Stebbins v. Steen et al

Filing 4

JUDGMENT pursuant to the Opinion and Order 3 dismissing the case without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge Kristine G. Baker on 8/20/13. (kpr) (Additional attachment(s) added on 8/20/2013: # 1 Main Document - Correct) (jak).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DAVID STEBBINS
v.

PLAINTIFF
Case No. 4:12-cv-00704 KGB

JENNIE STEEN, CLERK OF BOONE
COUNTY CIRCUIT COURT; OFFICE OF
THE CLERK OF THE BOONE COUNTY
CIRCUIT COURT; OFFICE OF THE CLERK
OF THE ARKANSAS SUPREME COURT;
LESLIE STEEN, CLERK OF THE ARKANSAS
SUPREME COURT; and STATE OF ARKANSAS

DEFENDANTS

OPINION AND ORDER
Before the Court is plaintiff David Stebbins’s application to proceed in forma pauperis
(Dkt. No. 1) and his complaint with jury demand and motion for service by the United States
Marshals Service (Dkt. No. 2).
Based on Mr. Stebbins’s application to proceed in forma pauperis, he does not have the
funds to pay the filing fee. Accordingly, the application is granted (Dkt. No. 1).
The in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), requires that a lawsuit be
dismissed if it is (1) frivolous or malicious; (2) fails to state a claim upon which relief may be
granted; or (3) seeks monetary relief from a defendant who is immune from such relief. While
sua sponte dismissals are disfavored, “[s]ection 1915(e)(2)(B) applies to both prisoner and nonprisoner in forma pauperis cases.” Fletcher v. Jasper Police Dept., No. 1:09-CV-977, 2012 WL
5878807 (E.D. Tex. Oct. 18, 2012) (citing Newsome v. E.E.O.C., 301 F.3d 227, 231–33 (5th Cir.
2002)). See also Charles Alan Wright, et al., § 3970 Procedure for Appeals in Forma Pauperis,
16AA Fed. Prac. & Proc. Juris. (4th ed.) (“The PLRA also made some changes that affect non-

prisoner litigants. In particular, the PLRA amended what is now Section 1915(e)(2) concerning
the dismissal of a case. The current statutory language is mandatory (‘shall dismiss’) and adds to
the list of reasons for dismissal that the action fails to state a claim or that it seeks monetary
relief against a defendant who is immune from such relief.”); Bey v. Superior Protection, Inc.,
No. 4:08CV004191 JLH, 2009 WL 1058054 (E.D. Ark. Apr. 20, 2009) (adopting proposed
finding and recommendation of United States Magistrate Judge Henry L. Jones, Jr.) (“Although
many of the provisions in § 1915 specifically refer to and apply only to prison inmates, the
language in § 1915(e)(2) does not distinguish between prisoner and non-prisoner complaints.
Under this provision, the court must dismiss a complaint at any time it determines the claims
raised are legally frivolous or malicious, fail to state a claim for relief or seek monetary relief
against a defendant who is immune from damages.”); Zessin v. Nebraska Health & Human
Services, No. 807CV247, 2007 WL 2406967 (D. Neb. Aug. 20, 2007) (collecting cases in which
the Eighth Circuit and other courts have affirmed dismissals under 28 U.S.C. § 1915(e)(2)(B) in
non-prisoner cases) (“[I]t is clear that 28 U.S.C. § 1915(e)(2)(B) authorizes dismissal of
complaints filed in forma pauperis without regard to whether the plaintiff is a prisoner.”). A
claim is frivolous if it “describe[es] fantastic or delusion scenarios,” the factual contentions are
“clearly baseless,” or there is no rational basis in law. Neitzke v. Williams, 490 U.S. 319, 327-29
(1989).
The Court has reviewed Mr. Stebbins’s complaint and the authorities he cites. Mr.
Stebbins contends that, on April 1, 2012, he filed a complaint in Boone County, Arkansas,
Circuit Court, along with a motion for leave to proceed in forma pauperis. The case was
assigned to an Arkansas state court judge who, at the time Mr. Stebbins filed his court complaint
in this case, had not ruled on Mr. Stebbins’s state-court in forma pauperis request. Mr. Stebbins

2

represents that, to file a petition for writ of mandamus against the state court judge with the
Arkansas Supreme Court, he must obtain certified copies of the state court file but was refused
such copies by the Boone County Circuit Court Clerk’s office. Mr. Stebbins represents that the
Boone County Circuit Court Clerk’s office would not provide certified copies until his case was
filed and would not file his case until the state court judge ruled on the pending in forma
pauperis application. In his papers filed with this Court, Mr. Stebbins concedes the Boone
County Circuit Court Clerk’s office has informed him that his in forma pauperis motion was
given to the judge.
This Court takes judicial notice that on June 27, 2013, the state court judge to whom Mr.
Stebbins’s in forma pauperis motion was assigned entered an order denying his request to
proceed in forma pauperis, which order was docketed by the Boone County Circuit Court Clerk
on July 1, 2013.
In his current complaint, Mr. Stebbins requests prospective injunctive relief against the
named defendants and asks this Court to order defendants to “[e]ither file the Complaint and IFP
application without a ruling, like the federal courts do, or allow a mandamus petition to be filed
without [being] certified whenever the inability to obtain them is the subject of the mandamus
action in the first place” (Dkt. No. 2, at 4). Mr. Stebbins asks this Court to set a “standard policy
for the state judiciary” (Dkt. No. 2, at 4). Mr. Stebbins also requests more than three trillion
dollars in damages for every day that the state court does not file his complaint, starting April 1,
2012, and seeks punitive damages.
The Court determines that Mr. Stebbins’s complaint is frivolous and fails to state a claim
upon which relief can be granted.

