Miller v. Apple Inc.

Filing 4

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED THAT: (1) Plaintiff's complaint be DISMISSED with prejudice; and (2) The Court certify pursuant to 28 U.S.C. 1915(a) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Objections to R&R due by 8/30/2022. Signed by Magistrate Judge Karen L. Litkovitz on 8/15/2022. (kh) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:22-cv-00468-MRB-KLL Doc #: 4 Filed: 08/16/22 Page: 1 of 5 PAGEID #: 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY MILLER,
Plaintiff,

Case No. 1:22-cv-468
Barrett, J.
Litkovitz, M.J.

vs.
APPLE INC.,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff, a resident of Cincinnati, Ohio, has filed a pro se civil complaint against Apple
Inc. (Doc. 1-1). By separate Order, plaintiff has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
This matter is now before the Court for a sua sponte review of the complaint to determine
whether the complaint or any portion of it should be dismissed because it is frivolous, malicious,
fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant
who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.
§ 1915(e)(2)(B).
Screening of Complaint
A.

Legal Standard

In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the

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plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke, 490
U.S. at 328-29; see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action
has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action
has no arguable factual basis when the allegations are delusional or rise to the level of the
irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The
Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing
a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting
Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,
the complaint “must contain 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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well2

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pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
B.

Plaintiff’s Complaint

The complaint alleges that plaintiff is suing defendant Apple Inc. for violation of his
constitutional rights. The complaint states, verbatim, “There has been attacks on me that Apple
knows about that are keeping me from my Constitutional rights. I need to file to get support
from the court.” (Doc. 1-2 at PAGEID#: 10). As relief, plaintiff seeks the following: “Refund
an[d] fix my devices, replace devices, [and] troubleshoot future problems[,] ask security and
other damages paid for by the company. Apple has the evidence and won’t replace it to me.”
(Doc. 1-2 at PAGEID#: 11)
C.

Resolution

Plaintiff’s complaint provides no factual content or context from which the Court may
reasonably infer that the defendant violated plaintiff’s constitutional rights. Iqbal, 556 U.S. at
678. Plaintiff’s allegations generally amount to legal conclusions that in themselves are
insufficient to give the defendant or the Court notice of the factual basis for plaintiff’s claims.

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Twombly, 550 U.S. at 555. Accordingly, the complaint fails to state a claim upon which relief
may be granted and should be dismissed under 28 U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s complaint be DISMISSED with prejudice.
2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).

Date: 8/15/2022
______________________________
Karen L. Litkovitz, Magistrate Judge
United States District Court

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Case: 1:22-cv-00468-MRB-KLL Doc #: 4 Filed: 08/16/22 Page: 5 of 5 PAGEID #: 27

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY MILLER,
Plaintiff,

Case No. 1:22-cv-468
Barrett, J.
Litkovitz, M.J.

vs.
APPLE INC.,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.

This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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