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Curtis J. Neeley v. FCC, Civil No. 12-5208 (W.D. Ark)

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Released: February 19, 2013
Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 1 of 13 PageID #: 497

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

CURTIS J. NEELEY, JR.

PLAINTIFF

v.

Civil No. 12-5208

FEDERAL COMMUNICATIONS COMMISSION;
MICROSOFT CORPORATION; and
GOOGLE INC.

DEFENDANTS

O R D E R

Now on this 15th day of February 2013, come on for
consideration the following motions:
*

Microsoft Corporation's Motion to Dismiss for Failure to
State a Claim

(document #14);
*

Google Inc.'s Motion to Dismiss

(document #16);
*

Federal Communications Commission's Motion to Dismiss
Amended Complaint

(document #54); and
*

Motion for Sanctions Under Rule 11

(document #36).
The Court, being well and sufficiently advised, finds and orders
as follows:
1.
Plaintiff Curtis Neeley, Jr., acting pro se, filed this
action on September 17, 2012, alleging privacy violations by the
Federal Communications Commission (FCC), Microsoft Corporation
(Microsoft), and Google Inc. (Google), based on the return of nude
images attributed to Mr. Neeley in various internet searches. Mr.
Neeley has previously filed two similar lawsuits involving the
same parties. See Neeley v. NameMedia, Inc., et al., Case No.
5:09-cv-5151 (Neeley I); Neeley v. NameMedia, Inc., et al., Case

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 2 of 13 PageID #: 498
No. 5:12-cv-5074 (Neeley II).
2.
The Complaint was amended as a matter of course on
October 2, 2012. Thereafter, each defendant filed separate motions
seeking to dismiss the Amended Complaint. Mr. Neeley then filed
his Second Amended Complaint (document #53-3), which does not
significantly differ from the Amended Complaint. The Court will
consider the arguments made in the motions to dismiss as
applicable to the Second Amended Complaint.

MICROSOFT'S MOTION TO DISMISS

3.
In the Second Amended Complaint, Mr. Neeley contends
that Microsoft recklessly created "inappropriate text-image
associations" between his name and "indecent images" and claims
that Microsoft refuses to remove the associations without court
orders. He argues that this creates the false appearance that Mr.
Neeley desires "anonymous minors" to view the indecent material.
He also contends that it violates his "personal common-law right
to not be associated with art."
Mr. Neeley seeks an injunction requiring Microsoft to
disassociate his name with indecent images in text searches. He
further seeks compensatory and punitive damages.
4.
Microsoft filed its Motion to Dismiss on November 29,
2012, arguing that Mr. Neeley's complaint, even if presumed true,
fails to state a claim against Microsoft upon which relief can be
granted.
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5.
Pursuant to Fed. R. Civ. P. 8(a), a complaint must
contain, among other things, a short and plain statement of the
claim showing that the complainant is entitled to relief. To
survive a motion to dismiss for failure to state a claim, a
complaint must contain sufficient facts stating a claim that is
plausible on its face and will allow a court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
For purposes of deciding a motion to dismiss, the Court takes
the alleged facts as true, construing all reasonable inferences
arising from the complaint in the light most favorable to the
plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set
of facts that would entitle him to relief. Levy v. Ohl, 477 F.3d
988, 991 (8th Cir. 2007).
6.
Mr. Neeley's allegations against Microsoft consist of
four short paragraphs located on pages 8 and 9 of his nineteen-
page Second Amended Complaint. From these paragraphs and the
incorporated exhibits, the Court can discern
*
that Microsoft operates a search engine called Bing.com;
*
that internet users can locate web sites containing nude
images by inputting the name "curtis neeley;"
*
that
Mr.
Neeley
has
requested
that
Microsoft
-3-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 4 of 13 PageID #: 500
disassociate his name with the nude images; and
*
that Microsoft is unable or unwilling to do so without
a court order.
7.
Although Mr. Neeley states that Microsoft has created
the false appearance that he desires minors to view inappropriate
material, violating what he calls his "common-law right to not be
associated with art," he fails to articulate what legal theory on
which he seeks recovery. To the extent he attempts to allege the
tort of false-light invasion of privacy, he must demonstrate
*
that Microsoft published something that placed Mr.
Neeley in a false light;
*
that the publicity would be highly offensive to a
reasonable person;
*
that Microsoft had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false
light in which Mr. Neeley would be placed; and
*
that Microsoft acted with malice.
Dodrill v. Ark. Democrat Co., 265 Ark. 628, 638, 590 S.W.2d 840,
845 (1979).
8.
Mr. Neeley has not alleged any falsity in the text-image
associations, nor has he alleged that Microsoft acted with malice.
Thus, he has failed to state a claim of false-light invasion of
privacy against Microsoft.
9.
If Mr. Neeley seeks relief on any other theory, it is
-4-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 5 of 13 PageID #: 501
not readily apparent on the face of the Second Amended Complaint.
In the previous lawsuit Mr. Neeley filed against Microsoft (Neeley
II), the Court construed the complaint against Microsoft as a
defamation claim but dismissed the complaint for failure to state
sufficient facts. As Mr. Neeley has included no new facts or
allegations against Microsoft in the current litigation, to the
extent Mr. Neeley seeks to allege defamation, he likewise fails.
10.
Accordingly, the Court finds that Mr. Neeley has failed
to state a claim against Microsoft upon which relief can be
granted, and Microsoft's Motion to Dismiss will be granted.

