Love v. Jackson et al

Filing 7

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The complaint is DISMISSED for lack of subject matter jurisdiction. Any appeal from this matter would not be taken in good faith. Signed by Judge William C Griesbach on 09/30/2011. (cc: all counsel, Davonte Love and Milwaukee County Correctional Facility) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DAVONTE LOVE,
Plaintiff,
v.

Case No. 11-C-881

DONNELISHA JACKSON, et al.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Love, who is proceeding pro se, lodged a civil rights complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. Plaintiff is currently incarcerated at the
Milwaukee County Correctional Facility.
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner plaintiff is required to pay the statutory filing
fee of $350.00 for a federal lawsuit. If a prisoner does not have the money to pay the filing fee up
front, he or she can request leave to proceed in forma pauperis in order to pay the fee over time.
To proceed with an action in forma pauperis, the prisoner must complete a petition and affidavit
to proceed in forma pauperis and return it to the court with a certified copy of the prisoner's trust
account statement showing transactions for the prior six months. The court then assesses and, when
funds exist, collects from the plaintiff at the time the action is filed an initial partial filing fee of
twenty percent of the average monthly deposits to or the average monthly balance in the prisoner's
trust account for the six-month period immediately preceding the filing of the complaint.1
1

In no event will a prisoner be prohibited from bringing a civil action because he or she has
no assets and no means by which to pay the initial partial filing fee. 28 U.S.C. § 1915(b)(4).

In this case, the plaintiff has filed a certified copy of his prison trust account statement for
the six-month period immediately preceding the filing of his complaint. He also filed the required
affidavit of indigence. Upon review of the trust account statement and affidavit, I am satisfied that
plaintiff is unable to pay the statutory filing fee in this case. Leave to proceed in forma pauperis
therefore will be granted.
However, it is clear from the complaint that the Plaintiff has not stated a claim upon which
relief may be granted. Plaintiff asserts that the three named defendants have slandered his name.
Slander is a state law cause of action that cannot be brought in federal court unless the individuals
are from different states and the amount of damages exceeds $75,000. Neither of those conditions
are apparent here. Accordingly, the complaint is dismissed for lack of subject matter jurisdiction.
Nothing in this order prevents Plaintiff from filing a slander action in state court.
THEREFORE, IT IS ORDERED that plaintiff's request to proceed in forma pauperis is
GRANTED and the initial partial filing fee is WAIVED.
IT IS ORDERED that the administrator of the Milwaukee County Correctional Facility or
his designee shall collect from the plaintiff's prison trust account the balance of the filing fee by
collecting monthly payments from the plaintiff's prison trust account in an amount equal to twenty
percent of the preceding month's income credited to the prisoner's trust account and forwarding
payments to the clerk of the court each time the amount in the account exceeds $10.00 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.
IT IS FURTHER ORDERED that the clerk of court enter judgment accordingly.

2

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).
Dated this

30th

day of September, 2011.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

3