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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAHMEL BINION, 

 Plaintiff, 

v. Case No. 14-13454 

 HON. AVERN COHN 

SHAQUILLE O’NEAL; ALFONSO 

CLARK “TREY” BURKE, III; and 

JUAQUIN MALPHURS a/k/a WAKA 

FLOCKA FLAME, 

 Defendants. 

______________________________________/ 

ORDER GRANTING TREY BURKE’S MOTION TO DISMISS (Doc. 3) 

I. INTRODUCTION

 This is an invasion of privacy case. Jahmel Binion (Plaintiff) is suing Shaquille 

O’Neal (O’Neal), Alfonso Clark “Trey” Burke (Burke), and Juaquin Malphurs (Malphurs) 

(collectively, Defendants) claiming that Defendants posted mocking and ridiculing 

photographs of him on social media websites. The Complaint is in four counts: 

COUNT I: Invasion of Privacy 

COUNT II: Intentional Infliction of Emotional Distress 

COUNT III: Defamation 

COUNT IV: General Negligence 

 Now before the Court is Burke’s Motion to Dismiss.1 (Doc. 3) For the following 

reasons, Burke’s motion is GRANTED. 

II. BACKGROUND 

 

1 Burke frames his motion as a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

and/or for summary judgment under Fed. R. Civ. P. 56. Because there has been no 

discovery, Burke’s motion for summary judgment is premature. The Court considers 

Burke’s motion as a motion to dismiss, based on the allegations in the Complaint, and 

as supplemented by statements during oral argument. 

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A. 

 Instagram is a social media website that describes itself as a “fun and quirky way 

to share your life with friends through a series of pictures.” (FAQ, INSTAGRAM.COM, 

https://instagram.com/about/faq/ (last visited Mar. 5, 2015)) Every Instagram user is 

advised that “[a]ll photos are public by default which means they are visible to anyone 

using Instagram or on the instagram.com website.” (Id.) However, Instagram allows 

users to “make [their] account private” such that “only people who follow [the user] on 

Instagram will be able to see [their] photos.” (Id.) If the Instagram user fails to make 

his/her account private, “anyone can subscribe to follow [their] photos.” (Id.) 

 Instagram’s privacy policy states that “[b]y using our Service you understand and 

agree that we are providing a platform for you to post content, including photos, 

comments and other materials (“User Content”), to the Service and to share User 

Content publicly. This means that other Users may search for, see, use, or share any of 

your User Content that you make publicly available through the Service.” (Privacy 

Policy, INSTAGRAM.COM, https://instagram.com/about/legal/privacy/ (last visited Mar. 5, 

2015)) The privacy policy further states, “[a]ny information or content that you 

voluntarily disclose for posting to the Service, such as User Content, becomes available 

to the public, as controlled by any applicable privacy settings that you set. . . . Once you 

have shared User Content or made it public, that User Content may be re-shared by 

others.” (Id.) 

 Like Instagram, Twitter is a social media website that allows users to post 

“Tweets,” which are described as “an expression of a moment or idea. It can contain 

text, photos, and videos. Millions of Tweets are shared in real time, every day.” (The 

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Story of a Tweet: What Is a Tweet, TWITTER.COM, https://about.twitter.com/what-istwitter/story-of-a-tweet (last visited March 12, 2015)). As with Instagram, Twitter allows 

users to “share photos, in real time, with everyone or with the people [they] choose.” 

(So Much More than Words, TWITTER.COM, https://about.twitter.com/products/photosharing (last visited March 12, 2015)). Twitter users can also “follow” other users, so 

that others’ Tweets will appear in the user’s Twitter feed. Finally, Twitter allows users to 

re-post or “Retweet” content from other users’ Twitter feeds to be shared with their own 

followers. (The Story of a Tweet: What Is a Tweet, TWITTER.COM, 

https://about.twitter.com/what-is-twitter/story-of-a-tweet (last visited March 12, 2015)). 

B. 