GOOGLE'S MOTION TO DISMISS

11.
Mr. Neeley makes similar claims against Google in the
Second Amended Complaint, asserting that Google associates the
name "curtis neeley" with the presentation of indecent photographs
placed by other people across the world, and that it provides
insufficient safeguards to prevent certain internet users from
viewing these images. Mr. Neeley contends that this violates his
"common law copy right and common law privacy."
Mr. Neeley goes on to claim false light invasion of privacy
based on Google's attributing to him -- accurately but against his
wishes -- three "figurenude" photographs scanned from a book in a
New York library.
12.
Google filed its Motion to Dismiss on November 29, 2012,
arguing that the complaint should be dismissed based on res
-5-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 6 of 13 PageID #: 502
judicata and failure to state a claim upon which relief can be
granted.
Google further argues that the complaint is frivolous and
vexatious, in violation of Fed. R. Civ. P. 11. However, those
arguments are more fully addressed in Google's Motion for
Sanctions and will be discussed separately herein.
13.
Under the doctrine of res judicata, a judgment on the
merits in a prior suit bars a second suit involving the same
parties or their privies based on the "same nucleus of operative
facts" as the prior claim." Daley v. Marriott Int'l, Inc., 415
F.3d 889, 895–96 (8th Cir. 2005) (quoting Costner v. URS
Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998)). The Eighth
Circuit uses a three-part inquiry to determine whether res
judicata applies:
*
whether the prior judgment was rendered by a court of
competent jurisdiction;
*
whether the prior judgment was a final judgment on the
merits; and
*
whether the same cause of action and the same parties or
their privies were involved in both cases.
14.
Mr. Neeley's claims against Google in the present case
stem from the same underlying facts and occurrences that were the
bases for the claims made in Neeley I and Neeley II.
(a)
In Neeley I -- which was resolved in Google's favor on
-6-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 7 of 13 PageID #: 503
a motion for summary judgment -- Mr. Neeley complained, as he does
here, that his artwork depicting nude figures was accessible to
users who conducted an internet search of his name. Mr. Neeley
made claims against Google based on those same facts in Neeley II.
As Google was a party in Neeley I and that case was resolved by a
judgment on the merits, the Court found that res judicata
precluded those claims against Google in Neeley II.
Now Mr. Neeley makes a third attempt to bring a claim against
Google based on that same set of facts. Yet neither the law nor
the Court's reasoning has changed. Accordingly, Mr. Neeley's claim
against Google regarding the association of his name with
"indecent images" is barred by res judicata.
(b)
In Neeley II, Mr. Neeley also complained, as he does
here, that Google invaded his privacy by scanning three
"figurenude" images from a New York library book. In the previous
case, the Court dismissed this claim without prejudice due to Mr.
Neeley's failure to state a claim upon which relief can be
granted. Because that dismissal was without prejudice, Mr. Neeley
was not barred from refiling that claim. See Semtek Int'l Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001). Therefore, the
Court will consider Google's arguments that Mr. Neeley has again
failed to state a claim upon which relief can be granted.
As discussed above, to recover for a claim of false-light
invasion of privacy, Mr. Neeley must show, among other things,
-7-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 8 of 13 PageID #: 504
that Google had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light in which
Mr. Neeley would be placed; and that Google acted with malice.
Dodrill, 265 Ark. at 638, 590 S.W.2d at 845.
As in Neeley II, Mr. Neeley has failed to allege any falsity
associated with the artwork that was attributed to him. And
although he accuses Google of being negligent in scanning and
uploading the photographs, Mr. Neeley has not shown that Google
acted in reckless disregard of the falsity of the photographs.
Thus, plaintiff has again failed to state a claim against Google
upon which relief can be granted.
15.
Accordingly, Google's Motion to Dismiss will be granted.

