United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Brisbois United States Magistrate Judge
matter comes before the undersigned United States Magistrate
Judge upon routine supervision of the cases that pend before
the Court pursuant to a general assignment made in accordance
with the provision of 28 U.S.C. § 636, and upon
Plaintiff Alan Harold Roebke's Application to Proceeds in
forma pauperis, [Docket No. 2], and Plaintiff's Motion
for Emergency Injunctive Relief. [Docket No. 3].
brings his action asking the Court to direct the Federal
Communications Commission (“FCC”) to apportion
part of the broadcast spectrum to him and InFormed TV, an
entity closely controlled by him. (See, Compl.
[Docket No. 1]). Plaintiff did not pay the filing fee in this
matter, but instead applied for in forma pauperis
(“IFP”) status. (See, IFP Application
[Docket No. 2]). That IFP application is now before the Court
and must be considered before any other action may be taken
in this matter.
review, this Court concludes that Plaintiff qualifies
financially for IFP status. However, an IFP application will
be denied and an action dismissed, when an IFP applicant has
filed a complaint that fails to state a cause of action on
which relief may be granted. See, 28 U.S.C. §
1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127,
1128 (8th Cir. 1996) (per curiam); Carter v.
Schafer, 273 Fed. App'x 581, 582 (8th Cir. 2008)
(per curiam) (“[C]ontrary to plaintiffs' arguments
on appeal, the provisions of 28 U.S.C. § 1915(e) apply
to all persons proceeding IFP and are not limited to prisoner
suits, and the provisions allow dismissal without
service.”). In reviewing whether a complaint states a
claim on which relief may be granted, this Court must accept
as true all of the factual allegations in the complaint and
draw all reasonable inferences in the plaintiff's favor.
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008). Although the factual allegations in the complaint
need not be detailed, they must be sufficient to “raise
a right to relief above the speculative level . . . .”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. In
assessing the sufficiency of the complaint, the court may
disregard legal conclusions that are couched as factual
allegations. See, Ashcroft v. Iqbal, 556
U.S. 662 (2009). Pro se complaints are to be construed
liberally, but they still must allege sufficient facts to
support the claims advanced. See, Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004).
complaint is not clear in all particulars, including the
legal theory by which he is seeking relief. (See,
Compl. [Docket No. 1]). In any event, nothing in the
complaint establishes that Plaintiff or InFormed TV has any
entitlement to the portions of the broadcast
spectrum that have been or are about to be reapportioned by
the FCC. (See, Id.). Nor does Plaintiff
allege that the FCC has considered legally improper factors
in reapportioning the broadcast spectrum such that the
lawfulness of the FCC's decisions might be called into
question. Finally, although Plaintiff alleges that his First
Amendment rights have been violated, “[n]o one has a
First Amendment right to a [broadcasting] license . . .
.” Red Lion Broadcasting Co. v. F.C.C., 395
U.S. 367, 389 (1969). The restriction of the broadcast
spectrum to groups of individuals and entities that do not
include Plaintiff does not, by itself, amount to a violation
of his constitutional rights.
it is recommended that this matter be dismissed without
this matter, as pleaded, has no chance of success on the
merits, it is further recommended that Plaintiff's motion
for emergency injunctive relief also be denied. See,
Mid-America Real Estate Co. v. Iowa Realty Co.,
Inc., 406 F.3d 969, 972 (8th Cir. 2005) (“[A]n
injunction cannot issue if there is no chance of success on
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
matter be DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
application to proceed in forma pauperis of
Plaintiff Alan Harold Roebke, [Docket No. 2], be
Plaintiff Alan Harold Roebke's Motion for Injunctive
Relief, [Docket No. 3], be DENIED.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. See Local