Holt v. Howard

Filing 19

ORDER granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim. Amended complaint due by 1/4/13. Signed by Judge D. P. Marshall Jr. on 12/4/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

GREGORY HOLT,
ADC#129616

v.

PLAINTIFF
No. 4:12-cv-510-DPM

MICHELLE HOWARD,
Public Information Officer,
Little Rock Police Department,
in her official capacity only

DEFENDANT

ORDER
Howard's motion to dismiss, Document No. 14, is granted in part and
denied in part.
Holt has pleaded enough facts to nudge his equal-protection claim
"across the line from conceivable to plausible .... " Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Everyone agrees that he is a prisoner in
ADC' s custody whose FOIA request was denied pursuant to Arkansas Code
Annotated§ 25-19-105(a)(l)(B)(i) because it was Holt's request instead of his
lawyer's. Whether the General Assembly's limiting incarcerated citizens'

FOIA rights based on the lack of legal counsel is constitutional is a question
for later in the case. Holt's equal-protection claim is neither implausible nor
frivolous.
Holt's access-to-courts claim, however, stumbles at the threshold. As
Howard points out, Holt has alleged no particularized injury-in-fact. This
claim is therefore dismissed without prejudice. Klinger v. Dept. of Corrections,
107 F.3d 609, 616-17 (8th Cir. 1997).
Hoi t' s request for temporary injunctive relief, which is embedded in his
complaint, is not properly before the Court. Local Rule 7.2(e). Given the
seeming lack of imminent irreparable harm, it is a stretch, as Howard points
out. But the Court will not address a TRO or a preliminary injunction unless
and until Holt moves for one with supporting papers. The request for a
permanent injunction stands. That relief might be available if the challenged
amendment is unconstitutional.
The Court would benefit from an amended complaint drafted by
counsel. Whether this case should proceed as a proposed class action needs,
in particular, to be evaluated by counsel. Amended complaint due by
4 January 2013. Howard need not answer until after the amended complaint

is filed. The Court, however, encourages her to answer (preserving all her
defenses, of course) rather than filing a third motion to dismiss. It is time for
the issues in this case to be joined in the pleadings and to move things
forward.
So Ordered.

D.P. Marshall Jr. {I
United States District Judge

1

-3-

~M J.DI~