United States District Court, S.D. Illinois
August 12, 2005.
CHARLES W. HAMMONDS, Plaintiff,
CALVIN HAMMONDS, Defendant.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
This cause is before the Court on Plaintiff's motion to proceed
in forma pauperis (Doc. 2). A federal court may permit an
indigent party to proceed with a civil action without prepayment
of costs. 28 U.S.C. § 1915(a). Plaintiff's indigence
notwithstanding, the Court may deny leave to proceed in forma
pauperis and dismiss an action if it is clearly frivolous,
malicious, or fails to state a claim. 28 U.S.C. § 1915A. An
action is frivolous if "it lacks an arguable basis either in law
or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Upon careful review of the complaint and any supporting exhibits, the Court
finds this action to be frivolous and subject to summary dismissal.
Plaintiff, currently an inmate in the Madison County Jail,
brings this action for breach of contract against his brother.
Apparently Plaintiff loaned his brother approximately $1500, for
which Plaintiff now seeks reimbursement. Plaintiff asserts
jurisdiction under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. § 1346, 2671-2680. However, the complaint does not allege
that defendant Hammonds is an agent or employee of the United States; thus,
the FTCA does not provide a basis for federal jurisdiction. A more likely basis for jurisdiction is found under diversity
jurisdiction, which exists between citizens of different states,
where the matter in controversy exceeds the sum or value of
$75,000. 28 U.S.C. § 1332(a)(1). It is not clear from the
pleadings that this matter is between citizens of different
states Plaintiff is incarcerated in the Madison County Jail in
Edwardsville, Illinois, while Defendant is alleged to be the
owner of a business located at "117 East Elm Street;" no city or
state is provided. Regardless, the amount in controversy appears
to be only $1521.30 in compensatory damages, nowhere near the
$75,000 statutory requirement.
Therefore, the Court finds no basis for federal jurisdiction of
this matter, believing that this dispute is much better suited to
small claims court. Accordingly, leave to proceed in forma
pauperis is DENIED, and this action is DISMISSED WITH
PREJUDICE. Plaintiff is advised that the dismissal of this
action will count as one of his three allotted "strikes" under
the provisions of 28 U.S.C. § 1915(g).
Plaintiff is ADVISED that any appeal taken from this
dismissal would not be taken in good faith. See
28 U.S.C. § 1915(a)(3). He is further advised that should he file any appeal,
not only would he be required to pay the appellate filing and
docketing fee of $255, but the Court would also have to assess
and collect the district court filing fee of $250. See
28 U.S.C. § 1915(b).
IT IS SO ORDERED.
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