White et al vs. Jay Finch, et al

Filing 15

ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS and dismissing plaintiff's complaint with prejudice. Signed by Honorable Jimm Larry Hendren on February 15, 2012. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CHRISTOPHER NEWTON WHITE and
HELEN LOUISE WHITE
v.

PLAINTIFF

No. 11-5189

JUDGE JAY FINCH, ET AL.

DEFENDANTS
O R D E R

NOW

on

this

15th

day

of

February

2012,

comes

on

for

consideration the Report and Recommendation of the Magistrate Judge
(Doc. 11), and the Objection filed by plaintiff Christopher Newton
White (Doc. 14). The Court, having reviewed the Magistrate Judge’s
Report and Recommendation and plaintiff’s Objection thereto, finds
and orders as follows:
1.

Plaintiffs are proceeding pro se and in forma pauperis.

Plaintiffs filed their complaint on August 5, 2011, under the Civil
Rights Act, 42 U.S.C. § 1983.

Plaintiffs’ claims arise out of a

decision made by Judge Finch on September 17, 2003, to terminate
Christopher Newton White’s parental rights to his two biological
children. Mr. White did not appeal Judge Finch’s Order terminating
his parental rights.
On

November

25,

2008,

the

sought,

and

Judge

Finch

Services

Arkansas

Department

entered,

a

of

Human

retaining

order

prohibiting plaintiffs and other members of the White family from,
inter

alia,

children.

having

any

contact

with

Mr.

White’s

biological

2.

As the Magistrate Judge pointed out in her Report and

Recommendation, plaintiffs’ claims are barred for the following
reasons:
*

the applicable three-year statute of limitations has run
on

plaintiffs’

claims

related

to

the

2003

Order

terminating parental rights;
*

the Rooker-Feldman doctrine precludes this Court’s review
of plaintiffs’ claims related to the 2003 Order;

*

Judge Finch and Brenda DeShields, the Benton County
Clerk, are entitled to immunity for their actions; and

*

Ken Farris, Connie Farris, Billy Fouts and Tammy Fouts
(the

adoptive

parents

of

Mr.

Newton’s

biological

children) are not state actors and, thus, cannot be sued
under 42 U.S.C. § 1983.
3.

Mr. Newton has filed an Objection to the Magistrate Judge

Report and Recommendation in which he asserts that his claims
against Tammy Mullins (Attorney for DHS), Candance Gonzales (DHS
social worker) and Billy and Tammy Fouts (adoptive parents) related
to the events that transpired in 2008 were filed within three years
of those events and, thus, are not barred by the statute of
limitations.
While the Court agrees that plaintiffs’ complaint was filed
within three years of the 2008 Order, plaintiffs’ claims are still
barred because Tammy Mullins and Candace Gonzales are entitled to
qualified immunity for their actions in pursuing and obtaining the

restraining order that was subsequently entered by Judge Finch.
See Dornheim v. Sholes, 430 F.3d 919, 925-26 (8th Cir. 2005)
(dismissing complaint against state social worker where the fact of
immunity was established on the face of the complaint).
Further, as set forth above, Billy Fouts and Tammy Fouts are
not state actors and, thus, cannot be sued under 42 U.S.C. § 1983.
4.

Mr. Newton has also submitted other objections, none of

which provide any basis, in fact or law, for the Court to reject
the Magistrate Judge’s recommendation.
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge (Doc. 11) is adopted in toto.
IT IS FURTHER ORDERED that, for the reasons stated in the
Magistrate Judge's Report and Recommendation, plaintiff’s complaint
is hereby DISMISSED WITH PREJUDICE.
The Clerk is ordered to place an appropriate strike flag on
this case pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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