UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

TERRY M. HOWLEY,

CASE NO. 08-CV-13976

Plaintiff,

DISTRICT JUDGE THOMAS LUDINGTON

v. MAGISTRATE JUDGE CHARLES BINDER

UNITED STATES PATENT AND

TRADEMARK OFFICE;

JOHN McCULLOCH & ASSOC.;

KURT C. ROWAN, Patent Examiner;

PETER M. POON, Supervisor Patent Examiner;

JOHN W. DUDAS, Director of USPTO;

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

PURSUANT TO 28 U.S.C. § 1915e(2)(B)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that the case be sua sponte

DISMISSED because the complaint fails to state a claim upon which relief can be given.

II. REPORT

A. Introduction

On September 15, 2008, Plaintiff Terry Howley filed this pro se civil action seeking 50

million dollars in damages from a Michigan law firm, the United States Patent and Trademark

Office (“PTO”), the director of the PTO, and two PTO examiners. On October 17, 2008,

Plaintiff’s application to proceed without prepayment of fees was granted pursuant to the in forma

pauperis statute. 28 U.S.C. § 1915(a)(1). The case was referred to the undersigned magistrate
2

judge for pretrial proceedings. (Dkt. 4.) After screening the pro se complaint pursuant to 28

U.S.C. § 1915e(2)(B), I find that the case is ready for Report and Recommendation.

B. Governing Law

In enacting the original in forma pauperis (“IFP”) 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, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992) (quoting Neitzke v.

Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)). Therefore, Congress

enacted a screening procedure, see 28 U.S.C. § 1915(e)(2)(B), which requires that the court review

all complaints where the plaintiff is proceeding IFP and sua sponte dismiss a case before service

of process if it determines that the action is frivolous or malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.

When screening a complaint where a plaintiff is proceeding without the assistance of counsel, the

court is required to liberally construe the document and hold it to a less stringent standard than a

similar pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L.

Ed. 2d 652 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). 

Rule 8(a) sets forth the basic federal pleading requirement that a complaint “shall contain

. . . a short and plain statement of the claim showing that the pleader is entitled to relief.” FED.R.

CIV. P. 8(a). “Rule 8 requires only that the complaint give the defendant fair notice of the claim

and its supporting facts.” E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001).

Despite this relatively low threshold, a complaint must nevertheless contain more than legal labels,

conclusions, and a recitation of the elements of a cause of action; it must also contain “enough
3

facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

___U.S.___, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). 

When a complaint involves multiple parties and multiple claims, each claim should make

it clear which defendant or defendants are alleged to have committed which wrong. If it is

“impossible to tell from the face of the complaint which defendants were accused of which

violations, what specific acts constituted violations, or when alleged violations occurred,” such a

complaint fails to state a claim upon which relief can be granted. Monroe v. Owens, 38 Fed. App’x

510, 515 (10th Cir. 2002) (citing Mountain View Pharmacy v. Abbott Labs, 630 F.2d 1383,

1386-87 (10th Cir. 1980)). In addition, when a pro se plaintiff “pleads a legal conclusion without

surrounding facts to support the conclusion stated in this claim, he fails to state a claim.” Grinter

v. Knight, 532 F.3d 567, 577 (6th Cir. 2008).

C. Discussion

In this case, the complaint never alleges that any specific wrong was committed by any

distinct defendant. Instead, the complaint only refers to “Defendant(s)” collectively. Plaintiff

alleges that, since he first applied for a patent in 2002, “Defendant(s)” have “fraudulently

prevent[ed] the granting of patent protection” for Plaintiff’s Fishing Rod Rest invention. (Compl.,

Dkt. 1 ¶ 7.) Plaintiff itemizes his claims as follows:

Defendant(s) were negligent and/or committed malpractice and breached fiduciary

duties to Plaintiff in the following regard:

(a) By failing to ISSUE Plaintiff’s patent as originally filed in said legal matter;

(b) By representing to the Plaintiff that no conflict of interest or prior business

relationship existed between Defendant(s) and multiple parties to suit

pertaining to legal matter;

(c) By holding themselves out as an unbiased fiduciary without any conflict of

interest;
1

There are two ways this Court can obtain jurisdiction over a case or controversy; first, the United States

Code provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This statute confers on the federal district

courts what is known as “federal question jurisdiction.” The other type of original federal district court jurisdiction

is diversity jurisdiction. Pursuant to 28 U.S.C. § 1332, diversity jurisdiction arises when the matter is between

citizens of different states and the amount in controversy exceeds $75,000. 

4

(d) By failing to provide Plaintiff with the minimum standard of care;

(e) By violating multiple procedures of law and in failing to notify Plaintiff of

ALL documentation, approvals concerning the granting, publication and

issuance of patent.

(Compl., Dkt. 1 ¶ 6 (emphasis in original).)

I suggest that the complaint be sua sponte dismissed for failure to state a claim because

Plaintiff has not alleged that any specific defendant committed any specific wrongful act.

Furthermore, I suggest that the complaint is also subject to sua sponte dismissal because the claims

consist of nothing more than legal conclusions without surrounding facts to support the

conclusions.

In addition to the reasons in support of dismissal already stated, and considering that the

vast majority of Plaintiff’s complaint appears to relate to attorney malpractice, I further suggest

that, to the extent Plaintiff is seeking to sue Defendant John McCulloch and Associates, the claim

is subject to sua sponte dismissal because this Court has no jurisdiction over claims that do not

raise a federal question and both parties are residents of the same state.1

 Jurisdiction is always

appropriate for the courts to consider, see Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604,

606-07 (6th Cir. 1998), and I suggest that this Court does not have jurisdiction over a Michigan

plaintiff’s malpractice claims against a Michigan law firm. Finally, to the extent Plaintiff is

dissatisfied with the decisions of the PTO, this Court is not the appropriate forum in which to raise

such claims. See 35 U.S.C. §§ 134, 145.

For all these reasons, I suggest that the complaint be sua sponte dismissed.
5

III. REVIEW

The parties to this action may object to and seek review of this Report and Recommendation

within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure

to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474

U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are

advised that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs.,

931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be

served upon this Magistrate Judge.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: October 22, 2008 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date, served by first class

mail on Terry M. Howley at 4106 E. Wilder Rd., #288, Bay City, MI, 48706, and served on District Judge Ludington

in the traditional manner.

Date: October 22, 2008 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder