Millen v. Wisconsin State Journal

Filing 9

ORDER that plaintiff is to inform the court by 11/6/09 whether he notified defendant of the alleged false statements and whether defendant ever responded to any communication from plaintiff. Signed by Chief Judge Barbara B. Crabb on 10/21/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------K EV IN MILLEN, ORDER Plaintiff, 09-cv-512-slc v. W IS C O N S IN STATE JOURNAL, Defendant. --------------------------------------------O n August 18, 2009, plaintiff Kevin Millen filed a proposed civil action for monetary relief in which he alleged that defendant Wisconsin State Journal published false information about him over the internet. On September 14, 2009, I dismissed his complaint because he failed to comply with Fed. R. Civ. P. 8. Dkt. #5. Plaintiff filed an amended complaint, w hich I dismissed on September 29, 2009, because it too failed to comply with Rule 8. Dkt. # 7. Now before the court is plaintiff's second amended complaint in which plaintiff

questio ns the purpose of Rule 8, cites Wisconsin law and attaches copies of his previously filed complaints and documents. Dkt. #8. Because plaintiff is a pro se litigant, I must read his complaint generously. Haines v. K erner, 404 U.S. 519, 521 (1972). However, because plaintiff is requesting leave to proceed 1

un der the in forma pauperis statute, his complaint must be dismissed if it is legally frivolous, m alicious, fails to state a claim upon which relief may be granted or asks for money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. §

1915 (e)(2)(B). Having reviewed plaintiff's second proposed amended complaint, I conclude that plaintiff has failed to correct the deficiencies that I identified. In the previous two orders, I informed plaintiff that under Wisconsin law, he must show that he gave defendant a reasonable opportunity to correct the allegedly false in fo rm atio n . Wis. Stat. § 895.05(2); Schultz v. Sykes, 248 Wis. 2d 746, 789-90, 638 N .W .2 d 604, 624 (Wis. Ct. App. 2001) (notice requirement condition precedent to filing lib el suit). Although plaintiff attached a copy of a letter that he wrote to defendant on July 2 6 , 2009 to his first amended complaint, I found that it failed to meet the requirements of § 895.05(2) because it did not identify the alleged false statements or the facts that plaintiff asserts are true. Further, plaintiff failed to discuss whether defendant ever responded to the le t te r . In the second proposed amended complaint, plaintiff does not mention the notice requ irem ent or answer the questions posed in the court's September 29 order. Therefore, I will give him one final opportunity to inform the court of the following: · W hether plaintiff identified for defendant the alleged false statements con tained in the article;

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W hether plaintiff informed defendant of the facts that he asserts are tru e; and W hether defendant ever responded to plaintiff's July 29, 2009 letter or any other correspondence from plaintiff.

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If plaintiff fails to respond to these questions by November 6, 2009, or if I determine that he has not made the requisite showing under § 895.05(2), I will dismiss his case with prejudice an d direct the clerk of court to close the file.

OR DER IT IS ORDERED that plaintiff Kevin Millen has until November 6, 2009 within w h ich to inform the court whether he notified defendant of the alleged false statements and th e facts that he asserts are true and whether defendant ever responded to any com m un ic a tio n from plaintiff. If by November 6, 2009, plaintiff fails to respond to this order or make the requisite showing, I will dismiss the complaint with prejudice for failure to state a claim upon which relief may be granted. E n tered this 21 s t day of October, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _ B AR B AR A B. CRABB D istrict Judge

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