copyright and from "publishing, selling, marketing or otherwise disposing of any copies of the photograph" and that Defendants be required to "deliver to be impounded during the pendency of this action all copies of the photograph or publications containing the photograph in its possession or under its control, and to deliver up for destruction all infringing copies and all plates, molds and other matter for making such infringing copies." See Amended Compl. Prayer for Relief ¶¶ 1, 3. To the extent that Plaintiff seeks a preliminary injunction, he must first file a motion to that effect, and the parties will be required to submit briefs on the motion. See Local Rule 65.1(a) (stating that if a ruling on a preliminary injunction is sought before trial the party must separately file a motion and brief); FED. R. CIV. P. 65.
As for Plaintiff's request for prospective relief in the form of a permanent injunction, the Supreme Court has long permitted suits for prospective injunctive relief against state officials as an exception to Eleventh Amendment immunity under the doctrine of Ex Parte Young. See Ex Parte Young, 209 U.S. 123 (1908). Thus, to the extent that Plaintiff seeks prospective injunctive relief against the individual Defendants as state officials, the motion to dismiss should be denied. See Salerno v. City Univ. of New York, 191 F. Supp. 2d 352, 357 (S.D.N.Y. 2001); Rainey v. Wayne State Univ., 26 F. Supp. 2d 973, 976 (E.D. Mich. 1998). Defendants argue, however, that in order to obtain prospective injunctive relief a plaintiff must allege an ongoing, rather than a prior, violation of rights under federal law and that Plaintiff here does not allege any ongoing violation of his rights under federal law. As an example, Defendants note that Paragraph 14 of the amended complaint states:
Plaintiff's photograph has appeared in, upon information and belief, programs offered for sale by the University at University's football games both in Greensboro and in other locations. Upon information and belief, Defendants provided the photograph to other schools for inclusion in those schools' football program for days when the University's football team was playing in that other location.
Defendants argue, therefore, the complaint on its face does not allege an ongoing violation of Plaintiff's copyright. This court does not agree. In addition to the allegations in Paragraph 14, the amended complaint clearly also alleges that "[o]n numerous occasions after 2000 and, upon information and belief, to date, Defendants have infringed . . . the above-mentioned copyright by reproducing and copying the photograph in print publications sponsored by the University, including but not limited to, football programs"; that "[t]he unauthorized and infringing use by Defendants will, unless enjoined, cause irreparable harm, damage and injury to Plaintiff"; that "Defendants have unlawfully and wrongfully derived, and will continue to derive, income and profits from the infringing acts"; and that Plaintiff "has notified Defendant of the acts which constitute copyright infringement, and Defendants have continued to infringe the copyright." Amended Compl. ¶¶ 25, 26, 27, 29 (emphases added). Thus, the court finds that Plaintiff sufficiently alleges an ongoing violation of federal copyright law by Defendants, and the Ex Parte Young doctrine therefore applies to his copyright infringement claim seeking prospective injunctive relief from Defendants. Plaintiff's Second Cause of Action: Violation of 42 U.S.C. § 1983
The motion to dismiss by the individual Defendants Renick, Hoard, and Scott is made in their official capacities only. From the face of the complaint it is unclear whether Plaintiff has also sued these Defendants in their individual capacities. The Eleventh Amendment presents no bar to suit against a defendant in his individual capacity for monetary damages. Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974). The court makes no finding at this time as to any possible claim for copyright infringement against these Defendants in their individual capacities.
Plaintiff's Second Cause of Action is titled a "Violation of 42 U.S.C. § 1983." In support of this claim, Plaintiff generally alleges that "[t]he acts of the individual Defendants caused Plaintiff the deprivation of rights secured by the laws of the United States in that photograph and the copyright thereof." Amended Compl. ¶ 33. It is well settled, however, that section 1983 itself creates no rights; rather, it provides a method for vindicating federal rights elsewhere conferred. Thus, to state a claim under § 1983, a plaintiff must allege the violation of a right preserved by another federal law or by the Constitution. Kendall v. City of Chesapeake, 174 F.3d 437, 440 (4th Cir. 1999). As the Supreme Court has observed, "one cannot go into court and claim a `violation of § 1983-for § 1983 by itself does not protect anyone against anything." Gonzaga University v. Doe, 536 U.S. 273, 285 (2002) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)). Thus, to the extent that the complaint purports to bring a claim for a "violation of section 1983" alone, that claim should be dismissed.