Therefore, the Court dismisses the complaint without

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Rule 12(b)(6) of the Federal Rules of Civil

3

Procedure authorizes a pre-answer motion to dismiss for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P.12(b)(6). As the Eighth Circuit Court of Appeals recently
explained:
We review de novo the district court’s grant of a motion to dismiss, accepting as
true all factual allegations in the complaint and drawing all reasonable inferences
in favor of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co., 666 F.3d
1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P. 12(b)(6). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012).

Courts consider

“plausibility” by “‘draw[ing] on [our own] judicial experience and common sense,’” Whitney v.
Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S. at 679), and
“‘review[ing] the plausibility of the plaintiff’s claim as a whole, not the plausibility of each
individual allegation.’” Id. (quoting Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893,
896 n.4 (8th Cir. 2010)). The Eighth Circuit Court of Appeals has refused, at the pleading stage,
“to incorporate some general and formal level of evidentiary proof into the ‘plausibility’
requirement of Iqbal and Twombly.” Whitney, 700 F.3d at 1128. Nevertheless, the question “is
not whether [the pleader] might at some later stage be able to prove [facts alleged]; the question
is whether [it] has adequately asserted facts (as contrasted with naked legal conclusions) to
support [its] claims.” Id. at 1129.
In assessing “plausibility,” as required by the Supreme Court in Iqbal, the Eighth Circuit
Court of Appeals has explained that courts “consider[ ] only the materials that are ‘necessarily
embraced by the pleadings and exhibits attached to the complaint,’” Whitney, 700 F.3d at 1128
(quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)), and “‘materials

4

that are part of the public record or do not contradict the complaint.’” Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). A more complete list of the matters outside of the
pleadings that the court may consider, without converting a Rule 12(b)(6) motion to dismiss into
a Rule 56 motion for summary judgment, pursuant to Rule 12(d), includes “‘matters incorporated
by reference or integral to the claim, items subject to judicial notice, matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the complaint whose
authenticity is unquestioned.’” Miller, 688 F.3d at 931 n.3 (quoting Charles Alan Wright, et al.,
§ 1357, 5B Fed. Prac. & Proc. Juris. (3d ed. 2004)).
Mr. Stebbins does not identify in his complaint the cause of action under which he
intends to sue the named defendants; his complaint is deficient for this reason. Construing the
allegations in his complaint broadly, even if the Court views his complaint as one brought under
42 U.S.C. § 1983, the Court concludes the complaint should be dismissed.
A suit for damages under 42 U.S.C. § 1983 cannot be brought against the State or the
state defendants in their official capacity. See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 64, 70–71 (1989) (concluding state and its agencies are not “persons” within meaning of §
1983). Mr. Stebbins’s complaint seeks money damages and is silent as to the capacities in which
the defendants are being sued. If a § 1983 complaint is silent as to the capacity in which a
defendant is sued, the complaint is construed to include official-capacity claims only. See Baker
v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). Therefore, Mr. Stebbins’s complaint will be
construed to bring § 1983 claims against these defendants in their official capacities only.
Mr. Stebbins’s claims for money damages against the state defendants are without merit
because the United States Supreme Court holds that “a State is not a ‘person’ against whom a §

5

1983 claim for money damages might be asserted.” Lapides v. Bd. of Regents, 535 U.S. 613, 617
(2002); Will, 491 U.S. at 70–71 (holding that because the Eleventh Amendment immunizes the
states from suit, neither a state nor its officials acting in their official capacities are “persons”
under § 1983 when sued for damages). His § 1983 claims for money damages against the State
of Arkansas; the Arkansas Supreme Court, which is an arm of the State; and Office of the Clerk,
Leslie Steen, Clerk of the Arkansas Supreme Court in his official capacity are barred by
sovereign immunity. See Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).
Mr. Stebbins cites Ex parte Young, 209 U.S. 123 (1908), in support of his request for
prospective injunctive relief. Under Young, a party may sue a state officer for prospective relief
in order to stop an ongoing violation of a federal right. Injunctive relief remains generally
available under this doctrine against continuing violations of federal law. See Idaho v. Coeur d’
Alene Tribe of Idaho, 521 U.S. 261, 269 (1997). Because the Court takes judicial notice that on
June 27, 2013, the state court judge to whom Mr. Stebbins’s in forma pauperis motion was
assigned entered an order denying his request to proceed in forma pauperis in the state court
matter, which order was docketed by the Boone County Circuit Court Clerk on July 1, 2013, the
Court questions whether there is an ongoing violation of an alleged federal right based on these
facts.
Further, while it may be possible to sue a state official, in his or her official capacity, for
prospective injunctive relief without violating the Eleventh Amendment to the United States
Constitution, the same is not true of states or state agencies, so that claims against the state and
arms of the state should be dismissed, even if claims against state officials for prospective
injunctive relief can go forward. See Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th
Cir. 2007).

