United States District Court, N.D. Iowa, Western Division
ORDER ON REPORT AND RECOMMENDATION
DONALD E. O'BRIEN, Senior District Judge.
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.
Mr. Urban has a long history before this Court. On August 1, 2011, Mr. Urban filed case 11-CV-4068-DEO. In that 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 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 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 fur bearing animals they could be let go.... I'm also filing this civil suit because when a person fights the Iowa Dept. Of ...