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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Richmond Division
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`SUNDARIK. PRASAD,
`
`Plaintiff,
`
`V.
`
`CITY OF RICHMOND, et al.,
`
`Defendants.
`
`Civil Action No. 3:17CV39
`
`MEMORANDUM OPINION
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`Sundari K. Prasad, a Virginia inmate proceeding pro se and in forma pauperis, filed this
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`42 U.S.C. § 1983 action.' The matter is before the Court for evaluation pursuant to 28 U.S.C.
`
`§§ 1915(e)(2) and 1915A.
`
`L Preliminarv Review
`
`Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any
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`action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state
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`a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The
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`first standard includes claims based upon "an indisputably meritless legal theory," or claims
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`where the "factual contentions are clearly baseless." Clay v. Yates, 809 F. Supp. 417,427 (E.D.
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`Va. 1992) (quoting Ve/7zifce v. Williams, 490 U.S. 319,327 (1989)), ajfd, 36 F.3d 1091 (4th Cir.
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`' The statute provides, in pertinent part:
`
`Every person who, under color of any statute ... of any State ... subjects,
`or causes to be subjected, any citizen of the United States or other person within
`the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
`secured by the Constitution and laws, shall be liable to the party injured in an
`action at law....
`
`42 U.S.C. § 1983.
`
`

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`1994). The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P.
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`12(b)(6).
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`“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
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`importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
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`applicability of defenses.” Republican Party ofN. C. v. Martin, 980 F.2d 943, 952 (4th Cir.
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`1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
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`(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff’s well-pleaded
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`allegations are taken as true and the complaint is viewed in the light most favorable to the
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`plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980
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`F.2d at 952. This principle applies only to factual allegations, however, and “a court considering
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`a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
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`than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 US. 662,
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`679 (2009).
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`The Federal Rules of Civil Procedure “require[ ] only ‘a short and plain statement of the
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`claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
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`what the .
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`.
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`. claim is and the grounds upon which it rests.”’ Bell Atl. Corp. v. Twombly,
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`550 US. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 US. 41,
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`47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only “labels and
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`conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. (citations
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`omitted). Instead, a plaintiff must allege facts sufficient “to raise a right to relief above the
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`speculative level,” id. (citation omitted), stating a claim that is “plausible on its face,” id. at 570,
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`rather than merely “conceivable.” Id. “A claim has facial plausibility when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
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`2
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`

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`for the misconduct alleged.” Iqbal, 556 US. at 678 (citing Bell All. Corp, 550 U.S. at 556). In
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`order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must
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`“allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E]. DuPont de
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`Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp, 309 F .3d
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`193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,
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`while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
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`Cir. 1978), it will not act as the imnate’s advocate and develop, sua sponte, statutory and
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`constitutional claims that the inmate failed to clearly raise on the face of his or her complaint.
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`See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudelt v. City
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`ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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`II. Prasad’s Complaint
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`The action proceeds on Prasad’s Particularized Complaint (“Complaint,” ECF No. 12).
`
`In her Complaint, Prasad states:2
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`The City of Richmond violated my civil rights, namely, Anthony Mijares
`and the RVA Adult Expo in various different ways .
`.
`.
`.
`I was hired by Anthony Mijares for the RVA Adult Expo to write a press
`release and hire talent, and be a public relations representative (for television
`appearances, magazine write-ups, etc. all years) for the event.
`I gave Mijares an
`initial quote that he agreed upon and a contract—he never paid as agreed, [but]
`took advantage of my name and logo and advantage of my sponsor company
`(Hustler Magazine).
`[He] libeled [and] slandered me, [] and continued to use my
`likeness, name,
`image, PR write-up, appearance on television, and sponsor
`company as well as a parody of me “The Perfect Sun” to advertise his event,
`violating [my] trademark and never paid royalties, or hotel fees, or anything
`promised for [the] event.
`
`(Compl. 1.)
`
`2 Court corrects the capitalization and punctuation and omits the emphasis in quotations
`from Prasad’s Complaint. The Court also omits the internal numbering within Prasad’s claims.
`3
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`

