United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOC. NO. 5)
J. Schwab United States District Judge.
se Plaintiff Jamie Cruz, Sr. (“Plaintiff”)
initiated the instant civil action on February 15, 2018, by
filing a Motion for Leave to Proceed In Forma
Pauperis. Doc. No. 1. Plaintiff brings this
action against the victim of the crimes for which he is
currently incarcerated, and her father, claiming that they
have defamed him on social media. Doc. No. 1-1
(“[M.S.] and [J.S.]have been putting things on [F]acebook
about me that wasn't [sic] true. I was arrested for
charges involving [M.S.]”). See also Criminal
Docket CP-25-CR-0002299-2016 (Court of Common Pleas of Erie
accordance with the Magistrate Judge's Act, 28 U.S.C.
§ 636(b)(1), and Rules 72.C and 72.D of the Local Rules
of Court, the case was referred to United States Magistrate
Judge Susan Paradise Baxter. On April 3, 2018, the Magistrate
Judge issued a Report and Recommendation
(“R&R”) recommending that Plaintiff be
granted leave to proceed in forma pauperis, but that
his complaint be dismissed as legally frivolous. Doc. No.
5. Plaintiff was served with the R&R and informed
that he had until April 20, 2018 to file written objections.
Plaintiff filed objections to the R&R and a Motion to
Amend his Complaint. Doc. No. 6.
objections are filed to a Magistrate Judge's Report and
Recommendation, the district court is required to make a
de novo determination about those portions of the
R&R to which objections were made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept,
reject, or modify the recommended disposition, as well as
receive further evidence or return the matter to the
magistrate judge with instructions. Upon an independent
review of the record, and consideration of the Magistrate
Judge's R&R, the Court will adopt the R&R with
modifications, will grant Plaintiff leave to proceed in
forma pauperis, and will dismiss his complaint as
frivolous, malicious, and for failure to state a claim
pursuant to 28 U.S.C. § 1915(e).
Motion to Proceed In Forma Pauperis
in forma pauperis statute, 28 U.S.C. § 1915, is
“designed to ensure that indigent litigants have
meaningful access to the federal courts.” Douris v.
Middletown Twp., 293 Fed. App'x 130, 131 (3d Cir.
2008) (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989). Congress recognized, however, that
litigants free from the burden of paying filing fees and
court costs, which are the assumed by the public, lack the
incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits. Neitzke, 490 U.S. at 324;
Deutsch v. United States, 67 F.3d 1080, 1084 (3d
when reviewing an in forma pauperis application, the
Court must make two determinations: (1) whether Plaintiff is
indigent; and (2) whether the proposed complaint is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks damages from a defendant who
is immune to suit. 28 U.S.C. § 1915(e)(2)(B).
Court may dismiss a complaint under Section 1915(e) as
frivolous if the court determines that “the contentions
are clearly baseless.” Deutsch, 67 F.3d at
1085. The Court may dismiss the action as malicious if it
finds that “the litigant's motivations at the time
of the filing of the lawsuit . . . is an attempt to vex,
injure, or harass the defendant.” Deutsch, 67
F.3d at 1086. The standard for dismissing a complaint for
failure to state a claim under Section 1915(e) is the same as
the standard used when ruling on a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), that is, the
Court must accept the factual allegations as true and
determine whether a plausible claim is stated. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Ashcroft v. Iqbal, 556 U.S. 662 92009); and
Connelly v. Lane Construction Corp., 809 F.3d 780
(3d Cir. 2016).
states a claim for defamation in his Complaint. Doc. No.
1-1. Under Pennsylvania law, a plaintiff must prove the
following seven elements to state a claim for defamation: (1)
the defamatory character of the communication; (2) its
publication by the defendant; (3) its application to the
plaintiff; (4) the understanding by the recipient of its
defamatory meaning; (5) the understanding by the recipient of
it as intended to be applied to the plaintiff; (6) special
harm resulting to the plaintiff from its publication; and (7)
abuse of a conditionally privileged occasion. 42 Pa.C.S.A.
purposes of the threshold determination whether a
communication is defamatory, it is not necessary for the
communication actually to have caused harm to a
plaintiff's reputation; defamatory character depends on
the general tendency of the words to have such an effect.
Id., citing Corabi v. Curtis Publishing Co., 273
A.2d 899 (Pa. 1971); Miller v. Hubbard, 207
A.2d 913 (Pa. Super. 1965); Restatement, supra, § 559
Comment d. However, it is not sufficient for the words to
merely embarrass or annoy the plaintiff. Beckman v.
Dunn, 419 A.2d 583 (Pa. Super. 1980). A communication is
defamatory if it tends to blacken a person's reputation
or expose that person to public hatred, contempt, or
ridicule, or injure the person in his business or profession.
Livingston v. Murray, 612 A.2d 443, 447 (Pa. Super.
1992), alloc. den., 617 A.2d 1275 (Pa. 1992). A
statement must also be provable as false to give rise to a
claim of defamation. See, e.g., Milkovich v.
Lorain Journal Co., 497 U.S. 1, 19-20 (1990).
Plaintiff fails ...