Burchfield v. Harrelson et al

Filing 61

ORDER adopting Report and Recommendations re 18 ; Jeff Harrelson (Public Defender, Texarkana), Monty Woods (Assistant Prosecuting Attorney, DeQueen), Bryan Chesshir (Assistant Prosecuting Attorney, DeQueen) and Doe (Betty, Jeff Harrelson's Secretary) terminated. Signed by Honorable Susan O. Hickey on October 25, 2016. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BRADLEY CRAIG BURCHFIELD
v.

PLAINTIFF
Case No. 4:16-cv-4050

JEFF HARRELSON; MONTY WOODS;
BRYAN CHESSHIR; DEPUTY CHRIS
WALCOTT; SHERIFF BENNY SIMMONS; and
DEFENDANT DOE (BETTY)

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed July 21, 2016, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 18). Judge Bryant recommends that Plaintiff Bradley Craig Burchfield’s claims be
dismissed with prejudice as to the following defendants: Jeff Harrelson, Defendant Doe (Betty),
Monty Woods, and Bryan Chesshir. Plaintiff has timely filed objections to the Report and
Recommendation, along with two supplements. (ECF Nos. 23-24, 32). The Court finds this
matter ripe for consideration.
I. BACKGROUND
This case is a § 1983 action brought by Plaintiff on May 24, 2016, suing Defendants in
both their official and personal capacities. Plaintiff alleges that when he was awaiting state
charges and incarcerated in the Sevier County Detention Center (“SCDC”) in De Queen,
Arkansas, SCDC did not have a law library. 1 Plaintiff states that it is SCDC’s policy to provide
access to law library materials through appointed counsel and free phone calls to counsel.
Plaintiff alleges that Defendant Chris Walcott and Defendant Benny Simmons denied him access

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The record indicates that Plaintiff is no longer incarcerated at SCDC, but is currently incarcerated at the Arkansas
Department of Correction – East Arkansas Regional Unit in Mariana, Arkansas. (ECF No. 17).

to a law library at SCDC. 2 Plaintiff also alleges that while at SCDC, he believes someone read
his “privileged legal mail” because some of it had been opened and handwriting on the outside
was not his. (ECF No. 9).
Plaintiff claims that Defendant Jeff Harrelson, a public defender, violated his
constitutional rights by failing to effectively represent him. Plaintiff states that he was only able
to speak with Defendant Harrelson on one occasion regarding his case. Plaintiff alleges that at
court, Defendant Harrelson was unable to provide the law he was being charged with, and that
Defendant Harrelson has “several ethics reviews and other cases of ‘ineffective counsel’ under
suit from other inmates.” (ECF No. 9). Plaintiff alleges that Defendant Harrelson’s secretary,
Defendant Doe (Betty), spoke with Plaintiff on the telephone several times, indicated that she
would pass messages along to Defendant Harrelson, and on one occasion, told Plaintiff that she
could not send him paperwork to fill out to “have a misdemeanor ran [sic] concurrent with a
felony.” (ECF No. 1).
Plaintiff alleges that Defendant Monty Woods and Defendant Bryan Chesshir, both
prosecuting attorneys in Sevier County, Arkansas, exaggerated the charges against him for drug
possession. Plaintiff alleges that Defendants Harrelson, Woods, and Chesshir use “arcane tactics
to force people who can’t afford a paid lawyer into taking pleas well above the range of the law.”
(ECF No. 9).
On May 24, 2016, Plaintiff filed the present pro se case in the United States District
Court for the Eastern District of Arkansas. On May 27, 2016, the case was transferred to the
Western District of Arkansas. Pursuant to 28 U.S.C. § 636(b)(1) & (3), the Court referred this
case to Judge Bryant for the purpose of making a Report and Recommendation. On July 12,
2016, Judge Bryant issued a Report and Recommendation, recommending that Plaintiff’s claims
2

Plaintiff’s Complaint identifies Defendant Walcott as the SCDC Jail Administrator and identifies Defendant
Simmons as the Sevier County Sheriff.

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against Defendants Harrelson, Doe (Betty), Woods, and Chesshir be dismissed with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and 1915A(a).

