UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

BERNARD JOHNSON, Jr., :

:

 Plaintiff, : No. 4:CV-06-0317

:

vs. : (Complaint filed 02/13/06)

:

PETE SHELLUM, : (Judge Muir)

:

Defendant : 

ORDER

March 1, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 13, 2006, Plaintiff Bernard Johnson, Jr.,

initiated this action by filing a complaint. Johnson is an

inmate at the Federal Correctional Institution at Allenwood, in

White Deer, Pennsylvania. The sole defendant named in the

complaint is Pete Shellum, whom Johnson identifies as “a private

citizen ... employed as a newspaper colomnist [sic] at the

Harrisburg Patriot News newspaper, ....” (Document 1, p. 2) The

core of Johnson’s complaint is the allegation that

Defendant Pete Shellum abused his First Amendment right of

freedom of speech to slander [Johnson] publicly by writing a

... newspaper article about [Johnson] on December 10, 2004,

and possibly another article in June 2005. Mr. Shellum’s

slander was responsible for causing [Johnson] irreparable

injury where [his] reputation has been destroyed, [his]

relationship with family and friends has been

severed/destroyed, and has caused [Johnson] to get into

numerous fights in prison ....

(Id.)

Johnson also filed on February 13, 2006, an application to

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1. Johnson expressly refers only to “slander.” However, because

libel applies where an allegedly injurious communication is

written, as is the case here, we will construe the complaint

liberally to encompass such a claim. 

2

proceed in forma pauperis. An administrative order authorizing

prison officials to deduct the filing fee from his inmate account

has been issued and we will grant Johnson’s application to

proceed in forma pauperis subject to the requirements of 28

U.S.C. §1915(b). We received the file in this case on February

23, 2006. 

Title 28 U.S.C. § 1915(e)(2) provides in relevant part as

follows:

Notwithstanding any filing fee, or any portion thereof, that

may have been paid, the court shall dismiss the case at any

time if the court determines that ... the action ... is

frivolous or malicious ... [or] fails to state a claim on

which relief may be granted.

28 U.S.C. § 1915A(e)(2)(A), (e)(2)(B).

The only potential causes of action raised in Johnson’s

complaint are slander or libel.1 Each is a Pennsylvania state

law claim which fails to raise any federal question. See City of

Rome v. Glanton, 958 F.Supp. 1026, 1034 (E.D.Pa. 1997)(Katz,

J.)(“For the libel and slander [claims], Pennsylvania law

applies.”). Our review of the complaint indicates that there is

no potential basis for federal jurisdiction, such as diversity of

citizenship.

Under these circumstances, a federal court should not

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exercise jurisdiction over the complaint. United Mine Workers v.

Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L.Ed.2d 218

(1966); Gomez v. Coughlin, 685 F.Supp. 1291, 1301 (S.D.N.Y.

1988)(dismissing plaintiff’s slander claim for lack of

jurisdiction). The Court of Appeals for the Third Circuit has

stated that 

the rule within this Circuit is that once all claims with an

independent basis of federal jurisdiction have been

dismissed the case no longer belongs in federal court. See

Lovell Mfg. Corp. v. Export-Import Bank of the United

States, 843 F.2d 725, 734 (3d Cir.1988).

Markowitz vs. Northeast Land Co., 906 F.2d 100, 106 (3d Cir.

1990). Because no claim with an independent basis for federal

jurisdiction has been pled in Johnson’s complaint, this case does

not belong in federal court.

We will dismiss Johnson’s complaint because it fails to

state a claim upon which relief may be granted in this court and

therefore is frivolous as a matter of law.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Johnson’s application to proceed in forma pauperis is

granted subject to the requirements of 28 U.S.C. §

1915(b).

2. Johnson’s complaint is dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(A) and (e)(2)(B) because it fails to state

a claim upon which relief may be granted. The

complaint is dismissed without prejudice to Johnson’s

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right to proceed on his claims in Pennsylvania state

court.

3. The Clerk of Court shall close this case.

4. Any appeal of this order will be deemed frivolous,

without probable cause, and not taken in good faith.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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