Butgereit v. Horseshoe Bend Arkansas, City of

Filing 8

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint be dismissed without prejudice, and that his 1 motion for leave to proceed in forma pauperis be denied as moot; and recommending that the District Court certify that an in for ma pauperis appeal taken from the Order and Judgment dismissing this action would be frivolous and not taken in good faith. Objections to R&R due 11 days from the date the recommended disposition is received. Signed by Magistrate Judge Beth Deere on 11/17/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS N O R T H E R N DIVISION S H A N E ALAN BUTGEREIT V. C A S E NO. 1:09CV00060 SWW/BD DEFENDANT P L A IN T IF F

C I T Y OF HORSESHOE BEND, ARKANSAS R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections:

T h e following Recommended Disposition has been sent to United States District C o u rt Judge Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the recommended disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

I n t r o d u c t io n : P la in tif f Shane Alan Butgereit, an inmate in the Izard County Detention Center,

f ile d this 42 U.S.C. § 1983 action pro se (docket entry #2), along with a motion for leave to proceed in forma pauperis (#1). United States District Judge Susan Webber Wright re f e rre d the case to this Court for recommended disposition (#4). This Court recommends that Plaintiff's Complaint (#2) be DISMISSED W IT H O U T PREJUDICE, and that his motion for leave to proceed in forma pauperis (#1) b e DENIED as moot. In addition, the Court recommends that the District Court certify th a t an in forma pauperis appeal taken from the Order and Judgment dismissing this a c tio n would be frivolous and not taken in good faith. III. S c r e e n in g : F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. § 1915A. The Court must dismiss a c o m p la in t, or portion thereof, if the prisoner has raised claims that: (a) are legally f riv o lo u s or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C § 1915A(b)(1)-(2). To state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege that the c o n d u c t of a person acting under color of state law deprived him of a right, privilege, or im m u n ity secured by the federal Constitution or laws of the United States. 42 U.S.C.

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§ 1983. Although "detailed factual allegations are not required," the complaint must c o n ta in sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, __ U.S.__, 129 S.Ct. 1937, 1940 (2009) (quoting Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 127 S.Ct. 1955 (2007)). "A claim has facial plausibility when th e pleaded factual content allows the court to draw the reasonable inference that the d e f e n d a n t is liable for the misconduct alleged." Iqbal, __ U.S. __, 129 S.Ct. at 1940. While a court must accept the factual allegations in the complaint as true and hold a plaintiff's pro se complaint "to less stringent standards than formal pleadings drafted by la w ye rs," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a plaintiff still m u s t assert facts sufficient to state a claim as a matter of law. Martin v. Sargent, 780 F .2 d 1334, 1337 (8th Cir. 1985). In the present case, Plaintiff sues the City of Horseshoe Bend based on his alleged w ro n g f u l conviction in the Horseshoe Bend City Court. He states that he is currently s e rv in g a 180-day sentence in the Izard County Detention Center due to this conviction. P la in tif f filed an almost identical complaint in Butgereit v. Johnson, et al., 1 :0 9 C V 0 0 0 4 8 (E.D. Ark. dismissed Oct. 5, 2009). In that case, Plaintiff's complaint was d is m is s e d with prejudice because he had sued an immune defendant, the trial judge. The C o u rt stated in that case that it was unclear whether Plaintiff intended to name the City of H o rs e s h o e Bend as a defendant or merely to identify the location of the trial judge, who w a s a named defendant.

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In the present case, Plaintiff names the City of Horseshoe Bend as the only D e f e n d a n t. Regardless of whether the previous case would bar Plaintiff's present case u n d e r the doctrine of res judicata, this current claim against the City of Horseshoe Bend m u s t be dismissed based on the relief Plaintiff seeks. A claim for damages that necessarily implies the invalidity of a conviction or s e n te n c e is not cognizable under § 1983 until the conviction or sentence has been in v a lid a te d . Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). Plaintiff alleges th a t he was denied the right to counsel and to a trial by jury, that he was convicted w ith o u t the introduction of any evidence against him, and that he was sentenced by a c o u rt operating without legal authority (#2). These allegations amount to a direct attack o n his conviction and sentence. He may not proceed with this claim until his conviction h a s been invalidated or overturned. "[I]n order to recover damages for allegedly unconstitutional conviction or im p ris o n m e n t, or for other harm caused by actions whose unlawfulness would render a c o n v ic tio n or sentence invalid, a § 1983 plaintiff must prove that the conviction or s e n te n c e has been reversed on direct appeal, expunged by executive order, declared in v a lid by a state tribunal authorized to make such determination, or called into question b y a federal court's issuance of a write of habeas corpus, 28 U.S.C. § 2254." Heck, 512 U .S . at 486-87, 114 S.Ct. at 2372. Because Plaintiff has not shown the invalidation of his c o n v ic tio n , his Complaint must be dismissed without prejudice.

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IV.

C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED

W IT H O U T PREJUDICE, and that his motion for leave to proceed in forma pauperis (#1) b e DENIED as moot. In addition, the Court recommends that the District Court certify th a t an in forma pauperis appeal taken from the Order and Judgment dismissing this a c tio n would be frivolous and not taken in good faith. D a te d this 17th day of November, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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