Chappell v. Paddock et al

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint Referred (42:1983) filed by Daniel A. Chappell, Jr. Objections to R&R due by 4/27/2009. Signed by Honorable James R. Marschewski on April 9, 2009. (src)

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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 A N IE L A. CHAPPELL, JR. v. C iv il No. 09-5046 PLAINTIFF JEROME J. PADDOCK, Chief Deputy Public Defender; BRIAN LAMB, Deputy Prosecuting Attorney; and WILLIAM A. STOREY; Circuit Judge D E FE N D A N T S R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P lain tiff filed this civil rights case pursuant to the provisions of 42 U.S.C. 1983. He proceed s in forma pauperis and pro se. The case is before the court for a determination of whether service of process should issue. B a c kg r o u n d A c co rd in g to the allegations of the complaint, plaintiff was sentenced on November 13, 2 0 0 8 , to two consecutive terms in federal prison, United States v. Chappell, Cr. 5:07-cr-50074-01. O n November 17, 2008, in state court he entered a guilty plea as part of a plea agreement in State o f Arkansas v. Chappell, CR 2007-1856-1. His public defender in his state criminal case was Jero m e Paddock. The prosecuting attorney was Brian Lamb. The state criminal case was before C ircu it Judge William Storey. Plaintiff maintains part of the plea agreement in the state criminal case was that his sentence w ou ld run concurrently with his time served in federal prison. In fact, he indicates his state case had been postponed for over a year for this purpose. The amended judgment and commitment order -1 - AO72A (Rev. 8/82) en tered in, states the "[t]ime is to run concurrent with his time served on federal charges arising out o f the same facts." Plaintiff states he has now been informed that the federal system has chosen to ignore this po rtion of the state criminal judgment. Plaintiff states he would not have accepted the plea agreem e nt in state court had he not been assured that he would do his time in federal prison. Plaintiff maintains he was mislead by the Washington County Circuit Court. He states he was never to ld the State did not have the authority to release him to the United States Marshals. He states he n o w has been told he must serve fourteen years in state prison. There is then a detainer on him for th e federal sentence. If his commitment order was going to change, plaintiff asserts he should be allo w ed to withdraw his plea. Discussion T h is case is subject to dismissal. First, Jerome Paddock is not subject to suit under 1983. A 1983 complaint must allege that each defendant, acting under color of state law, deprived plaintiff of "rights, privileges or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. 1983. DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). Paddock not acting under color of state law while representing Chappell in his criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defender does not act under color of state law when performing traditional functions as counsel). Second, Chappell's complaint as against Brian Lamb is subject to dismissal. The prosecuting attorney is immune from suit. The United States Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976), established the absolute immunity of a prosecutor from a civil suit for damages under 42 U.S.C. 1983 "in -2 - AO72A (Rev. 8/82) initiating a prosecution and in presenting the State's case." Id., 424 U.S. at 427. This immunity extends to all acts that are "intimately associated with the judicial phase of the criminal process." Id., 424 U.S. at 430. See also Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 2615, 125 L. Ed. 2d 209 (1993)(Prosecutor acting as an advocate for the state in a criminal prosecution is entitled to absolute immunity while a prosecutor acting in an investigatory or administrative capacity is only entitled to qualified immunity). Based on the allegations of the complaint, it is clear the defendant prosecuting attorney is entitled to absolute immunity. See also Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir. 1996)(County prosecutors were entitled to absolute immunity from suit). To the extent Chappell's complaint seeks injunctive relief, we find the claim not cognizable. While the Supreme Court has not held that this immunity insulates prosecutors from declaratory or injunctive relief, see Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984), a plaintiff must show some substantial likelihood that the past conduct alleged to be illegal will recur. Chappell can make no such showing here. Further, injunctive relief is not appropriate where an adequate remedy under state law exists. Id., 466 U.S. at 542 & n.22. See also Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975). Third, Circuit Judge William Storey is immune from suit. Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991)("Judicial immunity is an immunity from suit, not just from ultimate assessment of damages."). See also Duty v. City of Springdale, 42 F.3d 460, 462 (8th Cir. 1994). "Judges performing judicial functions enjoy absolute immunity from 1983 liability." Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of -3 - AO72A (Rev. 8/82) his authority." Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). Judicial immunity is overcome in two situations: (1) if the challenged act is nonjudicial; and (2) if the action, although judicial in nature, was taken in the complete absence of all jurisdiction. Mireles, 502 U.S. at 11. It is clear from the allegations of the complaint that neither situation applies here. In the past, claims for declaratory and injunctive relief "have been permitted under 42 U.S.C. 1983 against judges acting in their official capacity." Nollet v. Justices of Trial Court of Com. of Mass., 83 F. Supp. 2d 204, 210 (D. Mass. 2000), aff'd without op., 248 F.3d 1127 (1st Cir. 2000)(citing Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984)). "However, in 1996 Congress passed the Federal Courts Improvement Act ("FCIA"), Pub. L. No. 104-317, Title III 309(c), 110 Stat. 3847, 3853, which legislatively reversed Pulliam in several important respects." Nollet, 85 F. Supp. 2d at 210. As amended by the FCIA 1983 now precludes injunctive relief against a judicial officer "for an act or omission taken in such officer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. 1983. Chappell does not allege that either of these prerequisites for injunctive relief are met. See e.g., Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999)(holding injunctive relief against a quasi-judicial official is barred if the plaintiff fails to allege a violation of a declaratory decree or the unavailability of declaratory relief); Fox v. Lee, 99 F. Supp. 2d 573, 575-576 (E.D. Pa. 2000)(claim for injunctive relief dismissed where plaintiff's complaint fails to allege that either of the prerequisites to injunctive relief were met); Ackermann v. Doyle, 43 F. Supp. 2d 265, 273 -4 - AO72A (Rev. 8/82) (E.D. N.Y. 1999)(dismissing action against judicial officers because plaintiff failed to allege that a declaratory decree was violated or the declaratory relief was unavailable). Thus, to the extent Chappell seeks injunctive relief his claims are subject to dismissal. Furthermore, to be entitled to equitable relief, "plaintiff must show that he has an inadequate remedy at law and a serious risk of irreparable harm." Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385, 1392 (9th Cir. 1987)(citations omitted). Equitable relief is not appropriate where an adequate remedy under state law exists. Pulliam, 466 U.S. at 542 & n. 22, 104 S. Ct. at 1981 & n. 22. See also Sterling v. Calvin , 874 F.2d 571, 572 (8th Cir. 1989). An adequate remedy at law exists when the acts of the judicial officer can be reviewed on appeal or by extraordinary writ. Mullis, 828 F.2d at 1392 (citation omitted). See also Nelson v. Com, 1997 WL 793060, 2 (E.D. Pa. 1997)(appellate review of conviction provides plaintiff an adequate remedy under state law). See also J&M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001)(discussing when a writ of prohibition is appropriate). Finally, to the extent Chappell's complaint seeks relief in the form of release and reversal of his conviction, his complaint is subject to dismissal. Section 1983 cannot be utilized to challenge the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (habeas corpus is exclusive remedy for state prisoner who challenges fact or duration of his confinement and seeks immediate or speedier release). Conclusion Accordingly, I recommend that Chappell's claims be dismissed on the grounds that the claims are frivolous, fail to state claims upon which relief may be granted, and seek relief against -5 - AO72A (Rev. 8/82) defendants who are immune from suit. See 28 U.S.C. 1915(e)(2)(B)(i)-(iii)(IFP action may be dismissed on such grounds at any time). Chappell 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. Chappell 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 9th day of April 2009. /s/ J. Marschewski HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE -6 - AO72A (Rev. 8/82)

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