Watkins v. Garrett

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS in toto for 8 Report and Recommendations. Further, directing Clerk to assess filing fee and collect funds from Prison Account of Kyron Watkins. Dismissing with prejudice. Motions terminated: 7 MOTION t o Appoint Counsel MOTION for Jury Trial filed by KyRon Watkins, 6 MOTION to Amend/Correct 2 Complaint filed by KyRon Watkins, 1 MOTION for Leave to Proceed in forma pauperis filed by KyRon Watkins. ***Civil Case Terminated. Signed by Honorable Jimm Larry Hendren on June 22, 2010. (dmc)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION KYRON WATKINS v. Civil No. 09-6077 PLAINTIFF

RICHARD GARRETT, Prosecuting Attorney, Hot Springs Circuit Court ORDER Now on this 22nd day of June, 2010, comes

DEFENDANT

on

for

consideration the Report And Recommendation Of The Magistrate Judge (document #8) in this matter, and plaintiff's Brief Response To Report And Recommendation Of The Magistrate Judge

("Objections") (document #9), and the Court, being well and sufficiently advised, finds and orders as follows: 1. In this petition brought pursuant to 42 U.S.C. § 1983,

plaintiff KyRon Watkins ("Watkins") alleges that defendant Richard Garrett ("Garrett"), the prosecuting attorney who obtained his conviction, violated his Fourteenth Amendment rights by referring to his co-defendant during cross-examination as "that little monkey that sits around and just sees no evil." He contends that

the same reference was made during closing argument. 2. The Magistrate Judge reported that Garrett, as a

prosecuting attorney, has absolute immunity for actions occurring during the prosecution of a criminal case, and recommended that Watkins' claim be dismissed.

3.

Watkins first objects that he has not been notified who

the judge presiding over his case is, and that he believes he is entitled to such information "before any rulings occur." There is no such requirement, however, and this objection is without merit. 4. Watkins next objects that he did not consent to the

jurisdiction of the Magistrate Judge in this matter, "even to write a report and recommendation." This objection is without This Court may

merit because his consent is not necessary.

designate a Magistrate Judge to submit "proposed findings of fact and recommendations for disposition . . . posttrial offenses." 5. relief made by individuals of applications for of criminal

convicted

28 U.S.C. § 636(b)(1)(B). Watkins next objects that Garrett is no more entitled to

immunity for his comments than Don Imus when he made an illconsidered remark on air. explained by the United The law is to the contrary, as fully States Supreme Court in Imbler v.

Pachtman, 424 U.S. 409 (1976) ("in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983"). This objection is without merit. 6. Finally, Watkins objects that this Court might feel like

it is "placed between a rock and a hard spot when he is suppose [sic] to be for the state" in deciding this case because "the District Court is state and Plaintiff is sueing [sic]

representatives of the state."

This objection is without merit.

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If this Court had any preconceived notion about the outcome of the matter -- which it did not -- it would be obliged to recuse. In

addition, this Court is not "state," as Watkins suggests, nor "supposed to be for the state" in any sense. This is a United

States District Court, the judges of which -- like the undersigned -- are appointed by the President of the United States. 7. Finally, the Court notes that Watkins has two other

pending motions, one for appointment of counsel and trial by jury, and one for leave to amend. The proposed amendment would add as defendants Eddy Easely, Prosecuting Attorney; Teresa Howell, Prosecuting Attorney; Phyllis Lemons, Public Defender; and Chris Williams, Judge. The

Magistrate Judge considered whether such an amendment should be allowed, and reported that it should not, because similar

immunities cover Easely, Howell, and Williams, and Lemons is not a state actor covered by § 1983. The Court agrees. Leave to

amend is freely given, but where an amendment would be futile, as here, it need not be allowed. Dennis v. Dillard Department

Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000). The motion for appointment of counsel and trial by jury is without merit, in that Watkins' complaint -- as explained in §5 -is barred by Supreme Court precedent. Having a trained lawyer to

represent him would not change that fact.

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IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge is adopted in toto. IT IS FURTHER ORDERED that, for the reasons stated in the Report And Recommendation Of The Magistrate Judge, Watkins' claim is dismissed with prejudice. IT IS FURTHER ORDERED that the Clerk of Court place the appropriate case flag on this case to indicate that it counts as a "strike" pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g). IT IS FURTHER ORDERED that the Clerk of Court collect the full $350.00 filing fee from Watkins in this matter. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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