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Stompingbear v. Kelley

United States District Court, W.D. Arkansas, Hot Springs Division

April 11, 2019

HAPPY MYSTIK RAINBOW STOMPINGBEAR a/k/a Chris Ward PLAINTIFF
v.
WENDY KELLEY, et. al. DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Robert T. Dawson, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         Currently before the Court is Defendants' Motion to Dismiss for Lack of Jurisdiction. (ECF No. 30).

         I. BACKGROUND

         Plaintiff filed his Complaint on October 24, 2018. (ECF No. 1). Due to a deficiency with his in forma pauperis (IFP) application, his Complaint was provisionally filed and he was directed to file a completed IFP application. (ECF No. 3). He was granted IFP status on October 29, 2018. (ECF No. 7). Due to a deficiency with his Complaint, he was also directed to submit an Amended Complaint. (ECF No. 5). Plaintiff filed his Amended Complaint in this District on November 9, 2018. (ECF No. 14). He is currently incarcerated in the Arkansas Department of Correction (ADC) Ouachita River Unit. (Id. at 2). Plaintiff alleges his First Amendment rights and his rights under RLUIPA[1] have been violated by the ADC from 2012 to the filing of his Complaint. (Id. at 6, 8, 12, 14). Plaintiff identifies himself as an Eclectic Pagan and alleges that ADC policy does not permit “corporate worship” by any religious group except Christians. (Id. at 6, 25). Plaintiff states he has been either been denied the items he requires to practice his religion, or they have been confiscated. These items include runes, tarot cards, books on Wicca, Witchcraft and Magick, a pentacle, feathers, and small crystals. (Id. at 7-11). Plaintiff states these denials and confiscations have occurred at the Ouachita, Pine Bluff, and Tucker Units of the ADC. (Id.).

         Plaintiff also alleges he has not been able to engage in Native American traditional worship because he has been denied the opportunity to gather and worship in a group, “smoke the pipe, ” and “sweat in the lodge.” (Id. at 12-14). Finally, Plaintiff alleges he has been forced into slave labor in violation of his beliefs that “stem from the Charge of the Goddess which give me a positive duty to be free from slavery.” (Id. at 8-9). He states he was forced to engage in slave labor under the threat of a disciplinary charge. (Id. at 9). Plaintiff does not identify the ADC Units where these alleged violations of his rights occurred.

         A preservice screening Order was filed on March 1, 2019. (ECF No. 24). A service Order was entered on March 5, 2019. (ECF No. 25). Plaintiff filed a Motion to Amend/Correct on March 21, 2-19, clarifying the identify of some of his John Doe Defendants and providing additional details as to his seizure of property claim. (ECF Nos. 27, 29).

         On March 27, 2019, Defendants filed their Motion to Dismiss for Lack of Jurisdiction. (ECF No. 30).

         II. ANALYSIS

         Defendants argue Plaintiff's case in this District should be dismissed because Plaintiff has initiated the same claims in the Eastern District of Arkansas in Stompingbear v. Kelley, No. 4:18-cv-00827-KGB-BD (“Eastern District case”). His case in this district should therefore be dismissed for lack of subject matter jurisdictions. They further argue the dismissal should further be assigned a strike pursuant to 28 U.S.C. § 1915(g) because Plaintiff initiated litigation of a frivolous duplicative lawsuit. (ECF No. 30 at 2; 31 at 2).

         “[A] plaintiff should not be allowed to litigate the same issue at the same time in more than one federal court.” Blakely v. Schlumberger Tech. Group, 648 F.3d 921, 932 (8th Cir. 2011) (internal citation and quotation omitted). “Further, dismissal of duplicative claims comports with our long-standing ‘general principle' of ‘avoid[ing] duplicative litigation.” Id. (citing Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir. 1988)).

         Plaintiff's claims in this case and the Eastern District case center on his allegations that the ADC does not permit him to fully worship as an Eclectic Pagan or engage in Native American traditional worship, punishes him for practicing his religion, and gives preferential treatment to Christians. A review of Plaintiff's Eastern District Complaint supports Defendants' summary of that case as indistinguishable from this case:

In Stompingbear II, [2] he states that he is an “ardent practitioner of the eclectic pagan religion and is a Native American Indian” and that “ADC has and continues to purposefully impose a substantial burden on his being able to exercise his religion by failing to make religious accommodations for his pagan worship, and punishing him for adhering to some religious beliefs.” Stompingbear II at DE 9-10. He alleges this has been ongoing since 2012. Stompingbear II at 10. Plaintiff further alleges the ADC shows preferential treatment to inmates with Christian beliefs. Stompingbear II at 11. Specifically, Plaintiff complains of the failure of the Defendants in Stompingbear II to provide him group time to celebrate sacred days of fellow ship. Stompingbear II at 11. He also states he has been given no accommodation so he can possess certain items he claims are religious items such as feathers, small stones, tarot cards and runes, despite multiple requests. Stompingbear II at 10-12. Plaintiff alleges Christian inmates are allowed special privileges and exemptions which he as a pagan is not. Stompingbear II at 11 Finally, Plaintiff also alleges that he is being forced into slavery which is a violation of his religion, and that he is being punished and retaliated against with disciplinaries for practicing his religious beliefs. Stompingbear II at 12. While Plaintiff might have provided additional details in the above-captioned pleadings, his claims are clearly identical to those contained in Stompingbear II.

(ECF No. 31 at 4-5). Plaintiff names ADC administration officials, ADC staff, ADC chaplains, and Arkansas Governor Hutchinson as Defendants for both cases. Thus, there is no question that this case and the Eastern District case are duplicative; ...


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