Urban v. Sells et al

Filing 5

ORDER Accepting 4 Report and Recommendation: Plaintiff's Complaint shall be dismissed with prejudice: See text of Order for further information. Signed by Senior Judge Donald E O'Brien on 03/18/14. (Copy w/NEF mailed to pro se Plaintiff: Copy to CR Financial) (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAMES URBAN,
Plaintiff,

No. 13-CV-4096-DEO

vs.
JOHN SELLS, CHAD MORROW, AMY
OETKEN, DARIN RAYMOND, GAYLE
VOGEL, JAMES BEEGHLY,
ANURADHA VAITHESWARAN, JAMES
SCOTT AND BILLY OYADARE,

ORDER ON REPORT AND
RECOMMENDATION

Defendants.
____________________
Before the Court and on file at Docket No. 4 is the
Report and Recommendation (“R&R”) issued by Magistrate Judge
Leonard T. Strand concerning the pro se Complaint filed by
Plaintiff James Urban.

In his Report and Recommendation,

Magistrate Strand recommends that Mr. Urban’s Complaint be
dismissed as frivolous.

Mr. Urban has not filed an objection

to the Magistrate’s R&R.
I.

BACKGROUND
Mr. Urban has a long history before this Court.

August 1, 2011, Mr. Urban filed case 11-CV-4068-DEO.
Complaint, Mr. Urban stated that:
I’m suing John Sells and Chad Morrow and
the Department of Natural Resources for
misusing Iowa Laws. They say a person may

On

In that

not possess the fur of a fur - bearing
animal taken from the wild, such as a
racoon or badger, without a license. ...
There is no license to possess fur bearing animals....
Here in Iowa we do
have laws that says a person cannot poach
animals or have possession of poached
animals.
11-CV-4068, Docket No. 1.
On November 15, 2011, Mr. Urban filed an amended pleading
which stated that:
I’m suing the Dept. Of Natural Resources
and Chad Morrow and John Sells while acting
in their official capacity or under color
of legal authority for an agency of the
United States. ... For being put in jail
twice in the same case over Christmas
holidays or a period of 8 ½ months in Jail
while misusing Iowa laws.
There is no
license to posses fur-bearing animals that
are lawfully taken.... I believe the DNR
knows the only time a person is given a
fine like this is when a fur-bearing animal
has been poached or if a person is
possessing a poached animal.
11-CV-4068, Docket No. 7.
On December 19, 2011, Magistrate Zoss entered an Order
dismissing Mr. Urban’s Complaint.

11-CV-4068, Docket No. 19.

According to his ruling:
[t]he defendants assert that the complaint
(1) fails to plead any cause of action that
invokes federal jurisdiction, (2) fails to
state a claim upon which relief can be
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granted, and (3) is barred by their
immunity under the Eleventh Amendment...
From the facts pled, it does not appear
that there is any other possible basis for
jurisdiction
in
federal
court.
Accordingly,
the
motions
to
dismiss
pursuant to Rule 12(b)(1) (Doc. Nos. 3, 8,
and 12) are granted.
In any event, the
plaintiff has failed completely to allege
facts “above the speculative level” to
support a cognizable legal theory for a
valid
claim
against
the
defendants
(Parkhurst, 569 F.3d at 865), nor has he
alleged a basis for circumventing the
defendants’ immunity under the Eleventh
Amendment (see Skelton v. Henry, 390 F.3d
614, 617 (8th Cir. 2004) (the Eleventh
Amendment bars the award of any retroactive
relief for violations of federal law that
would require payment of funds from a state
treasury)).
For these reasons, even if
this court did have jurisdiction, the
complaint would be dismissed under Rule
12(b)(6).”
11-CV-4068, Docket No. 19.
Shortly before the Order dismissing his first pro se
Complaint, Mr. Urban filed case number 11-CV-4107-DEO on
December 14, 2011.

