Reese v. Barnicu et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS 3 , overruling objections, and dismissing case. Plaintiff remains liable for the full filing fee. Signed by Honorable Jimm Larry Hendren on September 17, 2009. (src)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION JEREMY DALE REESE v. Civil No. 09-5153 PLAINTIFF BRYNNA BARNICU, Public Defender; STARK LIGON, Executive Director, Supreme Court of Arkansas Office of Professional Conduct; CAPT. HOLLY; VAN STONE, Prosecutor; NATHAN SMITH, Prosecuting Attorney; STEPHANIE MCLEMORE, Prosecuting Attorney; KEITH FERGUSON, Sheriff; LT. CARTER; and ROBINE GREEN, Judge ORDER Now on this 17th day of September, 2009, DEFENDANTS come on for consideration the Report And Recommendation Of The Magistrate Judge (document #3) and plaintiff's Objections thereto (document #7), and the Court, being well and sufficiently advised, finds and orders as follows: 1. Plaintiff brought suit under 42 U.S.C. 1983, alleging that defendant Barnicu, acting as his defense attorney, forged his name to a plea agreement. He alleges that defendants Ligon, Holly, Stone, Ferguson, and Carter were told about the alleged forgery, but did nothing. He also claims that he was wrongfully charged "with a personal injury accident," and that defendants Mclemore (prosecutor), Smith (prosecutor) and Green (judge) knew or should have known that the charge was wrongful, and that he tried to show Green the alleged forgery but she refused to look into the matter. 2. The Magistrate Judge reported that defendants Green, Stone, Smith, and Mclemore have absolute judicial or prosecutorial immunity from suit, and that defendant Ligon has qualified immunity. He reported that the claim against defendant Barnicu is subject to dismissal because Barnicu was not acting under color of state law in defending plaintiff and 1983 exists only to vindicate constitutional violations committed under color of state law. Finally, he reported that plaintiff's claims against defendants Ferguson, Holly and Carter are subject to dismissal because there is no allegation that they violated any constitutional right. The Magistrate Judge recommended that plaintiff's claims be dismissed as frivolous, as failing to state claims on which relief can be granted, and as seeking relief against defendants who are immune from suit or not acting under color of state law. He further recommended that plaintiff be denied in forma pauperis status, but remain liable for the full filing fee, as provided in the Prison Litigation Reform Act. 3. merit. Plaintiff filed belated Objections, but they are without He basically objects that no one is above the law, which the Court takes to be an objection to the application of absolute judicial immunity, absolute prosecutorial immunity, and qualified immunity. These immunities have been upheld repeatedly by the -2- United States Supreme Court, and plaintiff makes no showing that they are inapplicable in the circumstances of his case. Plaintiff's Objections also reference many exhibits which are not attached to the Objections. However, the descriptions of the exhibits indicate that they would not alter the application of immunity to the claims against Green, Stone, Smith, Mclemore or Ligon. Nor is there anything about them, so far as the Court can tell from the descriptions, that would amount to a statement of a claim as against Ferguson, Holly or Carter. 4. It appears that plaintiff's real complaint is against Barnicu, but he cannot overcome the legal principle that an attorney does not act under color of state law while representing a client, even if paid with state funds. Since 1983 exists only to vindicate constitutional violations committed under color of state law, there is no viable claim against Barnicu under that statute, although it is possible that plaintiff may have recourse in a malpractice claim against her. 5. The Court has fully considered the Report And Recommendation Of The Magistrate Judge, and finds that it is sound and should be adopted in toto. plaintiff's overruled. IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge (document #3) is adopted in toto. Objections are The Court further finds that merit, and they will be without -3- IT IS FURTHER ORDERED that plaintiff's Objections (document #7) are overruled. IT IS FURTHER ORDERED that this matter is dismissed. IT IS FURTHER ORDERED that plaintiff is denied in forma pauperis status, but remains liable for the full filing fee, as provided in the Prison Litigation Reform Act. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE -4-

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