 Because the Court is responding to Burke’s Motion to Dismiss, the facts alleged 

in the Complaint (Doc. 1-1) are accepted as true and are summarized below. 

 Plaintiff is an individual who resides in Macomb County, Michigan. Plaintiff 

suffers from a rare genetic condition called ectodermal dysplasia, which causes 

cosmetic abnormalities in the hair, nails, sweat glands, and teeth. Burke is a 

professional basketball player for the Utah Jazz, residing in Salt Lake City, Utah. 

 In April of 2014, when Plaintiff was approximately 23 years old, Plaintiff posted a 

number of photographs of himself on his public Instagram account. Shortly thereafter, 

Juaquin Malphurs obtained and reposted Plaintiff’s photograph on his public Instagram 

account. Burke later obtained Plaintiff’s photograph from Malphur’s account and 

reposted it on his Instagram account with the caption, “Hacked by @IanClark.” 

“IanClark” is the username of Ian Clark, close friend and teammate of Burke. 

In moving to dismiss under Rule 12(b)(6), Burke argues that Plaintiff’s Complaint 

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fails to state a claim upon which relief can be granted. 

III. STANDARD OF REVIEW 

 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests 

the sufficiency of a complaint. To survive a Rule 12(b)(6) motion to dismiss, the 

complaint’s “factual allegations must be enough to raise a right to relief above the 

speculative level on the assumption that all of the allegations in the complaint are true.” 

Bell Atlantic Corp. v. Twombley, 550 U.S.544, 545 (2007). The court is “not bound to 

accept as true a legal conclusion couched as a factual allegation.” Aschcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Moreover, 

“[o]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” 

Id. at 679. Thus, “a court considering a motion to dismiss can choose to begin by 

identifying pleadings that, because they are no more than conclusions, are not entitled 

to the assumption of truth. While legal conclusions can provide the framework of a 

complaint, they must be supported by factual allegations. When there are well-pleaded 

factual allegations, a court should assume their veracity and then determine whether 

they plausibly give rise to an entitlement to relief.” Id. In sum, “[t]o survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a 

claim for relief that is plausible on its face.” Id. at 678 (internal quotation marks and 

citation omitted). 

IV. DISCUSSION 

 This is a diversity case. Therefore, Michigan substantive law applies. Armisted 

v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012). Burke argues that 

Plaintiff’s claims must be dismissed for failure to state a claim under Michigan law. 

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A. Invasion of Privacy 

 Under Michigan law, invasion of privacy torts are grouped into four categories: 

(1) “[i]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs”; (2) 

“[p]ublic disclosure of embarrassing private facts about the plaintiff”; (3) “[p]ublicity 

which places the plaintiff in a false light in the public eye”; (4) “[a]ppropriation, for the 

defendant’s advantage, of the plaintiff’s name or likeness.” Beaumont v. Brown, 401 

Mich. 80, 108 (1977), overruled on other grounds, Bradley v. Saranac Cmty. Sch. Bd. of 

Educ., 455 Mich. 285 (1997). Plaintiff’s complaint sounds in all four causes of action. 

1. Intrusion 

 “There are three necessary elements to establish a prima facie case of intrusion 

upon seclusion: (1) the existence of a secret and private subject matter; (2) a right 

possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of 

information about that subject matter through some method objectionable to a 

reasonable man.” Doe v. Mills, 212 Mich. App. 73, 88 (1995). 

 Burke says that the “information”—the photograph of Plaintiff—was obtained via 

the Instagram account of Malphurs, which was originally obtained from Plaintiff’s public 

Instagram account. Burke argues that no reasonable person, particularly in the social 

media age, would find it objectionable to obtain and repost a photograph that someone 

had already posted publicly. This argument is persuasive and, furthermore, Plaintiff 

concedes this point in his response. 

 Therefore, Plaintiff cannot establish a prima facia case of intrusion upon 

seclusion. 