In that second case Mr. Urban alleged

that:
[the Defendants] are misusing Iowa Laws.
None of these laws you charged me with
applies to trapping non-game animals.
There is no license to trap non-game
animals.
And
those
racoons,
[an]
accident[al] catch is a accident[al] catch.
If the DNR would not of been shooting those
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fur bearing animals they could be let go.
... I'm also filing this civil suit because
when a person fights the Iowa Dept. Of
Natural Resources, they do not get a fair
trial.
A person gets convicted of laws
that do not exist...
11-CV-4107, Docket No. 1. Mr. Urban went on to articulate the
ways in which he felt he did not get a fair trial in state
court.

In 11-CV-4107, Mr. Urban sued the Iowa Department of

Natural Resources and six individuals, including four of the
five defendants in the above captioned case. He again alleged
that the defendants were "misusing Iowa laws" in connection
with Urban's trapping activities.

Among other things, he

stated that "a [sic] accidental catch is a [sic] accidental
catch."

Id.

On November 27, 2012, this Court adopted a Report and
Recommendation from Judge Zoss dismissing the case.
4107, Docket No. 28.

11-CV-

The dismissal was based on both (a)

Urban's improper attempt to re-litigate issues decided against
him

in

case

number

11-CV-4068

and

(b)

the

absolute

prosecutorial immunity that applied to two of the defendants.
11-CV-4107, Docket No.’s 16 and 28.
Shortly before 11-CV-4107 was dismissed, Mr. Urban filed
another case, 12-CV-4075-DEO.

After that case was filed, Mr.
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Urban filed several Motions to Amend his Complaint along with
other pro se documents.

(For example, Mr. Urban filed a

"Motion to Dismiss Defendants' [sic] Judgement for Excess of
Jurisdiction" 12-CV-4075, Docket No. 17.

Judge Strand denied

that motion, stating "[the Motion] appears to consist of no
more than a random list of quotation fragments lifted from
court cases.”

12-CV-4075, Docket No. 24.

Mr. Urban then

refiled the same Motion and Judge Strand denied it a second
time.)

Judge Strand eventually allowed Mr. Urban to file an

Amended Complaint.

12-CV-4075, Docket No. 25.

(During the

pendency of 12-CV-4075, Judge Strand prohibited Mr. Urban from
filing any more Amended Complaints.)

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On September 9, 2013,

Mr. Urban filed another case, 13-CV-4050-DEO, while
12-CV-4075 was pending. In 13-CV-4050, Mr. Urban filed an
application to proceed in forma pauperis. Judge Strand denied
the Motion to Proceed in forma pauperis and dismissed the
case, stating that the issues in the new case were identical
to the issues in case, 12-CV-4075. See 13-CV-4050, Docket No.
2, p. 3-4, where Magistrate Strand stated: "[a] federal court
may deny an application to proceed in forma pauperis based on
the plaintiff's history of filing frivolous or repetitive
lawsuits.
See, e.g., In re McDonald, 489 U.S.
180,
184
(1989) (per curiam); Cochran v. Morris, 73 F.3d 1310, 1316
(4th Cir. 1996). Here, I find that Urban has filed frivolous
and repetitive lawsuits in this court.
As such, his
application to file a new lawsuit without prepayment of fees
is denied. Urban may not, free of charge, file new "trapping"
lawsuits in this court."
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this Court entered an Order dismissing Mr. Urban’s Amended
Complaint, stating:
Because the Court is persuaded that Mr.
Urban’s claims must be dismissed based on
judicial immunity, prosecutorial immunity,
and a lack of subject matter jurisdiction,
the Court need not reach the other issues
included
in
the
Defendants’
briefs,
including claim/issue preclusion, qualified
immunity, and 11th Amendment immunity.
However, the Court is aware that each of
those issues have been discussed by either
this Court, Judge Strand or Judge Zoss
during the course of Mr. Urban’s four
cases, and each issue has been resolved
against Mr. Urban. Accordingly, the Court
notes that any future “trapping” case Mr.
Urban files will have high procedural bars
to overcome before it is allowed to
proceed.
If Mr. Urban feels that this
ruling is incorrect, and he wishes to
further purse [sic] his “trapping” case,
the proper procedural step is to file an
appeal with the 8th Circuit Court of
Appeals rather than filing another new
section 1983 lawsuit before this Court.
12-CV-4075, Docket No. 37, p. 11-12 (footnote emitted).
Mr. Urban did not appeal that ruling to the 8th Circuit
Court of Appeals.