FCC'S MOTION TO DISMISS

16.
FCC's Motion to Dismiss is grounded primarily on lack of
subject-matter jurisdiction. FCC contends that Mr. Neeley failed
to properly exhaust his administrative remedies before filing this
lawsuit and further argues that the relief Mr. Neeley seeks -- an
injunction or "admonishment" -- is unavailable to him. It also
argues that, to the extent Mr. Neeley seeks review of FCC's
orders, this court is not the proper forum to do so.
17.
The federal government is generally immune to suit
unless it has expressly waived its sovereign immunity. United
States v. Mitchell, 445 U.S. 535, 538 (1980). The government has
done so in a limited manner with the enactment of the Federal Tort
-8-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 9 of 13 PageID #: 505
Claims Act (FTCA), which provides for district court jurisdiction
over certain torts committed by federal employees. 28 U.S.C.
§ 1346(b)(1). The FTCA requires that a claimant present his claim
in a particular manner, which includes a precise statement of the
amount of money damages the claimant seeks. Farmers State Sav.
Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir. 1989).
The FTCA provides only for money damages, not injunctive relief.
E. Ritter & Co. v. Dep't of Army, Corps of Eng'rs, 874 F.2d 1236,
1244 (8th Cir. 1989).
Mr. Neeley has made it clear -- in both his Second Amended
Complaint and his response to FCC's Motion to Dismiss -- that he
does not seek money damages from FCC. Rather, he seeks only the
audience of a jury so that FCC can be publicly admonished, in the
hope that this will motivate changes in the laws regarding
regulation of the internet. This type of relief is not
contemplated by the FTCA. It follows, then, that the federal
government has not waived its immunity from this kind of suit, and
this Court is without jurisdiction to hear it.
To the extent Mr. Neeley seeks review of FCC orders, Congress
has set out a precise method for this, in which review is given
exclusively to the jurisdiction of the courts of appeals, not the
district courts. 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a).
18.
For these reasons, FCC's Motion to Dismiss will likewise
be granted.
-9-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 10 of 13 PageID #: 506

