Emerson v. McCallum

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 25 REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Tina Emerson. Plaintiffs Complaint should be and hereby is DISMISSED WITH PREJUDICE. The dismissal of this act ion constitutes a strike under 28 U.S.C. § 1915(g). There are eleven motions currently pending: Motion to Proceed In Forma Pauperis 1 , Motion for Default Judgment 11 , Motion to Appoint Counsel 12 ; Motion for Order to Suspend Sentence [13 ]; Motion for Leave to Proceed In Forma Pauperis 21 ; Motion to Join Case 22 ; Motion for Order 23 ; Motion for Order 24 ; Motion for Partial Summary Judgment 26 ; Motion for Order 27 ;Motion for Hearing 28 . Because Plaintiffs complaint is dismissed with prejudice, these remaining motions are DENIED AS MOOT. Signed by Honorable Susan O. Hickey on July 26, 2012. (dmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

TINA EMERSON

VS.

PLAINTIFF

Civil No. 6:11-cv-6085

JUDGE McCALLUM

DEFENDANT
JUDGMENT

Before the Court is the Report and Recommendation filed July 3, 2012, by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 25).
Judge Bryant recommends that the above-styled case be dismissed with prejudice due to Judge
McCallum’s judicial immunity from suit under 42 U.S.C.§ 1983. Rather than filing objections to
the Report and Recommendation, Plaintiff has filed three additional motions and an unrelated brief.1
Objections to a report and recommendation of a magistrate judge must be both timely and specific
to trigger de novo review. See 28 U.S.C. § 636(b)(1). Plaintiff has made no specific objections to
Judge Bryant’s finding that Judge McCallum is immune from suit and the time for doing so has
passed.
“Judges are absolutely immune from suit for money damages when they act in their judicial
capacity, unless their actions are ‘taken in the complete absence of all jurisdiction.” Martin v.
Hendren, 127 F.3d 720, 721 (8th Cir. 1997) (quoting Duty v. City of Springdale, Ark., 42 F.3d 460,
462 (8th Cir. 1994)). Judge McCallum presided over Plaintiff’s case in the Clark County Circuit
Court, and Plaintiff alleges she was appointed defense counsel in that case despite Judge
1

Motion for Partial Summary Judgment (ECF No. 26); Motion for Order (ECF No. 27); Motion
for Hearing (ECF No. 28); and Brief to Support Conviction Unjust (ECF No. 29).

McCallum’s knowledge that the attorney being appointed could not properly defend her. In
presiding over Plaintiff’s case, any actions by Judge McCallum were clearly not taken “in the
complete absence of all jurisdiction.” Quite simply, Judge McCallum may not be sued under the
circumstances which Plaintiff alleges in her complaint.
To the extent that Plaintiff set forth any objections in the pleadings that followed Judge
Bryant’s Report and Recommendation, the Court overrules those objections and adopts Judge
Bryant's Report and Recommendation (ECF No. 25). For the reasons stated herein and above, as
well as those contained in the Report and Recommendation, Plaintiff’s Complaint should be and
hereby is DISMISSED WITH PREJUDICE. The dismissal of this action constitutes a “strike”
under 28 U.S.C. § 1915(g). The Clerk is directed to place a §1915(g) strike flag on the case.
There are eleven motions currently pending: Motion to Proceed In Forma Pauperis (ECF No.
1), Motion for Default Judgment (ECF No. 11), Motion to Appoint Counsel (ECF No. 12); Motion
for Order to Suspend Sentence (ECF No. 13); Motion for Leave to Proceed In Forma Pauperis (ECF
No 21)2; Motion to Join Case (ECF No. 22); Motion for Order (ECF No. 23); Motion for Order (ECF
No. 24); Motion for Partial Summary Judgment (ECF No. 26); Motion for Order (ECF No. 27);
Motion for Hearing (ECF No. 28). Because Plaintiff’s complaint is dismissed with prejudice, these
remaining motions are DENIED AS MOOT.
IT IS SO ORDERED, this 26th day of July, 2012.

/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

2

Judge Bryant found that Plaintiff would qualify for IFP status if this case were to move
forward, however, because Plaintiff’s case is being dismissed, the Motion to Proceed In Forma
Pauperis must be denied.