Opinion
No. 3-02-CV-1130-P
July 22, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is an unspecified civil action. Plaintiff John M. Ellis is a citizen of Texas. Defendants are the Attorney General of the United States and various named and unnamed FBI agents and informants.
Plaintiff alleges that this action is brought pursuant to 47 U.S.C. § 370. However, no such statute exists.
On May 30, 2002, plaintiff tendered an application for leave to proceed in forma pauperis and a one-page handwritten complaint. The information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case. The Court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were also sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on July 19, 2002. The Court now determines that this case is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
Plaintiff alleges that he has been "slandered and defamed" by various FBI agents and informants. According to plaintiff, some of the defendants have falsely implicated him in two murders, a rape, and a robbery that occurred more than 20 years ago. As a result, plaintiff and his family have been threatened and harassed by the FBI. Some of his friends have even been killed or are presumed dead. Plaintiff blames the defendants for the loss of his business and a variety of physical and mental problems he has experienced over the years. By this suit, plaintiff seeks unspecified damages to compensate him for his injuries.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional innature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiff sues the Attorney General and various other government agents and employees for slander and libel. The exclusive remedy for bringing such a claim against the federal government is the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-80. See Forrest City Machine Works, Inc. v. United States, 953 F.2d 1086, 1087 (6th Cir. 1992) (FTCA is exclusive remedy for torts committed by federal employees acting within the scope of their employment). The FTCA does not provide a remedy for claims arising out of defamation. 28 U.S.C. § 2680(h). See Rodriguez v. Sarabyn, 129 F.3d 760, 764 n. 3 (5th Cir. 1997) (excluding claims for slander and libel from FTCA waiver of immunity). Consequently, the Attorney General and FBI agents are immune from suit under this theory.
To the extent that plaintiff attempts to sue the FBI informants for slander and libel in their capacity as private citizens, federal subject matter jurisdiction is not proper. Such claims arise under state law, not federal law. Thus, the only basis for federal subject matter jurisdiction is diversity of citizenship. It is readily apparent from the complaint and interrogatory answers that plaintiff and all but one of the informants are citizens of Texas. ( Spears Quest. #2). Therefore, complete diversity does not exists. 28 U.S.C. § 1332(a); National Union Fire Insurance Co. v. Russell, 972 F.2d 628, 629 (5th Cir. 1992).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).