Stewart v. Washington County Circuit Courts

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint Referred (42:1983) filed by Donnie L Stewart. Objections to R&R due by 7/6/2007. Signed by Judge James R. Marschewski on June 19, 2007. (ct)

Stewart v. Washington County Circuit Courts

Doc. 5

Case 5:07-cv-05104-JLH

Document 5

Filed 06/19/2007

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IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS FA Y E T T E V ILLE DIVISION

D O N N IE L. STEWART, JR. v. WASHINGTON COUNTY CIRCUIT COURT, JUDICIAL D IS T R IC T 4 C iv il No. 07-5104

PLAINTIFF

D E FE N D A N T

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n June 6, 2007, Donnie L. Stewart, Jr., currently a detainee of the Washington County D etention Center, filed this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se an d in forma pauperis. The case is before the undersigned for a determination of whether service of process should issue. D IS C U SS IO N In his complaint, Stewart alleges that he has been prosecuted for many prior felonies. He co n ten d s these prosecutions violated his civil rights. Stewart wants the prosecutions removed from an y state or federal record. S tew art's complaint is subject to dismissal.

First, "state courts as entities are not

vulnerable to a § 1983 suit because they are protected by immunity under the eleventh amendment." Mildfelt v. Circuit Court of Jackson County, Mo., 827 F.2d 343, 345 (8th Cir. 1987). Moreover, it has been held that state courts are not "persons" subject to suit under § 1983. See e.g., Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997); Zuckerman v. Appellate Div., 421 F.2d 625, 626 (2nd Cir. 1970); Kinney v. City of Cleveland, 144 F. Supp. 2d 908 (N.D. Ohio 2001).

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Case 5:07-cv-05104-JLH

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Filed 06/19/2007

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Second, to the extent Stewart's complaint can be read to be asserting a claim for damages, a state court and its members are immune from a suit for damages for judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991). Finally, to the extent Stewart challenges actions taken by the state courts, those claims fail. "[T]he United States Supreme Court alone has jurisdiction to review state court decisions. [T]he lower federal courts lack subject matter jurisdiction to consider federal claims that would vitiate an underlying state court judgment." Johnson v. City of Shorewood, Minnesota, 360 F.3d 810, 818 (8th Cir. 2004)(citations omitted). CONCLUSION I recommend that this action be dismissed for failure to state a claim and because it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i)- (iii) (in forma pauperis action may be dismissed on such grounds at any time). Stewart has ten days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. Stewart is reminded that objections must be both timely and specific to trigger de novo review by the district court.
D A T E D this 19th day of June 2007. /s/

J. Marschewski

HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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