McQuerry v. Phillips et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 7 Report and Recommendations; Plaintiff's claims against Defendants Phillips, Singleton, Van Hook, Price, Carroll, Klappenbach, and Harp, and all of Plaintiff's claims related to his arre st, investigation, conviction, and imprisonment should be and hereby are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915 & 1915A. Plaintiff's claims that remain include those related to his conditions of confinement, inade quate medical care and medication, grievances, and safety in the Union County Detention Center. Caren Harp (Public Defender), Cathy Phillips (Detective), Tennille Price (Deputy Prosecuting Attorney), Hamilton H. Singleton (Circuit Judge), George Vanhook, Robin J. Carroll and Attorney Clappenback terminated. Signed by Honorable Susan O. Hickey on April 2, 2013. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

ALFRED A. MCQUERRY

V.

PLAINTIFF

Civil No. 12-cv-1060

CATHY PHILLIPS; HON HAMILTON
SINGLETON; TENNILLE PRICE;
ROBIN CARROLL; ATTORNEY
CLAPPENBACK; CAREN HARP
LT. WALTER BASS; SGT. JAMES
GREER; SGT. SANDERS; JONATHAN
MESSER; OFFICER MORGAN; NURSE
KELLY PEPPERS; and JUDGE VANHOOK

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed January 9, 2013 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 7). Judge Bryant has reviewed Plaintiff’s Complaint (ECF No. 1) pursuant to 28
U.S.C. § 1915 and recommends dismissal of certain claims and Defendants while retaining
others. Plaintiff has filed an objection to Judge Bryant’s report. (ECF No. 11). After a de novo
review of the record, the Court adopts Judge Bryant’s report as its own.
Upon review of Plaintiff’s Complaint, Judge Bryant found that Plaintiff asserts claims
from two different factual circumstances. First, Plaintiff brings claims related to his arrest,
investigation, conviction, and imprisonment. He essentially claims that all stages of his criminal
proceeding were conducted unlawfully. Second, he asserts claims involving his conditions of
confinement, inadequate medical care and medication, grievances, and safety in the Union
County Detention Center.

Judge Bryant recommends dismissal of all claims against Defendants Phillips, Singleton,
Van Hook, Price, Carroll, Klappenbach, and Harp because these Defendants enjoy absolute
immunity, or otherwise because they are barred from suit. Judge Bryant also recommends
dismissal of all the claims related to Plaintiff’s arrest, investigation, conviction, and
imprisonment because he has failed to state a claim for relief. Plaintiff does not appear to object
to the dismissal of Defendants who are barred from suit. He does, however, object to the
dismissal of his unlawful arrest, investigation, conviction, and imprisonment claims.
To state a claim for relief for an illegal arrest, criminal investigation, conviction, or
imprisonment, Plaintiff must show 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
a determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has failed to allege any of those facts.
In his objection, Plaintiff argues that he has sufficiently stated a claim for an unlawful
arrest, investigation, conviction, and imprisonment because the original charges against him were
dropped. Apparently the prosecution dropped charges of rape against Plaintiff and only pursued
charges of sexual assault. Plaintiff was then convicted of sexual assault. Plaintiff seems to
suggest that because his original charges were dropped, he has alleged sufficient facts regarding
the invalidity of his arrest and conviction to satisfy the standard in Heck. Plaintiff, however, has
not alleged that his sexual assault conviction was overturned or declared invalid in any way. The
mere fact that certain charges were dropped, while a lesser included offense was pursued by the
prosecution, is not enough to state a claim for an unlawful arrest, conviction, or imprisonment.
Furthermore, Plaintiff cannot bring claims under 42 U.S.C. § 1983 as a means to
substitute for habeas corpus relief. Heck, 512 U.S. at 483-89. Considering the nature of relief

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Plaintiff seeks, the appropriate avenue for him appears to be a petition for habeas corpus. Therefore,
Plaintiff’s objection is without merit.
Accordingly, the Court adopts Judge Bryant’s report in its entirety. Plaintiff’s claims
against Defendants Phillips, Singleton, Van Hook, Price, Carroll, Klappenbach, and Harp, and all
of Plaintiff’s claims related to his arrest, investigation, conviction, and imprisonment should be
and hereby are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915 &
1915A. Plaintiff’s claims that remain include those related to his conditions of confinement,
inadequate medical care and medication, grievances, and safety in the Union County Detention
Center.
IT IS SO ORDERED, this 2nd day of April, 2013.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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