Owens v. Deshields et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 39 Report and Recommendations; ORDER denying 35 Motion for Leave to Proceed in forma pauperis, ORDER Granting IFP, directing Clerk to assess filing fee and collect funds from Prison Account of Lance Owens. Signed by Honorable Jimm Larry Hendren on May 31, 2011. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LANCE MITCHELL OWENS
v.

PLAINTIFF
Civil No. 10-5034

BRENDA DeSHIELDS,
Benton County Circuit Court Clerk/Recorder;
and BONITA STUBBS, Administrative Assistant,
Benton County Circuit Court Clerk, in their
individual and official capacities

DEFENDANTS

O R D E R
Now on this 31st day of May, 2011, comes on for consideration
the Amended Report and Recommendation of the Magistrate Judge (Doc.
39), in this matter, and the plaintiff's objections thereto (Doc.
40).

The Court, being well and sufficiently advised, finds and

orders as follows:
1.

Plaintiff filed this lawsuit pro se and is proceeding in

forma pauperis (IFP).

He alleges that defendants violated his

constitutional rights when they refused to file a document entitled
"Transfer Statement/Deed of Transfer." He brings this action under
42 U.S.C. § 1983.
2.

On February 9, 2011, the Magistrate Judge issued her

Report and Recommendation (Doc. 23) (hereby referred to as the
"First Report and Recommendation") in which she recommended that
plaintiff's complaint be dismissed for failure to state a claim
upon which relief could be granted because:

*

plaintiff has failed to establish a equal protection
claim because he has not alleged any facts suggesting
that defendants gave differential treatment to persons
who were similarly situated to plaintiff but who were not
of his national origin;

*

plaintiff has failed to allege a claim for denial of
access to the courts because, while prisoners have a
fundamental right to access to the courts, that right of
access

only

applies

to

claims

challenging

a

prison

sentence or conditions of confinement and what plaintiff
had tried to file was a transfer statement seeking to
transfer property; and
*

plaintiff has failed to state a procedural due process
claim because he had adequate post deprivation remedies,
i.e., a writ of mandamus.

3.

On March 11, 2011, this Court adopted the First Report

and Recommendation in toto and dismissed plaintiff's complaint.
(See Doc. 33).
4.

Plaintiff filed a motion to appeal in forma pauperis.

(See Doc. 35).

Pursuant to 28 U.S.C. § 1915(a)(3), the IFP

statute, "[a]n appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good
faith."

5.

On April 25, 2011, the Magistrate Judge filed an Amended

Report and Recommendation1 in which she recommends that plaintiff's
motion for leave to appeal be denied because all of plaintiff's
claims are clearly frivolous and, as such, the appeal would not be
taken in good faith.
6.

Plaintiff

(See Doc. 39).
objects to

the Magistrate

Judge's

Amended

Report and Recommendation because he says that the defendants
failed to file his petition for writ of mandamus and such a failure
denied him of his right to access to the courts.

Plaintiff's

objection directly contradicts his own statements in his complaint
that his petition for writ of mandamus was filed with the state
court on or about April 30, 2009. Thus, plaintiff's objection will
be overruled.
IT IS THEREFORE ORDERED that the plaintiff's Objection (Doc.
40) is hereby OVERRULED.
IT IS FURTHER ORDERED that, for the reasons stated above, the
Amended Report and Recommendation of the Magistrate Judge is hereby
adopted in toto.
IT IS FURTHER ORDERED that, for the reasons stated in the
Amended Report and Recommendation, the Court hereby certifies that

1

The Magistrate Judge had entered an earlier Report and
Recommendation on April 6, 2011 (Doc. 37) to which plaintiff
objected. The Magistrate Judge noted in her Amended Report and
Recommendation filed on April 25, 2011 (Doc. 39) that the reason
for the amendment was because the Court was in error when it
stated that the claims asserted in the complaint were subject to
dismissal because defendants were immune from suit.

plaintiff's appeal may not be taken in forma pauperis because his
appeal is clearly frivolous and is not taken in good faith.
Therefore, plaintiff's Motion for Leave to Appeal in forma pauperis
(Doc. 39) is hereby DENIED.
IT IS FURTHER ORDERED that the Clerk is directed to collect
the $455 appellate filing fee pursuant to the terms of the Prison
Litigation Reform Act.
IT IS SO ORDERED.
/s/Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE