A panel of judges from the United States Third Circuit Court of Appeals has affirmed the ruling of a district court, which dismissed a complaint against NBA Hall of Famer and media personality Charles Barkley after finding the claim brought by a pro se litigant was frivolous.
Ronald Emrit, a frequent pro se litigant, alleged that while “using his Hotmail account,” he “frequently sees vertical banner advertisements featuring Charles Barkley for either a sporting goods store, Fanduel, or Subway.” He also claimed that he “constantly” sees “advertisements from either Subway, Fanduel, or a sporting goods store featuring Charles Barkley as a spokesperson,” while watching cable television. Emrit charged that these advertisements and commercials “are annoying and interfere with [his] concentration especially while [he] is using his Hotmail account in the ordinary course of business.”
Further, he alleged that because of his “well-known” litigation against the Central Intelligence Agency (CIA) in Iowa, Maryland, Virginia, West Virginia, Maryland, Washington, D.C. and Northern Florida, the “CIA utilizes advertisements of Charles Barkley on Subway, FanDuel, and sporting goods to annoy or harass [him].”
Based on these allegations, Emrit brought the following claims: (Count One) Violation of Business Judgment Rule; (Count Two) Violation of CAN-SPAM Act of 2003 and Consumer Laws Related to Junk Faxes; (Count Three) Violation of Regulations Involving Do-Not-Call Registry; (Count Four) Public Nuisance; (Count Five) Invasion of Privacy Through Intrusion Upon Seclusion; (Count Six) Products Liability; (Count Seven) Breach of Implied Warranty of Merchantability; and (Count Eight) Breach of Implied Warranty of Fitness for Particular Purpose.
In the complaint, Emrit sought $45 million in relief from the defendants, along with a “‘cease and desist order’ in which the three defendants are precluded and/or enjoined from advertising to [him] on Microsoft/Hotmail or Cable TV.”
The panel noted that the magistrate judge screened the complaint under 28 U.S.C. § 1915(e)(2)(B), and recommended dismissing the complaint because Emrit “had failed to state a short and plain statement for relief under Federal Rule of Civil Procedure 8, and because venue in the Middle District of Pennsylvania was improper. The district court adopted that recommendation and dismissed the complaint without extending leave to amend the complaint.”
Emrit appealed.
On appeal, the panel wrote, “[w]e will affirm the dismissal because Emrit’s complaint is frivolous,” citing § 1915(e)(2)(B). “His allegations that the CIA is publishing advertisements involving Charles Barkley to harass him are baseless and fantastical. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (a complaint is frivolous if it ‘lacks an arguable basis either in law or in fact,’ which ‘embraces not only the inarguable legal conclusion, but also the fanciful factual allegation’). Furthermore, Emrit’s vague references to various federal statutes do not establish a legal basis for relief.
“Under these circumstances, the District Court also did not err in denying Emrit’s complaint without leave to amend because amendment would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Emrit’s appellate brief tends only to confirm this point. There, he renewed the allegations in his complaint and argued that the advertisements provided a way for technology companies to ‘engage in a form of mind control to turn humans into artificial intelligence.’ C.A. No. 4 at 5. Accordingly, we will affirm the judgment of the District Court.”
Ronald Emrit v. Charles Barkley et al.; 3rd Cir.; 2023 U.S. App. LEXIS 11188, 2023 WL 3300970; 4/26/23
