The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
TERRICK NOONER, ADC #000926 PLAINTIFF
v. Case No. 4:19-cv-00389-KGB
STATE OF ARKANSAS, et al. DEFENDANTS
ORDER
Before the Court is the status of this case. Plaintiff Terrick Nooner is currently incarcerated
at the Varner Supermax Unit of the Arkansas Department of Correction. On June 3, 2019, Mr.
Nooner, proceeding pro se, filed a motion for leave to proceed in forma pauperis and a complaint
in the United States District Court for the Eastern District of Texas (Dkt. Nos. 1, 3). That same
day, Mr. Nooner also filed a motion to appoint counsel and a motion for a preliminary injunction
(Dkt. Nos. 2, 4). Leave to proceed in forma pauperis was granted, and an initial partial filing fee
was assessed, on June 5, 2019 (Dkt. No. 6).1 The case was subsequently transferred to this Court,
except that Mr. Nooner’s claims against the State of Texas were severed and kept in the Eastern
District of Texas (Dkt. Nos. 7, 8). Mr. Nooner names as defendants the State of Arkansas, the
United Nations Security Council, former Craighead County Municipal Judge Bill Webster, 22
United States District Judges for the Eastern and Western Districts of Arkansas, and the Craighead
County Circuit Court (Dkt. No. 1).
I. Screening
1 This Court notes that, in the Eastern District of Arkansas, Mr. Nooner has previously
been designated as a three-striker under the Prison Litigation Reform Act of 1996 (“PLRA”), 42
U.S.C. § 1997e, and had claims dismissed without prejudice based on this classification and his
failure to pay the statutory filing fee. See Nooner v. Miller, No. 4:19CV00194 SWW (E.D. Ark.
Mar. 29, 2019).
Under the Prison Litigation Reform Act of 1996, the Court is obligated to screen Mr.
Nooner’s complaint and dismiss the case, in whole or in part, if the Court determines that it is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). A complaint
is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
required, but the “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated differently, the
allegations pleaded must show “more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 678 (2009). While the court must accept as true all well-
pleaded facts in the complaint, see Farm Credit Servs. of Am., FLCA v. Haun, 734 F.3d 800, 804
(8th Cir. 2013), it need not credit conclusory allegations or “naked assertion[s] devoid of further
factual enhancement,” Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768 (8th Cir. 2012) (alteration in original) (quoting Iqbal, 556 U.S. at 678).
The Court recognizes that, in evaluating whether a pro se plaintiff has asserted sufficient
facts to state a claim, it holds “a pro se complaint, however inartfully pleaded, . . . to less stringent
standards than formal pleadings drafted by lawyers.” Jackson v. Nixon, 747 F.3d 537, 541 (8th
Cir. 2014) (alteration in original) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even with
this construction, however, “a pro se complaint must contain specific facts supporting its
conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
2
In his complaint, Mr. Nooner asserts flaws in a 1993 state-court criminal case, in which he
was sentenced to death, and seeks immediate release from the custody of the Arkansas Department
of Correction and “liquidated compensation.” (Dkt. No. 1, at 4). Without commenting on the
merits of the allegations in Mr. Nooner’s complaint, the Court finds that the claims raised therein
should be dismissed due to this Court’s lack of jurisdiction insofar as Mr. Nooner’s claims
constitute a successive habeas petition; a successive habeas petition must be certified by the
appropriate court of appeals before the petition may be considered by a district court. See Boykin
v. United States, 242 F.3d 373 (8th Cir. 2000) (citing 28 U.S.C. §§ 2255, 2244(b)).2 To the extent
Mr. Nooner asserts other claims that are non-habeas claims, those claims are barred by the doctrine
of Heck v. Humphrey, 512 U.S. 477, 487 (1994), as a judgment in Mr. Nooner’s favor on the
allegations he presents would “necessarily imply” the invalidity of his criminal conviction. In
Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
2 Mr. Nooner has attempted to file a successive habeas petition against some of these same
defendants; that case was also dismissed. See Nooner v. Miller, No. 4:19-CV-00210-BRW (E.D.
Ark. Mar. 27, 2019).
3
Id. at 486–87 (footnote omitted). Here, each of the claims that Mr. Nooner raises in his complaint,
if successful, would “necessarily imply” the invalidity of his conviction or sentence. As such, and
because Mr. Nooner has not alleged that his conviction or sentence has already been invalidated,
his claims are barred by the Heck doctrine.
In light of these deficiencies, the Court will not direct service of Mr. Nooner’s complaint
at this time and will instead dismiss without prejudice his claims.
II. Motion To Appoint Counsel
Mr. Nooner has filed a motion to appoint counsel (Dkt. No. 2). Although the Court
recognizes the difficulties that may be encountered by a pro se, non-lawyer plaintiff, “pro se
litigants have neither a constitutional nor a statutory right to appointed counsel in civil cases.”
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). “Instead, district courts may appoint
counsel in such cases if convinced that an indigent plaintiff has stated a non-frivolous claim, and
where the nature of the litigation is such that plaintiff as well as the court will benefit from the
assistance of counsel.” Id. (citation and internal quotation marks omitted). “The relevant criteria
for determining whether counsel should be appointed include the factual complexity of the issues,
the ability of the indigent person to investigate the facts, the existence of conflicting testimony,
the ability of the indigent person to present the claims, and the complexity of the legal arguments.”
Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).
Here, the Court does not believe that the interests of justice require the appointment of
counsel. Therefore, the Court denies Mr. Nooner’s motion to appoint counsel (Dkt. No. 2).
III. Motion For A Preliminary Injunction
4
Before Mr. Nooner’s complaint was screened, he filed a motion for a preliminary
injunction (Dkt. No. 4). In determining whether to issue a preliminary injunction, the Court must
weight: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this
harm and the injury that granting the injunction will inflict on other parties litigant; (3) the
probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). “A preliminary injunction is an
extraordinary remedy, and the burden of establishing the propriety of an injunction is on the
movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citations omitted). “The
purpose of a preliminary injunction is merely to preserve the relative positions of the parties until
a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “A
district court has broad discretion in ruling on requests for preliminary injunctions,” Kroupa v.
Nielsen, 731 F.3d 813, 818 (8th Cir. 2013), and the court of appeals “will reverse only for clearly
erroneous factual determinations, an error of law, or an abuse of that discretion,” Med. Shoppe
Int’l, Inc. v. S.B.S. Pill Dr., Inc., 336 F.3d 801, 803 (8th Cir. 2003) (quoting United Indus. Corp.
v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)).
Here, the Court finds that, on the limited record before it, Mr. Nooner is not entitled to a
preliminary injunction. “In deciding whether to grant a preliminary injunction, ‘likelihood of
success on the merits is most significant.’” S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist.,
696 F.3d 771, 776 (8th Cir. 2012) (quoting Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59
F.3d 80, 83 (8th Cir. 1995)). Mr. Nooner’s conclusory, one-page motion for a preliminary
injunction does not establish that he is likely to succeed on the merits of any of his claims, and the
Court dismisses without prejudice his claims for the legal reasons explained. Accordingly, the
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Court determines that Mr. Nooner is not entitled to the extraordinary remedy of a preliminary
injunction and denies Mr. Nooner’s motion for a preliminary injunction (Dkt. No. 4).
IV. Conclusion
In sum, the Court denies Mr. Nooner’s motion to appoint counsel and motion for a
preliminary injunction (Dkt. Nos. 2, 4). The Court dismisses without prejudice Mr. Nooner’s
claims. The relief requested is denied.
It is so ordered this 19th day of March, 2020.
Kush 4.Palua—
Kristine G. Baker
United States District Judge