Kupsky v. Blintz et al

Filing 8

ORDER granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. The case is dismissed for failure to state a claim and this inmate has incurred a strike. (cc: all counsel and via US Mail to Ronald Kupsky and Warden) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONALD LEMA KUPSKY,
Plaintiff,
v.

Case No. 18-C-585

RAMELLE BLINTZ, DOOR COUNTY
ADVOCATE, and GANNETT COMPANY INC.,
Defendants.

SCREENING ORDER

The plaintiff, who is currently serving a state prison sentence at Waupun Correctional
Institution and representing himself, filed a complaint alleging that Defendants filed a false news
report about him. This matter comes before the court on Plaintiff’s motion for leave to proceed
without prepaying the full filing fee.
MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
Plaintiff is required to pay the $400.00 filing fee for this action, which includes the $350.00
statutory filing fee and a $50.00 administrative fee. See 28 U.S.C. § 1915(b)(1). If a prisoner does
not have the money to pay the filing fee, he can request leave to proceed without prepayment of the
full filing fee. In that case, the prisoner plaintiff proceeding in forma pauperis is required to pay the
full amount of the $350.00 statutory filing fee, not the $50.00 administrative fee. See 28 U.S.C.
§ 1915(b)(1). Plaintiff is required to file a certified copy of his prison trust account statement for
the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C.
§ 1915(a)(2), in order for an initial partial filing fee to be assessed. Despite direction from the Clerk,
Plaintiff has failed to submit a certified copy of his trust account. Nevertheless, Plaintiff’s uncertified

statements indicate that he is indigent. As such, the court waives the initial partial filing fee and
grants Plaintiff’s motion. 28 U.S.C. § 1915(b)(4).
SCREENING OF THE COMPLAINT
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim
is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504
U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997).
To state a cognizable claim under the federal notice pleading system, the plaintiff is required
to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain sufficient factual matter “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 court accepts the factual allegations as true and liberally construes them in the
plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint’s allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
ALLEGATIONS OF THE COMPLAINT
Plaintiff alleges Defendant Rammelle Blintz published a false news report about him in 2014
in the Door County Advocate, which Plaintiff alleges is owned by Gannett Company. ECF No. 1
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at 2. Plaintiff alleges he entered a not guilty plea to multiple felony charges, but Defendants reported
that he entered a plea of no contest. Plaintiff alleges he asked them to correct the report but it took
months for them to correct it. Plaintiff demands “$14 million” from Defendants, an apology
statement, the removal of any news report about him, and to prevent Defendants from being able to
report the news for three months, because that is how long it took them to respond.
THE COURT ’S ANALYSIS
The threshold issue the court must address is whether it has jurisdiction over the claim
Plaintiff has asserted. Subject matter jurisdiction cannot be waived and may be “raised sua sponte
by the court at any point in the proceedings.” Hawxhurst v. Pettibone Corp., 40 F.3d 175, 179 (7th
Cir. 1994). Federal courts are courts of limited jurisdiction, which means they can only hear and
decide the kinds of cases that the Constitution and Congress authorize them to hear. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Those cases include cases of diversity
jurisdiction, pursuant to 28 U.S.C. § 1332, or cases based on a federal law, pursuant to 28 U.S.C.
§ 1331.
Diversity jurisdiction exists when there is complete diversity of citizenship among the parties
to an action and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Complete
diversity of citizenship means that “none of the parties on either side of the litigation may be a citizen
of the state of which a party on the other side is a citizen.” Howell by Goerdt v. Tribune Entm’t Co.,
106 F.3d 215, 217 (7th Cir. 1997). Plaintiff has not pled diversity jurisdiction and there is no
indication from the pleadings that diversity jurisdiction is satisfied.
Nor has Plaintiff stated a federal claim. For a court to exercise federal question jurisdiction,
a well-pleaded complaint must establish “that federal law creates the cause of action or that plaintiff’s
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right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise
Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983). A federal court must
entertain a complaint seeking recovery under the Constitution or laws of the United States “unless
the alleged federal claim either ‘clearly appears to be immaterial and solely made for the purpose of
obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.’” Ricketts v.
Midwest Nat. Bank, 874 F.2d 1177, 1180 (7th Cir. 1989) (quoting Bell v. Hood, 327 U.S. 678,
681–82 (1946)). If a district court determines a complaint is undermined by either deficiency, “the
complaint must be dismissed for want of federal subject matter jurisdiction.” Ricketts, 874 F.2d at
1180.
Plaintiff has not alleged a violation of his Constitutional rights, nor has he alleged a violation
of any federal law. Plaintiff has not even referenced any federal law or the Constitution. Even with
the most liberal reading of his complaint, Plaintiff alleges a claim of defamation, which arises under
state law. This does not implicate federal law or the federal question doctrine, nor does this establish
jurisdiction.
Thus, I find that Plaintiff has failed to allege any basis for federal subject matter jurisdiction
and his claim must be dismissed. This plaintiff has provided no arguable basis for relief, having failed
to make any rational argument in law or fact to support his claims. See House v. Belford, 956 F.2d
711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd
sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.

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IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350 balance of the filing fee by collecting monthly payments
from the plaintiff’s prison trust account in an amount equal to 20% of the preceding month’s income
credited to the prisoner’s trust account and forwarding payments to the Clerk of Court each time the
amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall
be clearly identified by the case name and number assigned to this action. If the plaintiff is
transferred to another institution, the transferring institution shall forward a copy of this Order along
with plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
Dated at Green Bay, Wisconsin this 24th

day of April, 2018.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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This order and the judgment to follow are final. The plaintiff may appeal this court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30 days of the entry of
judgment. See Fed. R. App. P. 3, 4. This court may extend this deadline if a party timely requests an
extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline. See
Fed. R. App. P. 4(a)(5)(A). If the plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If the plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If the plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain circumstances, a party may ask this court to alter or amend its judgment under Federal Rule
of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment.
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend these deadlines. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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