Judge Bryant concluded that

Plaintiff’s § 1983 claims against Defendants Harrelson and Doe (Betty) fail because public
defenders do not act under color of state law while representing a client in a criminal proceeding.
Judge Bryant also concluded that Plaintiff’s §1983 claims against Defendants Woods and
Chesshir fail because prosecuting attorneys have absolute immunity from suits for damages filed
under 42 U.S.C. § 1983 related to all acts “intimately associated with the judicial phase of the
criminal process.” (ECF No. 18). Judge Bryant recommended that Plaintiff’s claims against
Defendants Walcott and Simmons should proceed. On August 4, Plaintiff timely filed objections
to the Report and Recommendation, as well as a supplement to his objections. 3 On August 18,
Plaintiff filed an additional supplement to his objections.
II. DISCUSSION
Pursuant to the screening provisions of the Prison Litigation Reform Act (“PLRA”), the
Court must review complaints in civil actions in which a prisoner seeks redress from a
government entity or any officers or employees of a government entity. 28 U.S.C. § 1915A(a).
The complaint, or any portion of the complaint, will be dismissed if it: (1) is frivolous or
malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary
relief against a defendant who is immune from such relief. For purposes of this analysis, a
“frivolous” complaint is one that lacks an arguable basis in law and/or fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). To state a claim under 42 U.S.C. § 1983, a plaintiff must “allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.” West v.

3

Plaintiff’s objections are timely because on September 4, 2016, the Court entered an Order granting Plaintiff’s
Motion to Request Extension related to his objection deadline. (ECF No. 22).

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Atkins, 487 U.S. 42, 48 (1988).
According to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues
related to Plaintiff’s specific objections. Plaintiff objects to Judge Bryant’s recommendations
that Plaintiff’s claims against Defendants Harrelson, Doe (Betty), Woods, and Chesshir be
dismissed. 4 The Court will now turn its analysis to each of the defendants at issue here and
discuss whether Plaintiff’s claims against each should be dismissed.
A. Defendant Harrelson and Defendant Doe (Betty)
As stated above, a § 1983 claim must allege that a defendant, acting under color of state
law, deprived the plaintiff of rights, privileges, or immunities secured by the Constitution and
laws of the United States. 42 U.S.C. § 1983; Neitzke, 490 U.S. at 325. Generally, a public
defender does not act under color of state law while representing a plaintiff in a criminal
proceeding. Polk Cnty v. Dodson, 454 U.S. 312, 324 (1981).
Plaintiff objects to Judge Bryant’s recommendation that Defendant Harrelson, a public
defender, and his secretary, Defendant Doe (Betty), were not acting under color of state law. In
his first supplement to his objections to the Report and Recommendation, Plaintiff relies on
White v. State, 277 Ark. 429, 643 S.W.2d 304 (1982) for the proposition that “[t]he accused has
the right to counsel in criminal cases protected by the 6th Amendment to the U.S. Constitution
and Arkansas Constitution, Art. 2, § 10.” (ECF No. 24). Plaintiff further argues that White
“clearly states the defendants are ‘acting under color of statute’ and ‘state law’ while
representing and assisting Plaintiff in his criminal proceeding.” (ECF No. 24). However, White
does not make any reference to a § 1983 claim or contain the words “acting under color of.”
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Plaintiff’s second supplement requests the Court to admonish or remove Judge Bryant from the case, citing 28
U.S.C. § 2254(d) and arguing the Report and Recommendation “was contrary to or involved an unreasonable
application of clearly established law . . . based on an unreasonable determination of the facts.” (ECF No. 32).
Section 2254(d) does not apply here, as it provides the standard for federal courts to issue a writ of habeas corpus for
someone held in state custody due to an erroneous adjudication in state court. The record does not show that
Plaintiff has petitioned for a writ of habeas corpus. Plaintiff is not held in state custody because of Judge Bryant’s
Report and Recommendation, and importantly, Judge Bryant does not sit as the judge of a state court.

