ROOKS et al v. PROCTOR AND GAMBLE INC

Filing 6

ORDER denying 5 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis; dismissing Plaintiff's complaint without prejudice. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 4/4/17 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JONATHAN J. ROOKS, et al.

:
:
Plaintiffs,
:
VS.
:
:
PROCTOR AND GAMBLE, INC.,
:
:
Defendant.
:
________________________________ :

NO. 5:16-CV-553-CAR-MSH

ORDER
Pro se Plaintiff Jonathan J. Rooks,1 an inmate currently confined at the Jenkins
Correction Center in Millen, Georgia, has filed a complaint under 42 U.S.C. § 1983.
Plaintiff also seeks leave to proceed without prepayment of the filing fee or security
therefor pursuant to 28 U.S.C. § 1915(a).

For the following reasons, the Court

DISMISSES Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2)(B).

The Court

GRANTS Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) for
purposes of this dismissal only.
I.

Motion for Appointment of Counsel

Plaintiff has moved for the appointment of counsel (ECF No. 5). Under 28 U.S.C.
§ 1915(e)(1), the Court “may request an attorney to represent any person unable to afford
counsel.” There is, however, “no absolute constitutional right to the appointment of
counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)
1

Plaintiff also names as a Plaintiff in this case a business entity with which he is
presumably affiliated, “Rabbi Entreprenurs [sic] of America LLC.”

(per curiam). Appointment of counsel is a privilege that is justified only by exceptional
circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether
legal counsel should be provided, the Court considers, among other factors, the merits of
Plaintiff’s claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850,
853 (11th Cir. 1989) (en banc).
In this case, the Court is required to review Plaintiff’s Complaint to determine
whether Plaintiff’s allegations state a colorable legal claim. This process is routine in pro
se prisoner actions and is thus not an “exceptional circumstance” justifying appointment
of counsel. The facts as stated in Plaintiff’s current Complaint are not complicated, and
the law governing Plaintiff’s claims is neither novel nor complex. Plaintiff’s motion to
appoint counsel (ECF No. 5) is accordingly DENIED.
II.

Preliminary Screening

Because Plaintiff is proceeding in forma pauperis in this case, the Court will
conduct a preliminary screening of Plaintiff’s Complaint in accordance with the
provisions of 28 U.S.C. § 1915(e)(2)(B). Having now done so, the Court finds that
Plaintiff has failed to state any colorable claim against the only named Defendant in this
lawsuit, and this case should therefore be DISMISSED without prejudice.
A. Standard of Review
When screening a complaint under 28 U.S.C. § 1915(e), the Court must accept all
factual allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60
(11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent

2

standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Id. Still, § 1915(e)(2)(B) requires a district court to dismiss the complaint of a party
proceeding in forma pauperis whenever the court determines the complaint is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
damages from a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B)(i)-(iii).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The
Court may dismiss claims that are based on “indisputably meritless legal” theories and
“claims whose factual contentions are clearly baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not include “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The factual allegations in a complaint “must be enough to raise a right to
relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally
cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In
other words, the complaint must allege enough facts “to raise a reasonable expectation
that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or a
3

statute of the United States; and (2) the act or omission was committed by a person acting
under color of state law. Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.
1995).

If a litigant cannot satisfy these requirements or fails to provide factual

allegations in support of his claim or claims, the complaint is subject to dismissal. See
Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
B. Factual Allegations and Plaintiff’s Claims
According to the Complaint, Plaintiff is the “President/CEO/Inventor of Rabbi
Entreprenurs [sic] of America, LLC.”

(Compl. 5, ECF No. 1.)

Among Plaintiff’s

inventions is a design for a toothbrush system he calls the “R2K Diamondback
Toothbrush Collection.” Id. Plaintiff contends Defendant Proctor and Gamble “violated
[his] constitutional rights when they illegally cloned [Plaintiff’s] product” by creating a
toothbrush called the “Oral B Deep Sweep brush.” Id. Plaintiff contends the “Deep
Sweep” product is a “direct replica” of Plaintiff’s “R2K Diamondback single head
toothbrush collection.”

Id.

Plaintiff alleges his toothbrush collection had a patent

pending in 2015 and that it has “been published and digital copyrighted.” Id. Plaintiff
asserts he and his company “have lost millions of dollars in revenue” due to the alleged
infringement. Id. at 6.
To the extent Plaintiff contends Defendant is subject to § 1983 liability because its
alleged actions have violated Plaintiff’s constitutional rights, such claims must fail.
Private conduct is not actionable under § 1983. To state a claim for relief under that
statute, the alleged deprivation of a constitutional right must occur “under color of state
law.” See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 12764

77 (11th Cir. 2003). Defendant is a private company, and Plaintiff has alleged no facts
that suggest Defendant acted under color of state law. Accordingly, Plaintiff has failed to
state a § 1983 claim against Defendant, and any such claims must be DISMISSED
without prejudice.
To the extent Plaintiff is attempting to raise a direct patent infringement claim, his
claims are also subject to dismissal. (See, e.g., Compl. 3 (contending this lawsuit is for
“criminal & direct infringement”).) Plaintiff does not actually allege that he owns a
patent on his toothbrush system; instead, he alleges only that he has applied for a patent.
See id. at 5, 7. “There is no claim for patent infringement unless a patent has issued.”
Ogindo v. DeFleur, No. 07-CV-1322, 2008 WL 5105157, at *1 (N.D.N.Y. Dec. 1, 2008);
see also GAF Bldg. Materials Corp. v. Elk Corp. of Dallas, 90 F.3d 479, 482 (Fed. Cir.
1996) (holding there was no justiciable case or controversy where the patent had not
issued before the case was filed); Muskegon Piston Ring Co. v. Olsen, 307 F.2d 85, 89
(6th Cir. 1962) (holding plaintiff “could have no right of action in federal court . . . for
damages by virtue of his application for a patent until a patent was issued to him and no
damages would accrue to him prior to the issuance of a patent”). Because Plaintiff has
not alleged that the patent ever issued for his R2K toothbrush system, his claims for
direct patent infringement are properly DISMISSED without prejudice. See Ogindo,
2008 WL 5105157, at *1 (finding patent infringement claim was properly dismissed
where plaintiff had filed and received a provisional patent application but conceded that
the patent had never been issued).

5

III.

Conclusion

For the foregoing reasons, and because the statute of limitations would not appear
to bar their refiling, Plaintiff’s claims as alleged in his Complaint must be DISMISSED
without prejudice. Plaintiff’s motion to appoint counsel (ECF No. 5) is DENIED, and
Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED for purposes
of this dismissal only.
SO ORDERED, this 4th day of April, 2017.

S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT SENIOR JUDGE

6