6

As for county defendants, Jennie Steen, Clerk of the Boone County Circuit Court, and the
Boone County Circuit Court Clerk, although Mr. Stebbins can bring suit under 42 U.S.C. § 1983
against the county defendants, “[a] claim against a county is sustainable only where a
constitutional violation has been committed pursuant to an official custom, policy, or practice.”
Luckert v. Dodge County, 684 F.3d 808, 820 (8th Cir. 2012). The “custom, policy, or practice
must be the moving force behind the violation. Moreover, the plaintiff must show not only that a
policy or custom existed, and that it was causally related to the plaintiff’s injury, but that the
policy itself was unconstitutional.” Id. Mr. Stebbins’s complaint is devoid of any allegation that
the alleged events about which he complains were the result of a lack of training or a custom,
policy, or practice of Boone County, Arkansas. Instead, he seeks a “standard policy for the state
judiciary. . . .” (Dkt. No. 2, at 4). Further, the Eighth Circuit has “consistently recognized a
general rule that, in order for [county] liability to attach, individual liability first must be found
on an underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.
2005).
Not only does Mr. Stebbins fail to state with specificity the cause of action he intends to
allege, he fails to identify with specificity the federal right he seeks to protect with his request for
prospective injunctive relief. Construing the allegations in his complaint broadly, if Mr. Stebbins
intends to allege a claim for violating his right to access the courts, his complaint fails to state a
claim upon which relief can be granted. This deficiency in his complaint requires that all of his
claims against all of the named defendants be dismissed.
While the right to access the courts exists, the Supreme Court and the Eighth Circuit
Court of Appeals have recognized that the constitutional basis for the right is “unsettled.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002); Scheeler v. City of St. Could, Minnesota, 402

7

F.3d 826, 830 (8th Cir. 2005); Harrison v. Springdale Water & Sewer Com’n, 780 F.2d 1422,
1427 n.7 (8th Cir. 1986). In some circumstances, our circuit has held that the right to access
derives from the First Amendment. See, e.g., Whisman v. Rinehart, 119 F.3d 1303, 1312-13 (8th
Cir. 1997); Harrison, 780 F.2d at 1427. In order to prevail on such a claim, Mr. Stebbins must
show that the defendants acted with some intentional motivation to restrict his access to the
courts. See Whisman, 119 F.3d at 1313 (stating that right-to-access cause of action requires
proof of government action “designed” to prevent access to the courts); Harrison, 780 F.2d at
1428 (holding that plaintiff sufficiently pled a valid right-to-access claim by alleging that city
employees retaliated against them for filing a lawsuit). Reviewing the complaint in the light
most favorable to Mr. Stebbins, the Court finds no factual allegations to indicate that the
defendants intentionally conspired to keep Mr. Stebbins out of court.
Mr. Stebbins seems to suggest that his right-to-access claim ought to be analyzed under
the Due Process Clause. Cf. County of Sacramento v. Lewis, 523 U.S. 833, 850-51 & n.9 (1998)
(noting that an official who has an actual opportunity to deliberate may be liable for a substantive
due process violation for undertaking actions that are deliberately indifferent to the constitutional
rights of another). The Supreme Court has noted that the right to access the courts finds support
in many parts of the Constitution, including the Due Process Clause. Harbury, 536 U.S.at 415
n.12. The overwhelming majority of cases involving a due process analysis, though, arise in the
prison-litigation context, as in situations where a prisoner’s access to counsel, mail, or the law
library has been curtailed. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (considering
an inmate’s access-to-courts claim under the Due Process Clause).
In those cases, to the extent an individual intends to assert a claim based on an alleged
denial of access to the courts, he must prove that he suffered an actual injury or prejudice as a

8

result of the alleged denial of access. See Johnson v. Hamilton, 452 F.3d 967, 973-74 (8th Cir.
2006). Mr. Stebbins’s conclusory claims that he was denied access to the courts must fail. For
his claim to survive, he must allege he suffered actual injury. Lewis v. Casey, 518 U.S. 343, 351
(1996) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). Actual injury may be shown where
a “nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 352–53. Mr.
Stebbins has not alleged or demonstrated that here.

Mr. Stebbins also has not alleged or

demonstrated the requisite conduct on the part of the named defendants to state a denial-ofaccess claim under the Due Process Clause upon which relief may be granted. See Scheeler, 402
F.3d at 831 (requiring a showing that, as a result of acts that “shocked the conscience,” the actor
was deliberately indifferent to a fundamental right held by plaintiff).
Accordingly, the case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The
complaint and all claims in this matter are dismissed without prejudice. Judgment will be
entered accordingly.
SO ORDERED this the 20th day of August, 2013.

______________________________
Kristine G. Baker
United States District Judge

9