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Polonczyk v. Gates

United States District Court, N.D. Florida, Pensacola Division

March 16, 2017

KIM ANTHONY POLONCZYK, Plaintiff,
v.
BILL GATES, et al., Defendants.

          REPORT AND RECOMMENDATION

          GARY R. JONES United States Magistrate Judge.

         This matter is before the Court on ECF No. 3, HP Inc. and Microsoft Corporation's Motion to Dismiss and Incorporated Memorandum Brief in Support Thereof.[1] The Court ordered Plaintiff to show cause on or before January 20, 2017, as to why Defendants' motion to dismiss should not be granted. (ECF No. 4.) Rather than responding to the Court's order, Plaintiff filed a “Motion to Correct Information Notice of Appeal, ” which the Court construed as a motion for remand and denied. (ECF Nos. 5 & 6.) Plaintiff then filed “Motion Please Take Judicial Notice Courtesy response to order to show cause.” (ECF No. 7.) Plaintiff's response, however, failed to address Defendants' motion to dismiss and instead requested “40 billion dollars to agree to have this action heard in federal court.” (Id.) As of the date of this Report and Recommendation, Plaintiff has not filed a response that actually addresses Defendants' motion to dismiss. The motion is, therefore, ripe for review. For the reasons explained below, it is recommended that Defendants' motion to dismiss should be granted.

         I. INTRODUCTION

         Plaintiff previously filed a similar pro se complaint in the Northern District of Florida. See Case No. 3:16-cv-49-MCR-EMT. In that case, Plaintiff named the same five defendants, claiming that they are guilty of civil RICO violations and violations of the ADA and the Personal Data and Privacy Security Act of 2009. Id. Plaintiff also asserted claims of “civil felony harassment, ” “internet commerce violations, ” breach of contract, invasion of privacy, internet piracy, and a”violations of many internet information security laws and regulations.” Id. The Magistrate Judge in that case issued a Report and Recommendation to dismiss the case without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), finding that Plaintiff's claims were either frivolous or failed to state a claim for which relief may be granted. Id. Before that Report and Recommendation was adopted, however, Plaintiff voluntarily dismissed the case. Id.

         Plaintiff then initiated this case on September 19, 2016, by filing a pro se complaint in the Circuit Court in and for Escambia County, Florida. (ECF No. 1-1, “Compl.”) Defendants then filed a notice of removal on November 8, 2016, pursuant to 28 U.S.C. §§ 1331, 1332, 1367, 1441, and 1446. (ECF No. 1.) With the case now pending in the U.S. District Court for the Northern District of Florida, Defendants filed their motion to dismiss. (ECF No. 3.) Defendants move to dismiss the claims for various pleading deficiencies and Plaintiff's failure to state a valid cause of action against Defendants. (Id.)

         II. BACKGROUND

         Plaintiff, proceeding pro se, filed a complaint against Defendants for

harassment, bullying, invading a computer without permission, civil RICO, Internet home invasion, Internet bullying, civil contempt, breach of contract, intellectual theft, destruction of private property, civil acts of conspiracy, intentionally adding viruses on the Internet and private computers, civil extortion as well as criminal, personal degradation of a severely disabled brain tissue damaged Plaintiff “Your [sic] too stupid to use Microsoft products, ” selling products to purchasers without turning ownership over to the Plaintiff (computers, printers and software).

(Compl. at 1.) Although Plaintiff lists this multitude of claims at the beginning of his Complaint, he does not allege facts or law related to any of the claims in the remainder of the Complaint.

         Plaintiff asserts that Defendants regularly invade his home through his computer without permission, invade his computer, and erase and steal information from his computer's hard drive. Plaintiff also states that Defendants created a false Facebook page, rendered his computer equipment no longer usable, and held Plaintiff's information hostage, offering to give it back to him at a price he cannot afford. (Id. at 3-5.)

         Despite all of the allegations listed above, Plaintiff's complaint purports to bring claims for: (1) RICO violations, (2) breach of contract, and (3) stalking and civil felony harassment under Florida law.

         Plaintiff first attempts to allege RICO violations, stating that Defendants sell computers that they put viruses on and then charge individuals “huge sums of money” to remove the viruses. Plaintiff says that Defendants then demand money for software to protect computers from the viruses they placed on the computer through their software packages. He also says Defendants destroyed his printers and hard drives. (Id. at 5-7.)

         Plaintiff next alleges that Defendants breached their contract with Plaintiff. Plaintiff asserts that when he purchased his computer and software, Plaintiff was not aware that he would not be the owner of it, that his information was subject to review, that the software contained a virus, or that Defendants would demand money to repair the issues created by the virus. Plaintiff asserts that there was an implied contract when he purchased his computer and software, which Plaintiff suggests means that he could assume that he could freely use the products he purchased. Despite these assumptions, Plaintiff states that instead he was subject to continued harassment from Defendants, including a virus that Plaintiff alleges wiped his hard drive, and that Defendants refused to restore his software without a receipt from ten years prior. Plaintiff also includes allegations about Defendants destroying other computer products and information on his computer as well as allegations that Defendants would not purchase their products and equipment from Plaintiff and have not delivered his laptop computer under his breach of contract claim.[2] (Id. at 8-15.)

         Lastly, Plaintiff alleges that he has a claim against Defendants under Florida's law for stalking and civil felony harassment, citing Florida Statute § 784.048. Plaintiff states that “the actions that the defendants have taken against ...


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