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`From what the Court can legibly discern, Prasad’s claims for relief are:
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`Claim One:
`
`Claim Two:
`
`Claim Three:
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`“[The] City of Richmond allowed Anthony Mijares to violate 2257 laws.
`Anthony Mijares violated Prasad’s rights as a performer and did not pay
`her, violating all 2257 laws.” (Id.)
`
`“Mijares violate[d] Article 1 Bill of Rights Constitution of VA (1971) any
`citizen may freely speak, write, and publish his [sentiments] on all
`subjects—being responsible for abuse of that right. Defamational words
`were said .
`.
`. that harmed Prasad [and] led to loss of revenue [and]
`emotional damages.” (Id. at 2.)
`
`“Mijares [and the] RVA Adult Expo did not keep the rule of ‘peaceably’
`assembling. One could argue whether sexual events are peaceable where
`videos are sold that contain sexual violence—and fetish [and] BDSM adult
`performers were in attendance that were ‘violent’ and abusive that harmed
`Prasad emotionally [and] her PTSD—she is due a redress of her
`grievances.” (Id.)
`
`Claim Four:
`
`. Claim Five:
`
`Claim Six:
`
`“Mijares has to be held responsible for the abuse of the right of not
`peaceably assembling [and] defamation of [Prasad’s] character to the
`extent of having a performer parody her as ‘Perfect Sun.’ Violation of
`trademark. .
`.
`. Performer was Caucasian—racism implied .
`.
`. .” (Id.)
`
`“Mijares displayed racism as he did not pay Prasad (i.e. Sun Karma) due
`to defamation of character. .
`. [and] racism of 10th Amendment .
`.
`. .” (Id.
`at 3)
`
`[Prasad’s] press releases,
`“When Mijares still used ([and] his Expo)
`YouTube videos, etc. year after year and did not pay royalties, etc .
`.
`. he
`violated [the] 5th Amendment.
`[He] violated [the 5th Amendment by]
`taking her property ‘her money’ .
`. .” (Id.)
`
`.
`
`Claim Seven:
`
`“Mijares, when repeatedly asked for [Prasad’s] funds kept denying her her
`rights per her status — a 14th amend. violation and 13th .
`.
`. .” (Id.)
`
`Prasad alleges libel, slander, and defamation, a violation of trademark law under 15 U.S.C
`
`§ 1051(D)(1),3 and violations of the Fifth,4 Ten,5 Thirteenth,6 and Fourteenth7 Amendments.
`
`3 Although Prasad presumably intends to allege trademark infringement in violation of
`federal trademark law, the statutory provision she cites states a necessary requirement for an
`application for federal registration of a trademark. See 15 U.S.C. § 1051(d)(1) (West 2018).
`4
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`

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`(Id. at 2—3.) Prasad seeks declaratory and injunctive relief, as well as monetary damages. (Id. at
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`2—4.)
`
`III. Analysis
`
`It is both unnecessary and inappropriate to engage in an extended discussion of Prasad’s
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`theories for relief. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (emphasizing that
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`“abbreviated treatment” is consistent with Congress’s vision for the disposition of frivolous or
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`“insubstantial claims” (citing Neitzke v. Williams, 490 US. 319, 324 (1989»). Prasad’s .42
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`U.S.C. § 1983 claims will be dismissed because Prasad fails to allege facts upon which this
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`Court may infer a legitimate cause of action. However, because Prasad’s allegations are best
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`understood as a claim for breach of contract, the Court will dismiss her state law claims without
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`prejudice.
`
`A. Prasad fails to allege facts that indicate Anthony Mijares was acting under color of
`state law
`
`In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a
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`person acting under color of state law deprived him or her of a constitutional right or of a right
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`conferred by a law of the United States. See Dowe v. Total Action Against Poverty in Roanoke
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`Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1933). The “under color of state
`
`
`
`. deprived of life, liberty, or property, without due process of
`.
`4 “No person shall be .
`. .” US. Const. amend. V.
`
`law. .
`
`5 “The powers not delegated to the United States by the Constitution, nor prohibited by it
`to the States, are reserved to the States respectively, or to the people.” US. Const. amend. X.
`
`6 “Neither slavery nor involuntary servitude, except as a punishment for crime whereof
`the party shall have been duly convicted, shall exist within the United States, or any place subject
`to their jurisdiction.” US. Const. amend. X111.
`
`. deprive any person of life, liberty, or property, without due process
`.
`7 “No State shall .
`of law . . . .” US. Const. amend. XIV, § 1.
`
`5
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`