2. Public Disclosure 

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 Invasion of privacy by publicity involves the public disclosure of embarrassing 

private facts. See Beaumont, 401 Mich. at 95-96. “A person who unreasonably and 

seriously interferes with another’s interest in not having his affairs known to others or his 

likeness exhibited to the public is liable to the other.” Id. at 105. “Embarrassing private 

facts” consist of information that concerns the plaintiff’s private life. Mills, 212 Mich. 

App. at 82. The disclosed information must be “highly offensive to a reasonable person 

and of no legitimate concern to the public.” Sargent v. Barbara Ann Karmanos Cancer 

Institute, 2003 WL 21359350 (E.D. Mich., Feb 7, 2003) (citation omitted). 

 Here, Burke argues that the Complaint fails to make clear what “embarrassing 

private facts” were publicly disclosed. Indeed, the only “fact” publicized was the 

photograph of Plaintiff, which had already been posted publicly by Plaintiff and reposted 

by Malphurs and others. Plaintiff says that Burke’s posting revealed private information 

relating to his medical condition—namely, that he suffers from ectodermal dysplasia. 

However, Burke’s posting did not state that Plaintiff suffered from any particular medical 

condition. Finally, Plaintiff had already posted his photograph publicly on his public 

Instagram account. Therefore, his photograph is not “private.” See Doe v. Peterson, 

784 F. Supp. 2d 831, 841 (E.D. Mich. 2011) (granting summary judgment on public 

disclosure claims because images of plaintiff had already been posted on at least one 

other website, and therefore were not private facts). 

 Therefore, Plaintiff cannot establish a prima facia case of public disclosure. 

3. False Light 

 False light entails the publication of false information regarding the plaintiff, 

resulting in damage. The cause of action requires the plaintiff to allege that publication 

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“attribut[ed] to the plaintiff characteristics, conduct, or beliefs that were false and placed 

the plaintiff in a false position.” Duran v. The Detroit News, 200 Mich. App. 622, 632 

(1993). The two necessary elements to make out a false light claim are (1) publicity and 

(2) placement of the plaintiff in a false light in the public eye. Ledl v. Quik Pik Food 

Stores, Inc., 133 Mich. App. 583, 591 (1984). The defendant “must have had 

knowledge of or acted in a reckless disregard as to the falsity of the publicized matter 

and the false light in which the other would be placed.” Duran, 200 Mich. App. at 632. 

 Here, Burke says that Plaintiff cannot show how the reposting of his photographs 

placed him in a false light in the public eye—especially when Plaintiff had voluntarily 

posted the photographs on his public Instagram account. Plaintiff states that, “[f]rom the 

nature of the pictures posted, one could reasonably infer that the defendants sought to 

portray [him] as a moron.” (Doc. 5 at 13) However, Burke did nothing to alter the 

photograph and made no statements regarding the photograph, Plaintiff, or his medical 

condition. Courts have held that publication of true-likeness photographs do not 

constitute “information that [is] unreasonable and highly objectionable by attributing to 

the plaintiff characteristics, conduct, or beliefs that [are] false and place[] the plaintiff in a 

false position.” Rhoads v. Baker Coll., No. 280150, 2008 WL 4648972, at *6 (Mich. Ct. 

App. Oct. 21, 2008) (citing Duran, 200 Mich. App. at 631-32). 

 Therefore, Plaintiff cannot establish a prima facia case of false light. 

4. Appropriation 

 Invasion of privacy through appropriation occurs when a person uses another’s 

name or likeness without permission, to their own pecuniary benefit. Restatement 

(Second) of Torts, § 652C. 

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 Here, there is no allegation that Burke posted the photograph of Plaintiff for his 

pecuniary advantage, or that Burke in any way profited from posting the photograph. 

Although Plaintiff says that Burke “is actively seeking to grow his brand” through selfpromotion (Doc. 5 at 15), Plaintiff has failed to demonstrate how posting pictures of him 

would result in Burke’s pecuniary benefit. Nor can Plaintiff establish that there is a 

“pecuniary interest or significant commercial value in [his] identity,” such that would 

result in profit to Burke. Armstrong v. Eagle Rock Entm’t, Inc., 655 F. Supp.2d 779, 785 

(E.D. Mich. 2009). 

