United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
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
before the Court is Defendants' Motion to Dismiss for
Lack of Jurisdiction. (ECF No. 30).
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 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
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.
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).
March 27, 2019, Defendants filed their Motion to Dismiss for
Lack of Jurisdiction. (ECF No. 30).
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).
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)).
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,  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