Instead, shortly after the Court dismissed

12-CV-4075, Mr. Urban filed the present case, 13-CV-4096-DEO,
on October 17, 2013.
$400 filing fee.

Mr. Urban payed $350 of the required

Docket No. 2, p. 3-4.

Magistrate’s Report and Recommendation:
6

As stated in the

Urban’s new complaint looks familiar.
Indeed, large parts of it have been
copied-and-pasted from Urban’s filings in
other cases, especially his proposed (but
rejected) amended complaint in case number
12-4075 (compare Doc. No. 32-1 in that
case). Urban did take the time to rewrite
parts of the document, but the operative,
alleged facts are the same. Urban again
seeks relief from virtually the same group
of
defendants
based
on
the
same
trapping-related prosecution and conviction
that formed the basis of his prior
unsuccessful lawsuits.
Docket No. 2, p. 4.
After reviewing the pro se Complaint, Magistrate Strand
set a show cause hearing, stating:
[t]his court does not have to tolerate, and
will not tolerate, the repeated filing of
frivolous, already-rejected claims. See,
e.g., Kucera v. Inbody, 210 F.3d 379 (8th
Cir.
2000)
(table)
(affirming
$1000
sanction against plaintiff after the fourth
in a series of frivolous lawsuits).
Federal Rule of Civil Procedure 11(b)
provides that any party or attorney
presenting a pleading or motion to the
court is certifying that the claims and
allegations contained in the document are
not frivolous.
See Fed. R. Civ. P.
11(b)... 11(c). In accordance with Rule
11(c), Urban is hereby put on notice that
the court is strongly considering the
imposition of serious sanctions against
him.
Those sanctions may include, among
other things, a substantial monetary
penalty and the dismissal of this new case.

7

As such: 1. Urban shall attempt to show
cause as to why the complaint he has filed
to start this new case does not violate
Federal Rule of Civil Procedure 11(b).
Urban’s attempt to show cause shall be in
writing and shall be filed in this case on
or before November 4, 2013. Urban should
fully
explain
why
the
claims
and
allegations described in the new complaint
are not barred by the rulings and judgments
entered in case numbers 11-4068, 11-4107
and 12-4075. 2. No summons shall issue
for this case and no defendants shall be
served with notice of this new case unless
and until the court orders otherwise. 3.
The Clerk shall deposit Urban’s money order
into the Clerk’s account and shall hold
those funds until further order. 4. The
Clerk shall provide Urban with a copy of
this order by United States Mail.
Docket No. 2, p. 4-5, emphasis removed.
Mr. Urban filed a show cause response on October 29,
2013.

Docket No. 3.