 Therefore, Plaintiff cannot establish a prima facia case of appropriation. 

B. Intentional Infliction of Emotional Distress 

 An intentional infliction of emotional distress (IIED) claim requires “(1) extreme 

and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe 

emotional distress.” Duran, 622 Mich. App at 629-30. Conduct is not considered 

“extreme and outrageous” if it is merely insulting. Rather, the defendant’s conduct must 

be “so outrageous in character and so extreme in degree that it goes beyond all 

possible bounds of decency and is regarded as atrocious and utterly intolerable in a 

civilized community.” Grochowalski v. DAIIE, 171 Mich. App. 771, 775-76 (1988). A 

defendant is not liable for “mere insults, indignities, threats, annoyances, petty 

oppressions or other trivialities.” Mills, 212 Mich. App. at 91. 

 Here, Burke says that Plaintiff cannot demonstrate that Burke’s conduct was 

sufficiently extreme and outrageous to establish prima facie case. Burke says that he 

merely shared a photograph that had already been posted on Plaintiff’s public account 

and reposted on Malphurs’ account, and that he made no comment related to the 

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photograph, Plaintiff, or his medical condition. Finally, Burke says that even if one could 

infer that Burke was indirectly mocking Plaintiff’s appearance, the law is clear that “mere 

insults” are insufficient to establish an IIED claim. 

 Burke’s arguments have merit. Although the widespread distribution of Burkes 

post can certainly make the offensive nature of his postings more acute, given the fact 

that Plaintiff’s pictures were already publicly available on social media websites, Burke’s 

conduct does not rise to a level than be considered “beyond all possible bounds of 

decency” or “atrocious and utterly intolerable.” Further, although Plaintiff argues that 

there should be discovery as to the degree of emotional stress suffered by Plaintiff, he 

is otherwise unable to show that Burke’s conduct was sufficiently extreme and 

outrageous. Plaintiff therefore has failed to establish a prima facia case of intentional 

infliction of emotional distress. 

C. Defamation 

 To establish defamation, Plaintiff must allege (1) “a false and defamatory 

statement concerning the plaintiff”; (2) “an unprivileged publication to a third party”; (3) 

“fault amounting to at least negligence on the part of the publisher”; and (4) “either 

actionability of the statement irrespective of special harm or the existence of special 

harm caused by the publication.” Rouch v. Enquirer & News, 440 Mich. 238, 251 

(1992). Where there is no evidence of a false statement, Michigan recognizes a cause 

of action for defamation by implication, but only if the plaintiff proves that the defamatory 

implications are materially false. Hawkins v. Mercy Health Servs., Inc., 230 Mich. App. 

315, 329-30 (1998). Even when defamation takes place by implication, a plaintiff must 

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plead with specificity the statements that form the basis of the defamatory implication. 

Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197 Mich. App. 48, 57 (1992). 

Further, for a statement to be defamatory, it must capable of interpretation by a 

reasonable listener as stating “actual facts” about the plaintiff, as opposed to statements 

of opinion. Ireland v. Edwards, 230 Mich. App. 607, 617 (1998) (citing Hustler 

Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988); Milkovich v. Lorain Journal Co., 497 

U.S. 1, 16-17 (1990)). 

 Here, the Complaint alleges no single statement to Burke. Instead, Plaintiff 

contends that the photograph posted by Burke implies that Plaintiff is mentally 

handicapped, or that his appearance makes him worthy of ridicule. Neither argument 

has merit. 

