Burgie v. McDaniel et al

Filing 6

ORDER adopting 4 Report and Recommendations in their entirety as this Court's findings in all respects. Plaintiff's 2 complaint is dismissed without prejudice for failure to state a claim upon which relief may be granted. This dismissal counts as a "strike" for purposes of 28 U.S.C. § 1915(g). The Court certifies that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Signed by Judge Kristine G. Baker on 11/3/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
ERIC C. BURGIE
ADC #120956
v.

PLAINTIFF

Case No. 4:14-cv-00181-KBG-HDY

DUSTIN MCDANIEL, ET AL.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge H. David Young (Dkt. No. 4) and the objections filed by plaintiff
Eric Burgie (Dkt. No. 5). After carefully considering Mr. Burgie’s objections and making a de
novo review of the record in this case, the Court concludes that the Proposed Findings and
Recommendations should be, and hereby are, approved and adopted in their entirety as this
Court's findings in all respects.
The Court writes separately to address Mr. Burgie’s objections. Mr. Burgie argues that
the United States Supreme Court’s opinion in Skinner v. Switzer, 131 S. Ct. 1289 (2011), allows
him to bring a due process claim under 42 U.S.C. § 1983 challenging the state’s post-conviction
procedures. Skinner does not address the issue here: whether defendants, Attorney General
Dustin McDaniel and Assistant Attorney General Christian Harris, have absolute immunity. As
stated in the Proposed Findings and Recommendations, which this Court adopts in full,
defendants here are absolutely immune from suit for their actions as advocates for the state in a
judicial proceeding. See Murphy v. Morris, 849 F.2d 1101 (8th Cir. 1988).
It is therefore ordered that:
1.

Plaintiff’s complaint is dismissed without prejudice for failure to state a claim
upon which relief may be granted.

2.

This dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g).

3.

The Court certifies that an in forma pauperis appeal taken from the order and
judgment dismissing this action is considered frivolous and not in good faith.

SO ORDERED this 3rd day of November, 2014.

_______________________________
Kristine G. Baker
United States District Judge

2