United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, Chief United States District Judge.
the Court is the Report and Recommendation filed March 7,
2019, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 8). Judge Bryant conducted a preservice screening
pursuant to 28 U.S.C. § 1915A and now recommends that
the Court dismiss Plaintiff Travis Randall Reves'
complaint without prejudice and place a section 1915 strike
flag on this case. Plaintiff has objected. (ECF No. 9). The
Court finds the matter ripe for consideration.
December 28, 2018, Plaintiff filed this case pursuant to 42
U.S.C. § 1983. Plaintiff asserts the following claims
against various defendants: inadequate legal assistance,
denial of access to the courts, deprivation of property, and
inadequate conditions of confinement. On March 7, 2019, Judge
Bryant issued the instant Report and Recommendation, finding
that Plaintiff fails to state a claim upon which relief may
be granted and recommending dismissal of this case, along
with the imposition of a section 1915 strike flag.
Specifically, Judge Bryant found that Plaintiff's claim
against Defendant Judge Cooper fails due to the doctrine of
judicial immunity. Judge Bryant found further that
Plaintiff's claim against Defendants Barrett and Buchanan
fails because, as public defenders, they do not act under
color of state law when performing a lawyer's traditional
functions. Judge Bryant also found that Plaintiff's
claims against the Sevier County Detention Center fail
because it is not a person subject to suit. Judge Bryant also
found that Plaintiff's denial of access to the courts
claims fail because Plaintiff was assigned a public defender
and because he failed to allege any injury suffered because
of any alleged deprivation of a law library. Judge Bryant
also found that Plaintiff's claim of deprivation of
property fails because Plaintiff may pursue adequate
post-deprivation remedies in Arkansas state court. Judge
Bryant found further that Plaintiff's Eighth Amendment
conditions of confinement claim fails because he failed to
allege any injury suffered due to the alleged conditions.
Finally, Judge Bryant recommends that the Court direct the
Clerk of Court to place a section 1915 strike flag on this
March 20, 2019, Plaintiff filed objections to the Report and
Recommendation. Plaintiff's objections are unresponsive
to the Report and Recommendation. He states that he believed
that he would be assigned an attorney in this case. He also
states that the alleged conditions that form the basis of
this suit have not changed.
de novo review of the Report and Recommendation, and
for the reasons that follow, the Court finds that Plaintiff
has offered neither fact nor law which would cause the Court
to deviate from Judge Bryant's Report and Recommendation.
Plaintiff does not dispute Judge Bryant's statements of
law, findings, or recommendations. Rather, Plaintiff argues
that he is ignorant of the law and requires appointment of
counsel. Although Plaintiff indicates in his complaint and in
his objections to the instant Report and Recommendation that
he would like appointed counsel, he has not filed a motion
for appointment of counsel in this case. However, to the
extent that Plaintiff's statements can be construed as a
valid motion for appointment of counsel, the Court will
decide the motion below.
litigant, like Plaintiff in this case, does not have a
constitutional or statutory right to appointed counsel, but
the Court may appoint counsel at its discretion. 28 U.S.C.
§ 1915(e)(1); Wiggins v. Sargent, 753 F.2d 663,
668 (8th Cir. 1985). This determination is to be made after
the civil litigant shows that he has alleged a valid
prima facie claim. Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1005 (8th Cir. 1984). The
standard for determining the necessity of appointed counsel
is whether both the indigent litigant and the court would
benefit from the assistance of counsel. Johnson v.
Williams, 788 F.2d 1319, 1322 (8th Cir. 1986). To that
end, courts consider various factors, including the factual
complexity of the issues; the ability of an indigent to
investigate the facts; the existence of conflicting
testimony; the ability of an indigent to present his claim;
and the complexity of the legal issues. Id. A court
determining a civil litigant's motion for appointment of
counsel should also satisfy itself that the litigant
attempted to retain counsel but was unsuccessful.
Nelson, 728 F.2d at 1005.
onset, the Court notes that Judge Bryant found in the instant
Report and Recommendation that Plaintiff failed to state a
claim upon which relief can be granted, and Plaintiff has not
objected to this finding. The determination of whether
counsel should be appointed should be made only after a
pro se plaintiff shows that he has alleged a valid
prima facie claim pursuant to 28 U.S.C. §
1915(d). Nelson, 728 F.2d at 1005. Plaintiff did not
object to Judge Bryant's finding that his claims fail
pursuant to section 1915(d), nor has he otherwise argued that
he has alleged a valid prima facie claim. Thus, for
the reasons stated by Judge Bryant in the instant Report and
Recommendation, the Court finds that Plaintiff has failed to
satisfy the threshold requirement of showing that he has
alleged a valid prima facie claim. Therefore, the
Court finds that appointment of counsel is not proper in this
instance. See Nelson, 728 F.2d at 1005 (stating that
courts should determine appointment of counsel “[o]nce
the court is satisfied that plaintiff has alleged a valid
prima facie claim”).
Plaintiff had shown that he alleged a valid prima
facie claim, the Court finds that appointment of counsel
is still not warranted. Plaintiff has not argued or shown
that the factual and legal issues presented here are so
complex that he cannot represent himself in this matter.
Plaintiff has also failed to argue or otherwise show that he
has diligently attempted to retain counsel. The Court also
finds that Plaintiff is presently capable of prosecuting his
claims without appointed counsel. Thus, the Court finds that
neither Plaintiff nor the Court would benefit from
appointment of counsel at this time.
other objection to the instant Report and Recommendation is
that the alleged conditions that gave rise to this suit have
not changed. However, the Court finds this argument to be
unresponsive to the Report and Recommendation and, thus, is
insufficient to cause the Court to depart from Judge
Bryant's findings and recommendations. Plaintiff presents
no other objections to the instant Report and Recommendation.
Thus, the Court agrees with Judge Bryant's finding that
Plaintiff's claim against Judge Cooper fails because it
seeks monetary relief from a defendant who is immune from
such relief or, alternatively, that the claim should be
dismissed as frivolous. See Bell v. Scherrey, No.
2:13-cv-2201, 2013 WL 5175919, at *1-2 (W.D. Ark. Sept. 13,
2013) (dismissing 42 U.S.C. § 1983 claims against a
judge based on judicial immunity or, alternatively, as
frivolous, and determining that the dismissal constitutes a
“strike” under 28 U.S.C. 1915(g)). The Court also
agrees with Judge Bryant that Plaintiff's other claims
are either frivolous or fail to state a cognizable claim upon
which relief may be granted. Therefore, the Court finds that
the instant Report and Recommendation should be adopted and
that Plaintiff's complaint should be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A. The Court further finds that this
dismissal will constitute a “strike” under 28
U.S.C. § 1915(g). See Orr v. Clements, 688 F.3d
463, 465-66 (8th Cir. 2012) (holding that dismissal without
prejudice of a section 1983 case as frivolous or for failure
to state a claim constitutes a section 1915(g)
de novo review of the Report and Recommendation and
for the foregoing reasons, the Court hereby overrules
Plaintiff's objections and adopts the Report and
Recommendation in toto. (ECF No. 8). Plaintiff's
case is hereby DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A. The dismissal of this action constitutes a
“strike” under 28 U.S.C. § 1915(g) because
Plaintiff's complaint is being dismissed as frivolous
and/or for failure to state a claim upon which relief may be
granted. Therefore, the Clerk of Court is
DIRECTED to place a section 1915 strike flag
on this case.