Gibbons v. Missouri Department of Revenue et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS 7 ; dismissing plaintiff's claims. Signed by District Judge Scott O. Wright on 3-9-09. (Morse, Judy)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

CHRISTOPHER GIBBONS, Register No. 184489, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ORDER

No. 08-4286-CV-C-SOW

On January 14, 2009, United States Magistrate Judge William A. Knox recommended dismissing plaintiff's claims. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C). The court has conducted a de novo review of the record, including the exceptions filed by plaintiff on March 2, 2009. The issues raised in plaintiff's exceptions were adequately addressed in the report and recommendation. Plaintiff's criminal conviction for driving while intoxicated and civil revocation of his driver's license do not evoke the protections of double jeopardy. Separate civil penalties following a criminal conviction are not punishment in violation of the Double Jeopardy Clause. United States v. Lippert, 148 F.3d 974 (8th Cir. 1998). Double jeopardy "protects only against the imposition of multiple criminal punishment for the same offense." Id. at 987 (quoting Hudson v. United States, 522 U.S. 93, 93 (1997)). The court is persuaded that the recommendation of the Magistrate Judge is correct and should be adopted. Inmates who file an appeal with the United States Court of Appeals for the Eighth Circuit are required to pay the full $455.00 appellate filing fee, regardless of the outcome of the appeal. Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). The filing of a notice of appeal is considered a consent by the inmate to allow prison officials to deduct an initial partial appellate filing fee and later installments from the prisoner's account.

IT IS, THEREFORE, ORDERED that the Report and Recommendation of January 14, 2009, is adopted. [7] It is further ORDERED that plaintiff's claims are dismissed, pursuant to 28 U.S.C. § 1915A, for failure to state a claim for which relief can be granted.

/s/Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge Dated: March 9, 2009

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