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`law” element of a § 1983 claim requires that “the conduct allegedly causing the deprivation of
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`[the plaintiff’s rights] be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 US.
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`922, 937 (1982). As a general rule, “a public employee acts under color of state law while acting
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`in his [or her] official capacity or while exercising his [or her] responsibilities pursuant to state
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`law.” West v. Atkins, 487 US. 42, 50 (1988) (citations omitted). If a 42 U.S.C. § 1983
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`defendant is not a public employee, he or she must still be shown to “act under color of state
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`law.” The United States Court of Appeals for the Fourth Circuit has identified three situations
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`where a private person is acting under color of state law for purposes of 42 U.S.C. § 1983
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`liability.
`
`First, a private party that is regulated by the state acts under color of state law
`where there is a sufficiently close nexus between the State and the challenged
`action of the regulated entity so that the action of the latter may be fairly treated
`as that of the State itself. Second, a private party acts under color of state law
`where the state, through extensive regulation of the private party, has exercised
`coercive power or has provided such significant encouragement that the action
`must in law be deemed to be that of the state. Finally, a private party acts under
`color of state law where the private entity has exercised powers that are
`traditionally the exclusive prerogative of the state.
`
`Conner v. DonneIIy, 42 F.3d 220, 224 (4th Cir. 1994) (internal citations and quotation marks
`
`omitted).
`
`At the outset, Prasad simply fails to allege that Anthony Mijares is a public employee or
`
`acted under color of state law. Prasad’s Complaint in no way identifies who Anthony Mijares is,
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`and does not explain that he is a public employee, that he was regulated by the Commonwealth
`
`of Virginia, or explain how he provided a traditionally public function. Instead, Prasad baldly
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`complains of his actions without alleging any facts upon which the Court may infer his 42 U.S.C.
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`§ 1983 liability. Therefore, Prasad’s 42 U.S.C. § 1983 claims against Anthony Mijares will be
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`DISMISSED for failure to state a claim.
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`

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`B. Prasad fails to allege facts to support a 42 U.S.C. § 1983 claim against the City of
`Richmond
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`Generally, a local government may not be sued under 42 U.S.C. § 1983 simply because
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`one of its agents inflicted an injury. Monell v. Dep ’t ofSoc. Servs., 436 US. 658, 694 (1978).
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`However, “when execution of a govemment’s policy or custom, whether made by its lawmakers
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`or by those whose edicts or acts may fairly be said to represent official policy, inflicts the
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`injury[,] the government as an entity is responsible under [42 U.S.C.] § 1983.” Id. But,
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`“municipal liability under [42 U.S.C.] § 1983 attaches where—and only where—a deliberate
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`choice to follow a course of action is made from among various alternatives by the official or
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`officials responsible for establishing final policy with respect to the subject matter in question.”
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`Pembaur v. City of Cincinnati, 475 US. 469, 483 (1986) (citation omitted).
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`In the present action, Prasad does not allege a single fact, or even a conclusory allegation,
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`that any official of the City of Richmond developed and enforced an unconstitutional policy or
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`custom. From the face of her Complaint, Prasad apparently believes the City is strictly liable
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`because the “RVA Adult Expo” took place within its limits and because Anthony Mijares
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`allegedly breached a contract and violated her various constitutional rights. (Compl. 1) But
`
`because municipal liability only attaches where an official chooses “to follow a course of action
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`made from among various alternatives,” Pembaur 475 US. at 483, Prasad’s 42 U.S.C. § 1983
`
`claims against the City of Richmond will be DISMISSED for failure to state a claim and as
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`legally frivolous.
`
`C. Prasad fails to allege facts to support a claim of trademark infringement
`
`In her Complaint, Prasad alleges a violation of trademark law under “1 5 U.S.C
`
`§ 1051(D)(1).” (Compl. 2.) Although Prasad presumably intends to allege trademark
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`

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`infringement in violation of federal trademark law, the statutory provision she cites states one of
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`the many necessary requirements for an application for federal trademark registration. See 15
`
`U.S.C. § 1051(d)(1) (West 2018). Nonetheless, Prasad has not alleged sufficient facts upon
`
`which this Court may infer Prasad has a valid trademark and that her trademark has been
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`infringed.
`
`To prevail on a trademark infringement claim under the federal Lanham Act,
`
`the trademark holder must prove: (I) that [he/she] possesses a mark; (2) that the
`[opposing party] used the mark; (3) that the [opposing party’s] use of the mark
`occurred ‘in commerce’;
`(4)
`that
`the [opposing party] used the mark ‘in
`connection with. the sale, offering for sale, distribution, or advertising’ of goods or
`services; and (5) that the [opposing party] used the mark in a manner likely to
`confuse consumers.
`
`Lamparello v. Falwell, 420 F.3d 309, 313 (4th Cir. 2005) (second through fourth alterations in
`
`original) (citing PETA v. Doughney, 263 F.3d 359, 364 (4th Cir. 2001)). Further, “[b]ecause the
`
`test for trademark infringement under the Lanham Act is essentially the same as [Virginia]
`
`common law trademark infringement .
`
`.
`
`.
`
`the[] claim need not be analyzed separately.” East
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`West, LLC v. Rahman, 896 F. Supp. 2d 488, 497 (ED. Va. 2012).
`
`As best as the Court can discern, Prasad alleges that Anthony Mijares used her trademark,
`
`“The Perfect Sun,” to advertise the RVA Adult Expo. (See Comp]. 2—3.) However, Prasad does
`
`not allege sufficient facts that would allow this Court to infer that she possessed the mark or that
`
`Mijares used the mark “‘in connection with the sale, offering for sale, distribution, or
`
`advertising’ of goods or services.” Lamparello, 420 F.3d at 313 (citation omitted).
`
`To begin, Prasad must demonstrate that she possessed the mark “The Perfect Sun.” Id.
`
`Prasad claims that she trademarked “The Perfect Sun” but does not plead that she registered the
`
`mark. See Southgate v. Facebook, Inc, No. 1:17—CV—648 (AJT/IDD), 2017 WL 6759867, at *3
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`