MOTION FOR SANCTIONS

19.
In addition to seeking dismissal, Google has also filed
a Motion for Sanctions under Rule 11, arguing that this is Mr.
Neeley's third frivolous lawsuit regarding the same set of facts
and that the Court has repeatedly warned Mr. Neeley about the
possibility of sanctions for his actions. Google asks the Court to
impose an injunction on Mr. Neeley that would require him to seek
permission from the Court before filing any further motions,
pleadings, or pro se complaints relating to events previously
litigated.
20.
Rule 11 requires every attorney or pro se litigant to
certify that any pleading, motion, or other paper he presents to
the Court is not being presented for any improper purpose, such as
harassment or unnecessary delay, or to needlessly increase the
cost of litigation. Fed. R. Civ. P. 11(b)(1). Presentation to the
Court also certifies that the claims, defenses, and other legal
contentions are warranted by existing law or by a non-frivolous
argument for extending, modifying, or reversing existing law. Fed.
R. Civ. P. 11(b)(2), (3).
Pro se complaints are read liberally, but they are still held
to the requirements of Rule 11. Kurkowski v. Volcker, 819 F.2d
201, 204 (8th Cir. 1987). A pro se complaint "may be frivolous if
it is filed in the face of previous dismissals involving the exact
same parties under the same legal theories." Id.
-10-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 11 of 13 PageID #: 507
If a litigant violates Rule 11, the Court may impose an
appropriate sanction that is designed to deter repetition of the
conduct. Fed. R. Civ. P. 11(c)(1), (4).
21.
As discussed in detail above, this is Mr. Neeley's third
lawsuit regarding artwork depicting nude figures that is
accessible to users who conduct an internet search of his name.
Mr. Neeley has applied various labels to describe his claims:
copyright violations, invasion of privacy, defamation, "violation
of artist's moral rights," and various other undefined common law
rights, to name a few. However, none of his claims have held
merit, and it is becoming increasingly obvious that Mr. Neeley
feels compelled to pursue these baseless accusations until he is
ordered to stop.
In his response to the Motion for Sanctions (document #40),
Mr. Neeley writes
The District Court must either order this Plaintiff not
to pursue Google Inc further for display of Plaintiff's
naked female figures to the anonymous or Google Inc will
face this claim again and again or over and over, if not
repeatedly.
He goes on in his second response (document #43) to state that
"[t]he United States District Courts are not the only venue
pursued now by this Plaintiff."
In document #43, Mr. Neeley further admits
No naked images done by the Plaintiff are returned for
the last few months on ANY networked wire communication
searches for "curtis neeley" for the first time in
history of wire searches. This is true even for searches
-11-

Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 12 of 13 PageID #: 508
of "curtis neeley nude."
(Emphasis in original.) Given that document #43 was filed on
January 7, 2013, the Court can only conclude that the text-image
associations Mr. Neeley complains of have not even existed during
the majority of this lawsuit, including when he filed his Second
Amended Complaint.
In light of these facts, this lawsuit could be considered
nothing but frivolous.
22.
The Court finds that Mr. Neeley has violated Rule 11 by
filing repeated frivolous lawsuits regarding the same facts and
circumstances, which he now admits are no longer present.
Therefore, he will be sanctioned accordingly.
23.
The Court further finds that the sanction suggested by
Google is appropriate and is limited to what suffices to deter
repetition of Mr. Neeley's sanctionable conduct. Therefore, Mr.
Neeley will be enjoined from filing any further motions,
pleadings, or pro se complaints related to events previously
litigated without first obtaining the permission of the Court.

IT IS THEREFORE ORDERED

that
*

Microsoft Corporation's Motion to Dismiss for Failure to
State a Claim

(document #14);
*

Google Inc.'s Motion to Dismiss

(document #16); and
*

Federal Communications Commission's Motion to Dismiss
Amended Complaint

(document #54)
are all granted, and this matter is hereby dismissed with
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Case 5:12-cv-05208-JLH Document 58 Filed 02/15/13 Page 13 of 13 PageID #: 509
prejudice.

IT IS FURTHER ORDERED

that Google's

Motion for Sanctions

Under Rule 11

(document #36) is granted. Mr. Neeley is hereby
enjoined from filing any further motions, pleadings, or pro se
complaints related to events previously litigated without first
obtaining the permission of the Court.

IT IS SO ORDERED.

/S/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

-13-

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