Plaintiff's Third Cause of Action: A Taking Without Just Compensation in Violation of the Fifth Amendment
Under the Third Cause of Action in the amended complaint, Plaintiff alleges that the copyright infringement by Defendants constitutes a taking without just compensation in violation of the Fifth Amendment. In support of this claim, Plaintiff specifically alleges that the university acquired the photograph for public use and failed to pay compensation to Plaintiff and that the university's actions in using the photograph without authority or license amounted to a taking of property in violation of the Fifth Amendment's Takings Clause. The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, see Chicago, B. Q.R. Co. v. Chicago, 166 U.S. 226 (1897), provides that private property shall not "be taken for public use, without just compensation." U.S. CONST. amend. V. Defendants argue that Plaintiff fails to state a claim for a Fifth Amendment violation because an action through 42 U.S.C. § 1983 is the exclusive federal remedy for vindicating rights provided by the Fifth Amendment's Takings Clause, and Plaintiff has improperly attempted to sue directly under the Fifth Amendment. As the court has already noted, however, Plaintiff invoked § 1983 in his Second Cause of Action in the amended complaint, and Plaintiff's Fifth Amendment allegations specifically incorporate the allegations referencing § 1983. The court will, therefore, assume that Plaintiff has properly pled a § 1983 action. Dismissal is, therefore, not appropriate on this ground. The Fifth Amendment takings claim is subject to dismissal, however, for another reason — the Eleventh Amendment bars Plaintiff from bringing a Fifth Amendment takings claim in this court. See, e.g., DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004); John G. Marie Stella Kenedy Mem'l Found. v. Mauro, 21 F.3d 667, 674 (5th Cir. 1994) (stating that the Eleventh Amendment bars a Fifth Amendment takings claim brought in federal district court); Robinson v. Georgia Dep't of Transp., 966 F.2d 637, 640 (11th Cir. 1992) (same); Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 618-20 (9th Cir. 1992) (same); Citadel Corp. v. Puerto Rico Highway Auth., 695 F.2d 31, 33 n. 4 (1st Cir. 1982) (same); Garrett v. Illinois, 612 F.2d 1038, 1040-41 (7th Cir. 1980) (same). Furthermore, the Supreme Court has explicitly stated that just compensation "is, like ordinary money damages, a compensatory remedy . . . [and therefore] legal relief," and moreover, that a federal-court suit alleging a taking seeks "not just compensation per se but rather damages for the unconstitutional denial of such compensation," City of Monterey v. Del Monte Dunes, 526 U.S. 687, 710-11 (1999). Thus, the Ex Parte Young exception is inapplicable in a Fifth Amendment takings claim. Because Eleventh Amendment immunity bars Plaintiff's taking claim in this court and because the Ex Parte Young exception does not apply, Plaintiff's Fifth Amendment takings claim should be dismissed.
The court notes that Defendants' brief in support of the motion to dismiss states that Plaintiff has also brought claims alleging violations of the First and Fourteenth Amendments, and Defendants move to dismiss these claims as well. See Defs.' Br. p. 7. The court can discern no such claims in Plaintiff's amended complaint except to recognize that, in relation to Plaintiff's takings claim, the rights of a property owner are rooted in the Fifth Amendment guarantee against the taking of property without just compensation and are incorporated in the Fourteenth Amendment guarantee against the deprivation of property without due process of law.
Furthermore, whether a copyright is even a property interest protected by the Fifth Amendment's Takings Clause appears to be an open question not yet definitively answered by the Supreme Court.
CONCLUSION
In sum, for the reasons stated herein it is ORDERED that Plaintiff's amended complaint is deemed to be filed as of this decision, and Plaintiff's motion to amend (docket no. 11) the complaint is GRANTED. It is further ORDERED that the recommendation filed by the undersigned on May 12, 2005, is hereby withdrawn. Finally, it is RECOMMENDED that the court GRANT IN PART Defendants' motion to dismiss. That is, Defendants' motion to dismiss (docket no. 12) should be GRANTED to the extent that the court should dismiss Plaintiff's claims for money damages against Defendant NC AT and the individual Defendants in their official capacities for alleged copyright infringement. To the extent that Plaintiff seeks prospective, injunctive relief against Defendants Renick, Hoard, and Scott for alleged copyright infringement, however, the motion to dismiss should be DENIED. Finally, the motion to dismiss Plaintiff's Fifth Amendment takings claim should be GRANTED.