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Tango Cash

Tango Cash

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Published by Eriq Gardner
@eriqgardner
@eriqgardner

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Published by: Eriq Gardner on Mar 26, 2014
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03/26/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXASAUSTIN DIVISIONGABRIEL SEALE§§V.§A-14-CV-0073 SS§WARNER BROS. ENTERTAINMENT §ORDER ON IN FORMA PAUPERIS STATUS ANDREPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:THE HONORABLE SAM SPARKSUNITED STATES DISTRICT JUDGEThe Magistrate Court submits this Report and Recommendation to the United States DistrictCourt pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of theUnited States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.Before the Court are: Plaintiff Gabriel Seale’s (“Seale”) Application to Proceed In FormaPauperis and Financial Affidavit in Support (Dkt. # 1). Because Seale is requesting permission to proceed in forma pauperis, this Court must review and make a recommendation on the merits oRussell’s claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Seale’s financial affidavit and has determined he is indigent andshould be granted leave to proceed in forma pauperis. Accordingly, the Court hereby
GRANTS
Seale’s request for in forma pauperis status. The Clerk of the Court shall file his complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigentstatus is granted subject to a later determination the action should be dismissed if the allegation of  poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Seale
Case 1:14-cv-00073-SS Document 2 Filed 03/24/14 Page 1 of 6
 
is further advised, although he has been granted leave to proceed in forma pauperis, a Court may,in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases.
 Moore v. McDonald 
, 30 F.3d 616, 621 (5th Cir. 1994).As stated below, this Court has made a § 1915(e) review of the claims made in this complaintand is recommending Seale’s claims be dismissed under 28 U.S.C. § 1915(e). Therefore,
serviceupon Defendant should be withheld
 pending the District Court’s review of the recommendationsmade in this report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendant.
II. REVIEW OF THE MERITS OF THE CLAIMSA.Standard of Review
A district court “shall dismiss” a case brought in forma pauperis at any time if the courtdetermines the action “(I) is frivolous or malicious; (ii) fails to state a claim on which relief may begranted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28U.S.C. § 1915(e)(2). A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.”
 Neitzke v. Williams,
 490 U.S. 319, 325 (1989);
Siglar v. Hightower,
 112 F.3d 191, 193 (5th Cir.1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legaltheory.”
 Id.
, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantasticor delusional scenarios.”
 Id.
, 490 U.S. at 327-28. A complaint duplicating claims asserted in anearlier case may be deemed malicious and subject to summary dismissal.
 Pittman v. Moore
, 980F.2d 994, 995 (5th Cir. 1993);
Wilson v. Lynaugh
, 878 F.2d 846, 849 (5th Cir. 1989).2
Case 1:14-cv-00073-SS Document 2 Filed 03/24/14 Page 2 of 6
 
B.Analysis
In Seale’s Complaint, he alleges that Warner Brothers Entertainment, Inc. (“Defendant”)defamed him by distributing the 1989 film
Tango & Cash.
 Specifically, Seale alleges that he saw
Tango & Cash
 in 1990 with a group of friends in Modesto, California, when he was 16 years-old. Seale complains that Kurt Russell’s character in the film, Gabriel Cash, harmed Seale’s reputation because he appeared “dressed as a woman with lipstick, a woman’s miniskirt, and woman’s highheel shoes.” Complaint at p. 1. Seale alleges that his friends teased him because he shares the samefirst name as the character in the film. Seale seeks $250,000 from Defendant for the allegeddefamation, libel and slander. “Federal courts are courts of limited jurisdiction.”
 Kokkonen v. Guardian Life Ins. Co. of  America
, 511 U.S. 375, 377 (1994). Thus, federal courts possess only that power authorized byConstitution and statute, which is not to be expanded by judicial decree.
 Id.
 A federal court hassubject matter jurisdiction over civil cases “arising under the Constitution, laws, or treaties of theUnited States,” or over civil cases in which the amount in controversy exceeds $75,000, exclusiveof interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C.§§ 1331, 1332. Because Seale has not alleged any federal causes of action, he is attempting toinvoke this court’s diversity jurisdiction. When, as in this case, subject matter jurisdiction is basedon diversity, federal courts apply the substantive law of the forum state, in this case, Texas.
 Erie R.R. Co. v. Tompkins
, 304 U.S. 64 (1938);
 Holt v. State Farm Fire & Cas. Co.
, 627 F.3d 188, 191(5th Cir. 2010).Under Texas law, to maintain a cause of action for defamation, the plaintiff must prove thatthe defendant: (1) published a statement; (2) that was defamatory
concerning the plaintiff 
; (3) while3
Case 1:14-cv-00073-SS Document 2 Filed 03/24/14 Page 3 of 6

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