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Instead, White concerned a prisoner’s allegations that his conviction should be set aside because
he was underage and under the influence of drugs at the time the crime was committed, and
because he received misleading advice from his attorney. Nothing in White addresses whether a
public defender or court-appointed counsel acted under color of state law. Thus, the Court finds
that Plaintiff’s reliance on White is misplaced.
In an unrelated filing, Plaintiff references Tower v. Glover, which he states “identifies
professionals as state actors.” (ECF No. 53). In Tower, the Supreme Court found that a state
public defender acted under color of state law and thus was not immune from liability under §
1983. Tower v. Glover, 467 U.S. 914, 923 (1984). However, this exception to the general rule
was limited to where public defenders engage in intentional misconduct through alleged
conspiratorial action with state officials to deprive clients of federal rights. Id. Allegations of
conspiratorial action must be made with sufficient specificity and factual support so as to suggest
a “meeting of the minds.” Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985) (quoting Smith
v. Bacon, 699 F.2d 434, 436 (8th Cir. 1983)). It is not enough for a plaintiff to only make
conclusory allegations of a conspiracy. Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988).
In this case, Plaintiff did not make sufficiently specific allegations of conspiratorial
action for the Court to find that Defendants Harrelson and Doe (Betty) acted under color of state
law.

Plaintiff’s initial complaint made no allegations of a conspiracy between Defendant

Harrelson, Defendant Doe (Betty), and state officials. Plaintiff’s amended complaint stated that
SCDC has no law library, and alleged SCDC has no access to a law library through counsel. The
amended complaint stated further, “It seems to me that the prosecutors, as well as the defense,
use these arcane tactics to force people who can’t afford a paid lawyer into taking pleas well
above the range of the law.”

(ECF No. 9).

Plaintiff’s objections to the Report and

Recommendation alleged that “[t]he defendants in this case knew full well of the discrepancies
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in due process violations being committed at the SCDC.” (ECF No. 23). Plaintiff’s first
supplement to his objections argued that the prosecution and defense “knowingly den[ied] the
plaintiff . . . access to law library materials to negate the prosecutions [sic] charges.” (ECF No.
24).
Even when reading Plaintiff’s complaint and objection-related documents with liberality,
the Court does not find Plaintiff’s allegations of conspiratorial conduct to be sufficiently specific.
See White v. Walsh, 649 F.2d 560, 561 (8th Cir. 1981) (instructing courts to read pro se
complaints leniently when determining if allegations provide for relief). Plaintiff offers no
factual support for his allegations. Plaintiff appears to have only made conclusory allegations of
conspiratorial conduct. The Court is thus unpersuaded that Defendants Harrelson and Doe
(Betty) acted under color of state law in their respective capacities as public defender and
secretary. Therefore, the Court finds that Plaintiff’s § 1983 claims against Defendant Harrelson
and Defendant Doe (Betty) fail and are should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(iiii) and 1915A(a).
B. Defendant Woods and Defendant Chesshir
As previously stated, a § 1983 claim must allege that a defendant, acting under color of
state law, deprived the plaintiff of rights, privileges, or immunities secured by the Constitution
and laws of the United States.

42 U.S.C. § 1983; Neitzke, 490 U.S. at 325.

Generally,

prosecuting attorneys have absolute immunity from civil suits for damages filed under 42 U.S.C.
§ 1983. Imbeler v. Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity applies to any
prosecutorial activity that is “intimately associated with the judicial phase of the criminal
process.” Id. at 430. Qualified immunity applies when a prosecutor performs administrative
functions or investigatory functions that do not relate to preparation for the initiation of a
prosecution or judicial proceeding. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
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Plaintiff’s objections appear to quote Imbeler in stating that “[t]he prosecutor has only
qualified (or good faith) immunity for his conduct up to the filing of charges (e.g. investigative
actions) or in administrative actions.” 5 (ECF No. 24). However, neither Plaintiff’s objections
nor the two supplements appear to argue that Defendants Woods and Chesshir are only entitled
to qualified immunity. Plaintiff also does not appear to dispute Judge Bryant’s recommendation
that absolute immunity applies to Defendants Woods and Chesshir. 6 The Court finds that
Defendants Wood and Chesshir, in their individual capacities, have absolute immunity from civil
suits for damages filed under 42 U.S.C. § 1983. See McKay v. City of St. Louis, No. 4:15-CV01315-JAR, 2016 WL 4594142, at *8 (E.D. Mo. Sept. 2, 2016). Therefore, Plaintiff’s claims
against Defendant Woods and Defendant Chesshir in their individual capacities fail and are
should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and 1915A(a).
Absolute immunity extends only to claims against defendants sued in their individual
capacities, and does not bar claims against defendants in their official capacities. See VanHorn
v. Oelschlager, 502 F.3d 775, 778-79 (8th Cir. 2007). A suit against a government official in his
official capacity is “another way of pleading an action against an entity of which an officer is an
agent.” Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978)). Sovereign immunity precludes claims against states, but
not against counties. N. Ins. Co. of N.Y. v. Chatham Cnty, 547 U.S. 189, 193 (2006).
In this case, Plaintiff brings a claim against Defendants Woods and Chesshir in their
official capacities. Defendants Woods and Chesshir are both prosecuting attorneys in Sevier