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`(ED. Va. Nov. 14, 2017) (explaining that “[b]ecause the Complaint pleads that Plaintiff has
`
`registered the Marks, the Complaint makes a prima facie showing of the validity of the mark and
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`Plaintiff’s ownership of it”), afl’d, 714 F. App’x 301 (4th Cir. 2018). However, “parties [may]
`
`utilize common law trademark infringement claims when they lack a federally registered
`
`trademark.” NSCO v. Colby_Exon, LLC, No. 3:16CV848, 2018 WL 1568684, at *8 (ED. Va.
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`Mar. 30, 2018). “Under common law, .
`
`.
`
`. ‘trademark ownership is acquired by actual use of the
`
`mark in a given marketplace?” Id. (quoting Emergency One, Inc. v. Am. Fire Eagle Engine Ca,
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`332 F.3d 264, 267 (4th Cir. 2003)). “Moreover, to acquire common law trademark rights, it is
`
`not enough to have invented the mark first or even to have registered it first; the party claiming
`
`ownership must have been the first to actually use the mark in the sale of goods or services.” Id.
`
`(internal quotation marks and citation omitted). “‘Use’ within the meaning of the Lanham Act is
`
`defined as bona fide commercial use in the market in which protection is sought and such use
`3,
`must be deliberate and continuous, not sporadic, casual or transitory. Larsen v. Terk Techs.
`
`Corp., 151 F.3d 140, 146 (4th Cir. 1998) (citations omitted).
`
`Prasad states that Mijares hired her “to write a press release and hire talent, and be a
`
`public relations representative” for the Adult RVA Expo, but that Mijares failed to pay her and
`
`continued to use her mark “The Perfect Sun.” (Compl. l.) The Court therefore construes Prasad
`
`to allege that she used the mark “The Perfect Sun” in connection with her services as a public
`
`relations representative. Consequently, since Prasad has not pled that she registered the “The
`
`Perfect Sun,” in order to state a claim for common law trademark infringement, she must allege
`
`that she was the first to actually use the mark in connection with her services as a public relations
`
`representative in Richmond, Virginia—the marketplace in which she alleges that Mijares
`
`infringed her mark. See Larsen, 151 F.3d at 146. This she fails to do. Prasad does not allege
`
`9
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`

