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Ferguson v. Turner

United States District Court, D. Massachusetts

December 16, 2014

DUNCAN FERGUSON, Plaintiff,
v.
CHERYL TURNER, Defendant.

MEMORANDUM AND ORDER

GEORGE A. O'TOOLE, Jr., District Judge.

On November 14, 2014, Plaintiff Duncan Ferguson ("Ferguson"), a prisoner currently incarcerated at the Old Colony Correctional Center ("OCCC"), filed a Complaint against Cheryl Turner, a resident of Bridgton, Maine. According to Ferguson's Complaint, on April 29, 2014, Turner telephoned OCCC officials and falsely stated that Ferguson initiated unwanted communications with her. Because of this, Ferguson alleges that he was moved from minimum to medium security for mental evaluation. After five days, he was returned to minimum security, but his prison job as senior maintenance technician was given to another inmate in Ferguson's absence. Ferguson contends that Turner again made false statements about Ferguson on June 30, 2014, when Turner filed an application for a protective order from the Portland District Court in Maine. Plaintiff alleges diversity of citizenship as the basis for this court's subject matter jurisdiction over the dispute and seeks $175, 000 in compensatory and punitive damages.

Along with the Complaint, Ferguson filed a Motion for Leave to Proceed in forma pauperis (Docket No. 2) accompanied by a copy of his prison account statement and a motion for appointment of counsel (Docket No. 3).

DISCUSSION

I. The Motion for Leave to Proceed In Forma Pauperis

Upon review of Ferguson's financial disclosures in his in forma pauperis motion and his prison account statement, this Court will ALLOW his Motion for Leave to Proceed in forma pauperis (Docket No. 2). Nevertheless, because Ferguson is a prisoner as defined by 28 U.S.C. § 1915(h), he is obligated to make payments toward the filing fee pursuant to 28 U.S.C. § 1915(b).

In light of this, it is hereby Ordered that:

A. Plaintiff Ferguson is assessed an initial partial filing fee of $54.92, pursuant to 28 U.S.C. § 1915(b)(1)(A); and
B. The remainder of the fee $295.08 is to be assessed and collected in accordance with 28 U.S.C. § 1915(b)(2).

II. The Complaint is Subject to Screening

Ferguson's Complaint is subject to the provisions of the Prison Litigation Reform Act 1995 ("PLRA"), Title VIII of Pub. L. 104-134, 110 Stat. 1321-1375 (1996). The PLRA contains provisions which grant courts the authority to screen and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in forma pauperis ). Section 1915 authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action lacks an arguable basis either in law or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §1915(e)(2). In forma pauperis complaints may be dismissed sua sponte and without notice under § 1915 if the claim is based on an indisputably meritless legal theory or factual allegations that are clearly baseless. Id .; Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

In conducting a preliminary review, the Court liberally construes the Complaint because Ferguson is proceeding pro se. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000).

III. Discussion

Ferguson brings this suit for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and invasion of privacy. To establish a claim for defamation under Massachusetts law, Ferguson must establish defendant Turner published a false statement about him to a third party that caused him economic loss or is actionable without ...


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