5

This language does not appear in Imbeler as quoted, and Imbeler ultimately declines to decide whether preprosecution actions are considered advocate functions, thus drawing absolute immunity, or
administrative/investigatory functions, drawing qualified immunity. Imbeler, 424 U.S. at 431 n.33.

6

Even if Plaintiff did make these arguments in relation to the charges filed against him by Defendants Woods and
Chesshir, they would still be entitled to absolute immunity. See Williams v. Hartje, 827 F.2d 1203, 1209 (8th Cir.
1987) (stating the decision of a prosecutor to file charges is a function protected by absolute immunity); Culpepper
v. Smith, 302 Ark. 558, 572, 792 S.W.2d 293, 300 (1990) (same).

7

County, Arkansas. Thus, they are officers of Sevier County, Arkansas. See John Chism Bail
Bonds, Inc. v. Pennington, 656 F. Supp. 2d 929, 935 (E.D. Ark. 2009), aff’d in part, 411 F.
App’x 927 (8th Cir. 2011) (finding an official-capacity claim against a county prosecutor is a
claim against the county in which the prosecutor works). Because Sevier County does not enjoy
sovereign immunity, these § 1983 official-capacity claims may proceed if Plaintiff has
sufficiently alleged that a policy or custom of Sevier County, Arkansas was a “moving force”
behind Defendants Woods and Chesshir’s alleged deprivation of Plaintiff’s federal rights.
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
The Court finds that Plaintiff has not met this burden. Plaintiff has not directly alleged
any policy or custom in connection with his claims against Defendants Woods and Chesshir. As
discussed in the previous section, Plaintiff made conclusory allegations of a conspiracy between
the defendants in this case to deprive Plaintiff and others of their federal rights. Plaintiff
presented no factual support for these allegations. The only policy discussed in Plaintiff’s
complaint is SCDC’s policy that prisoners are given access to the court system through their
attorneys. Plaintiff’s complaint contained no allegations or factual support that this policy was a
“moving force” behind Defendants Woods and Chesshir’s actions, or that the SCDC has a policy
of depriving prisoners of federal rights. 7 Plaintiff appears to concede that rather than provide a
law library, SCDC instead grants prisoners access to law-library materials through their attorney.
Plaintiff alleges that in his case, his public defender failed to provide him such access. This does
not constitute a policy of federal-rights deprivation which was a “moving force” behind
Defendants Woods and Chesshir.

The Court finds that Plaintiff has not made sufficient

7

Plaintiff argued that Defendants Woods and Chesshir violated multiple rules of professional conduct and the
Arkansas Rules of Criminal Procedure by knowingly failing to disclose exculpatory evidence in the form of lawlibrary materials, which would allegedly negate Plaintiff’s guilt. Plaintiff provided no authority stating that lawlibrary materials are considered exculpatory evidence or “information” as provided in Ark. R. Crim. P. 17.1(d). The
Court is unpersuaded by this argument. See Black’s Law Dictionary 635 (9th ed. 2009) (defining evidence as
“[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of
an alleged fact.”).

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allegations to move forward with his official-capacity claims against Defendants Woods and
Chesshir. Therefore, Plaintiff’s claims against Defendant Woods and Defendant Chesshir in
their official capacities fail and should be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and
1915A(a).
III. CONCLUSION
Based on the Court’s de novo review, the Court overrules Plaintiff’s objections (ECF
Nos. 23-24, 32) and adopts the Report and Recommendation in toto. Plaintiff’s claims against
Defendants Harrelson, Doe (Betty), Woods, and Chesshir are DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and 1915A(a). Plaintiff’s claims
against Defendant Walcott and Defendant Simmons remain.
IT IS SO ORDERED, this 25th day of October, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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