Opinion
Civil No. 9-49-P-S.
February 10, 2009
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff, an inmate at the Maine State Prison, Warren, Maine, seeks leave to proceed in forma pauperis. The Application to proceed in forma pauperis has been completed and is accompanied by a Certificate signed by an authorized individual from the Institution. The Certificate evidences that the applicant had $2.94 in his account as of January 26, 2009; that over the last six months the average deposits have been $35.25 and the average monthly balance has been $14.29.
The application is GRANTED, however, pursuant to 28 U.S.C. section 1915(b)(1), Plaintiff is required to pay the entire filing fee in this matter as funds become available. An initial partial filing fee is hereby ASSESSED in the amount of $7.05. In the event Plaintiff elects to proceed with this matter and so notifies the Court, the initial partial filing fee shall be forwarded by the institution as soon as funds are available. Subsequent payments of twenty percent (20%) of Plaintiff's prior monthly income shall be forwarded directly by the institution each time the amount in the inmate's account exceeds $10.00 until such time as the entire filing fee of $350.00 has been paid. Plaintiff is advised that, in the event he is released from incarceration prior to the filing fee of $350.00 being paid in full, he is still required to pay the entire filing fee, absent further order of the court relieving him of the obligation.
In addition, Plaintiff is hereby on notice that the Court may dismiss this action if it:
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(b). If the Court does dismiss the action under this section, Plaintiff will still be required to pay the filing fee in full.
Further, Plaintiff is hereby on notice that a prisoner with three in forma pauperis actions dismissed under section 1915(e) may not thereafter, absent "imminent danger of serious physical injury," file a new action without prepayment of the entire filing fee. 28 U.S.C. § 1915(g).
Plaintiff's claim is susceptible to dismissal as it may fail to state a claim over which this court would have jurisdiction. Anthony Machiavelli, an inmate at the Maine State Prison, has filed a complaint against Barber Foods Inc. and Does 1 through 20 because he bit into chicken and found plastic. Machiavelli indicates that Barber Foods Inc., who prepared the chicken, is a Maine corporation with corporate headquarters in Portland, Maine. He invokes 28 U.S.C. § 1343 but describes his cause of action as one for product liability. This appears to be a state law claim,see e.g., Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me. 1982), involving a plaintiff and defendants who are located in Maine. As currently pled there is no diversity jurisdictionand there is no federal question jurisdiction. I am unable to locate a single case involving a foreign substance in food that was brought in federal court for any reason other than diversity jurisdiction. See e.g., Hampton v. Gebhardt's Chili Powder Co., 294 F.2d 172, 173 (9th Cir. 1961); In re ConAgra Peanut Butter Products Liability Litigation, No. 1:07-MD-1845-TWT, MDL Docket No. 1845, 2008 WL 2132233, (N.D.Ga. May, 21, 2008).
Now therefore, Plaintiff shall notify the Court no later than March 10, 2009, whether he intends to incur the cost of the filing fee and proceed with this action, or whether he intends to forego this litigation at this time. If Plaintiff elects to proceed, the written notification shall clearly indicate that Plaintiff understands his obligation to pay the full $350 filing fee as funds are available, and that he nevertheless wishes to proceed with the action. Failure to fully comply with this Order will result in the issuance of a recommendation to dismiss the Complaint. A copy of this Order shall be forwarded to the Business Office of Maine State Prison, Warren, Maine, following Plaintiff's indication to the Court that he intends to go forward with this matter and incur the $350.00 cost of suit. SO ORDERED.