On November 4, 2013, Magistrate Strand

entered a Report and Recommendation, Docket No. 4, stating:
Urban’s written explanation makes it clear
that he is confused about basic issues of
federal civil law and practice...
Urban
does not appear to understand that he
really does “have no case.” Judgment has
been entered against him in three separate
cases on the merits of claims that are
based on his state court conviction. Basic
concepts of res judicata prevent Urban from
filing and prosecuting new cases based on
the same alleged facts and claims... No
amount of re-drafting and re-filing will
allow Urban to pursue claims in this court
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based on the facts and allegations raised
in his prior cases.
I find that Urban’s latest complaint should
be summarily dismissed as a sanction
pursuant to Federal Rule of Civil Procedure
11(c). I further find that Urban should
forfeit the entire filing fee (which Urban
has not yet paid in full) and that he
should be very clearly and directly warned
that he will be fined a significant amount
(in my view, $1000 would be the starting
point) if he attempts to file yet another
case in this court that seeks relief based
on his state court “trapping” conviction.
I do, however, believe that the confusion
shown by Urban’s explanation is sincere.
I find that Urban, as a non-lawyer, did not
understand that he cannot keep filing new
cases until he gets it right. As such, I
recommend no additional sanctions against
him at this time...
Docket No. 4, p. 2-4. Shortly after the Magistrate issued his
Report and Recommendation, Mr. Urban paid the outstanding
$50.00 portion of the filing fee.
II.

STANDARD
Pursuant to statue, this Court’s standard of review for

a magistrate judge’s Report and Recommendation is as follows:
A judge of the court shall make a de novo
determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.

9

A judge of the court may accept, reject, or
modify, in whole or in part, the findings
or recommendations made by the magistrate
[judge].
28 U.S.C. § 636(b)(1).
Similarly, Federal Rule of Civil Procedure 72(b) provides
for review of a magistrate judge’s Report and Recommendation
on

dispositive

motions

and

prisoner

petitions,

where

objections are made as follows:
The district judge to whom the case is
assigned shall make a de novo determination
upon the record, or after additional
evidence, of any portion of the magistrate
judge’s disposition to which specific
written
objection
has
been
made
in
accordance with this rule.
The district
judge may accept, reject, or modify the
recommendation decision, receive further
evidence, or recommit the matter to the
magistrate judge with instructions.
FED. R. CIV. P. 72(b).
Additionally,

failure

to

object

to

the

Report

and

Recommendation waives the right to de novo review by the
district court of any portion of the Report and Recommendation
as well as the right to appeal from the findings of fact
contained therein.

United States v. Wise, 588 F.3d 531, 537

n.5 (8th Cir. 2009).

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III.

ANALYSIS
There is nothing new to be said about Mr. Urban’s case

that has not previously been said. Based on the principals of
res judicata, Mr. Urban’s ‘trapping’ claims are barred.

If

Mr. Urban is upset about this outcome, he should file an
appeal with the 8th Circuit Court of Appeals.

No amount of

restyling or rewriting or refiling his Complaint will allow
the ‘trapping’ claims to survive summary dismissal.

This

Court, Magistrate Strand and Magistrate Zoss have each tried
to make that point clear to Mr. Urban.
The Court has reviewed the Report and Recommendation,
Docket No. 4, along with the entire file, and finds Magistrate
Strand’s analysis and recommendations are appropriate and
correct.

2

Magistrate Strand stated that Mr. Urban had paid

$350 of the required $400 filing fee.
recommended

that

Mr.

Urban

be

deficiency.

Mr. Urban has now done so.

Magistrate Strand

required

to

pay

the

$50

The Court hopes that

the $400 remitted by Mr. Urban is a sufficient deterrent to
keep him from filing another frivolous ‘trapping’ case.
2

Although this Court will not set out the Magistrate’s
entire Report and Recommendation, it is incorporated in its
entirety by reference.
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IV.

CONCLUSION
For the reason’s set out above, the Court adopts the

Report and Recommendation, Docket No. 4, with the modification
to the language relating to the filing fee (as the fee has now
been paid by plaintiff). Mr. Urban’s Complaint, Docket No. 1,
shall be dismissed with prejudice.

Mr. Urban is advised that

filing any further ‘trapping’ cases may result in additional
penalties

under

Federal

Rule

of

Civil

Procedure

11(b).

Finally, because Mr. Urban has now paid the entire $400 filing
fee, no further payment is required, and the Clerk shall apply
the paid amount to the filing fee.
IT IS SO ORDERED this 18th day of March, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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