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`that she was the first to use the mark “The Perfect Sun.” See TSX Toys, Inc. v. 665, Inc., No. ED
`
`CV l4—02400—RGK (DTBx), 2015 WL 12746211, at *5 (CD. Cal. Sept. 23, 2015) (dismissing a
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`claim of trademark infringement because the party pled “nothing to address [its] first use of the
`
`[mark].”). Further, Prasad does not allege a single time she used the mark “The Perfect Sun” in
`
`Richmond, Virginia prior to or after Mijares’ alleged infringement, and thus fails to plead that
`
`her use of the mark “The Perfect Sun” was anything but “sporadic, casual or transitory.”
`
`Larsen, 151 F.3d at 146. In all, Prasad’s allegation that she used “The Perfect Sun” once in
`
`connection with her services as a public relations representative without pleading any prior or
`
`subsequent use of the mark is insufficient to plead that she possessed the mark. See BNC
`
`BanCorp v. BNCCORP, INC., No. 1:15—cv—793, 2016 WL 3365428, at *5 (M.D.N.C. June 16,
`
`2016) (citation omitted) (denying temporary restraining order and preliminary injunction by
`
`party alleging trademark infringement, finding party failed to demonstrate deliberate and
`
`continuous use for trademark ownership); see also Allard Enters, Inc. v. Advanced
`
`Programming Res., Inc., 146 F.3d 350, 358 (6th Cir. 1998) (explaining that “a single use in trade
`
`may sustain trademark rights if followed by continuous commercial utilization”).
`
`Further, Prasad fails to allege that Mijares “used the mark ‘in connection with the sale,
`
`offering for sale, distribution, or advertising’ of goods or services.” Lamparello, 420 F.3d at 313
`
`(quoting PETA, 263 F.3d at 364)). Prasad alleges that she was hired by Mijares as a public
`
`relations representative and that he failed to pay her but continued to use her mark “‘The Perfect
`
`Sun’ to advertise his event,” presumably the Adult RVA Expo. (Compl. 1.) Elsewhere, Prasad
`
`states “Mijares has to be held responsible for the abuse of the right of not peaceably assembling
`
`[and] defamation of [Prasad’s] character to the extent of having a performer parody her as
`
`‘Perfect Sun.’ Violation of trademark
`
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`.
`
`. Performer was Caucasian—racism implied .
`
`.
`
`. .” (1d. at 2.) But Prasad fails to identify
`
`any goods or services that were sold or advertised at the Adult RVA Expo that used her mark.
`
`See Tart Optical Enters, LLC v. Light Co., No. LA CV16—0806l JAK (MRWx), 2017 WL
`
`5957729, at *9 (CD. Cal. May I, 2017) (dismissing a claim of trademark infringement because
`
`“[n]one of the allegations identifies any goods or services linked to [defendants] for which the
`
`alleged Infringing Marks have been used”).8 In all, Prasad’s allegations that she has
`
`trademarked “The Perfect Sun” and that it was infringed upon by Mijares are entirely conclusory
`
`and thus she fails to state a plausible claim for relief.9 Accordingly, Prasad’s claim of trademark
`
`infringement will be DISMISSED for failure to state a claim.
`
`D. Prasad’s remaining allegations are state law claims over which this Court lacks
`iurisdiction
`_
`_
`
`Generously construed, Prasad’s remaining allegations against Anthony Mijares are best
`
`understood as a claim for breach of contract, presumably under Virginia law, and an allegation of
`
`defamation against Anthony Mijares under Virginia law. Generally, supplementary state law
`
`claims should be dismissed if the federal claims are dismissed before trial. See United Mine
`
`Workers ofAm. v. Gibbs, 383 US. 715, 726 (1966). Given the preliminary dismissal of Prasad’s
`
`federal claims, any state law claims will be DISMISSED WITHOUT PREJUDICE.
`
`8 Moreover, Prasad fails to plead any facts that allow this Court to plausibly infer that
`Mijares used her mark “The Perfect Sun” in a manner likely to confuse consumers. See All- U-
`Need Temp. Servs. Inc. v. First Transit, Inc., No. DKC 09—3229, 2010 WL 2560089, at *4 (D.
`Md. June 18, 2010) (dismissing plaintiff’s trademark infringement claims and concluding, inter
`alia, that plaintiff offered no facts to support a showing of likelihood of confusion).
`
`9 In fact, Prasad primarily complains that Mijares used a “parody” of her mark to
`advertise for the RVA Adult Expo. (Compl. 1.) Generally, however, parodies of trademarks do
`not state a claim for trademark infringement. See Louis Vuitton Malletier S.A. v. Haute Diggity
`Dog, LLC, 507 F.3d 252, 263 (4th Cir. 2007).
`
`11
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`Case 3:17-cv-00039-MHL-RCY Document 14 Filed 06/15/18 Page 12 of 12 PageID# 67
`Case 3:17—cv-00039-MHL-RCY Document 14 Filed 06/15/18 Page 12 of 12 Page|D# 67
`
`MM}!
`
`For the foregoing reasons, Prasad’s 42 U.S.C. § 1983 claims against Anthony Mijares
`
`and the City of Richmond will be DISMISSED FOR FAILURE TO STATE A CLAIM; Prasad’s
`
`claim of trademark infringement will be DISMISSED FOR FAILURE TO STATE A CLAIM.
`
`Prasad’s remaining state law claims will be DISMISSED WITHOUT PREJUDICE. The action
`
`will be DISMISSED.
`
`An appropriate Order will accompany this Memorandum Opinion.
`
`JUN 15 2018
`Date:
`Richmond, Virginia
`
`
` M. Hannah La
`United States
`
`12
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