Stebbins v. Kirkpatrick
ORDER ADOPTING 4 REPORT AND RECOMMENDATIONS IN ITS ENTIRETY; denying 2 Motion for Leave to Proceed in forma pauperis, finding as moot 3 Motion for Preliminary Injunction. Further Plaintiff's claims are DISMISSED for failure to state a claim on which relief may be granted. Signed by Honorable P. K. Holmes, III on October 20, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DAVID A. STEBBINS
Case No. 3:11-CV-03042
FRED KIRKPATRICK, in his official capacity
as District Court Judge of Boone County, AR
Currently before the Court is the Report and Recommendations (Doc. 4) filed in this case on
June 16, 2011, by the Honorable James R. Marschewski, United States Magistrate for the Western
District of Arkansas. Also before the Court are Plaintiff’s Objections (Doc. 5) to the Report and
The court has reviewed this case and, being well and sufficiently advised, finds as follows:
Plaintiff’s objections offer neither law nor fact requiring departure from the Report and
Recommendation. Plaintiff argues that, first, that the Magistrate does not have jurisdiction and,
second, that 28 U.S.C. § 1915(e)(2)(B)(iii) only grants the court discretion to deny an in forma
pauperis application when a plaintiff “seeks monetary relief against a defendant who is immune from
such relief.” Plaintiff argues that he is seeking injunctive, and not monetary relief, and as such, his
case should not be subject to dismissal under that statute.
First, the Magistrate Judge had jurisdiction to submit to the undersigned a recommendation
for disposition of this case. 28 U.S.C. § 636(b)(1). This Court now conducts a de novo review of
those portions of the Magistrate’s Report to which Plaintiff specifically objects, and the Court “may
accept, reject, or modify, in whole or in part, the findings and recommendations made by the
magistrate judge.” Id. Second, claims may be dismissed under 28 U.S.C. § 1915(e)(2)(B) if the
action “is frivolous or malicious” or “fails to state a claim on which relief may be granted” in
addition to the situation set forth in the subsection cited by Plaintiff in his objections. The Magistrate
Judge rightly found that Plaintiff’s claims for injunctive relief were subject to dismissal as precluded
by the Federal Courts Improvement Act (“FCIA”). 42 U.S.C. § 1983. Plaintiff argues that his claim
should fall into one of the exceptions provided for in the FCIA, which allows for actions where “a
declaratory decree was violated or declaratory relief was unavailable.” Id. Plaintiff argues that
declaratory relief was not reasonably available to him because he already has a trial scheduled. The
Court is not persuaded by this argument. Plaintiff then argues that, in a sense, the Supreme Court
issued a declaratory decree in its opinion of Gideon v. Wainwright, 372 U.S. 335 (1963), in which
Plaintiff alleges the Supreme Court “declared that I have the right to be represented by counsel in
a criminal case.” (Doc. 5). Plaintiff then argues that the Gideon declaration has been violated. The
right to counsel, however, does not apply in cases, like the one from which Plaintiff’s claims arise,
in which there is no potential for incarceration. Argersinger v. Hamlin, 407 U.S. 25 (1972).
Furthermore, as recognized by the Magistrate Judge, Plaintiff has not shown that he has an
inadequate remedy at law or would be subject to a serious risk of irreparable harm.
The Court finds that the Report and Recommendation is proper and should be and hereby is
ADOPTED IN ITS ENTIRETY. Accordingly, for the reasons stated herein and in the Magistrate
Judge’s Report and Recommendations, Plaintiff’s Motion to Proceed IFP (Doc. 2) is DENIED and
Plaintiff’s claims are DISMISSED for failure to state a claim on which relief may be granted.
IT IS FURTHER ORDERED that any and all motions which remain pending are
DISMISSED AS MOOT.
IT IS SO ORDERED this 20th day of October, 2011.
/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE
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