 At most, Burke posted a true and accurate photograph of Plaintiff—the same 

photograph that Plaintiff posted on his public Instagram account. Plaintiff cannot 

identify with specificity any statements attributable to Burke that definitively create this 

implication. Nor does Plaintiff argue that the caption “Hacked by @IanClark” implies 

that Plaintiff is handicapped. Although Plaintiff cites authority for the proposition that a 

photograph can create the implication that a person is mentally handicapped, the case 

cited is distinguishable because the photograph was posted with the caption, “Help for 

the Mentally Retarded.” See Brauer v. Globe Newspaper Co., 351 Mass. 53, 55 (1966). 

 Even if Burke was suggesting that Plaintiff’s appearance makes him worthy of 

ridicule, this would not be sufficient to make out a defamation claim. Michigan courts 

have held that insults and other derogatory comments on “Internet message boards and 

similar communication platforms” are best regarded as “statements of pure opinion, 

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rather than statement or implications of actual, provable fact.” Ghanam v. Does, 303 

Mich. App. 522, 547 (2014). Finally, although Plaintiff argues that there should be 

discovery as to Burke’s degree of negligence, Plaintiff is otherwise unable to show that 

Burke’s posted a false and defamatory statement. 

 Plaintiff therefore has failed to establish a prima facia case of defamation. 

D. General Negligence 

 To establish a prima facie case of negligence, a plaintiff must prove the following 

four elements: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that 

duty, (3) causation, and (4) damages.” Case v. Consumers Power Co., 463 Mich. 1, 6 

(2000). “A negligence action may only be maintained if a legal duty exists which 

requires the defendant to conform to a particular standard of conduct in order to protect 

others against unreasonable risks of harm.” Maiden v. Rozwood, 461 Mich. 109, 131 

(1999) (citation omitted). To determine whether the relationship between the parties is 

sufficient to create a legal duty, a court must consider “whether the defendant is under 

any obligation for the benefit of the particular plaintiff . . . .” Id. at 132 (citations and 

internal quotation omitted). Another important consideration in whether a defendant 

owes a duty is “whether it is foreseeable that the actor’s conduct may create a risk of 

harm to the victim, and whether the result of that conduct and intervening causes were 

foreseeable.” Moning v. Alfono, 400 Mich. 425, 439 (1977). 

 Burke argues that Plaintiff has not sufficiently alleged a legal duty that exists 

between them, other than “the general duty to conform to the legal standard of 

reasonable conduct in the light of the apparent risk.” (Doc. 1-1 at 6). Burke further says 

that his relationship with Plaintiff is no different than with the millions of other Instagram 

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users who post photographs that can be shared, reposted, and commented on. 

 In response, Plaintiff argues that when posting mocking photographs of a 

stranger to a large audience, it is foreseeable that an emotional harm will result. 

However, Plaintiff cites no case law in support of his theory that social media users owe 

any particular duty to the person whose photographs they repost, or that any emotional 

harm is a foreseeable consequence. Further, Plaintiff did not allege the negligent 

infliction of emotional distress2 and provides no support that emotional harms are 

recoverable under traditional negligence theory. 

 Plaintiff’s general negligence claim therefore cannot prevail. 

V. CONCLUSION 

 For the above reasons, Burke’s Motion to Dismiss has been granted. Plaintiff’s 

claims against Burke are therefore DISMISSED. 3

 SO ORDERED. 

 s/Avern Cohn 

 UNITED STATES DISTRICT JUDGE 

DATED: April 2, 2015 

I hereby certify that a copy of the foregoing document was mailed to the attorneys of 

record on this date, April 2, 2015, by electronic and/or ordinary mail. 

 

 s/Sakne Chami 

 Case Manager, (313) 234-5160 

 

2 Even if Plaintiff had alleged negligent infliction of emotional distress, this cause of 

action requires some actual physical harm. See Taylor v. Kurapati, 236 Mich. App. 315, 

360 (1999). Here, Plaintiff alleges no such harm. 

3 The Court dismissed the claims against O’Neal in a separate order. However, 

Plaintiff’s claims against Malphurs are still pending. Because Malphurs failed to plead 

or otherwise defend, the Clerk of the Court filed an Entry of Default on January 7, 2015 

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