McClure et al v. Davis

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS and denying 1 Motion for Leave to Proceed in forma pauperis ***Civil Case Terminated. Signed by Honorable Robert T. Dawson on July 8, 2013. (tg)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION MONTEGO MCCLURE PLAINTIFF v. Case No. 12-6113 ANDREA L. DAVIS, Attorney, Hot Springs, Arkansas; and JUDGE ROBERT MCALLUM, Ninth Judicial District DEFENDANTS ORDER Now on this 8th day of July 2013, there comes on for consideration the report and recommendation filed herein on April 3, 2013, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. the Court are Plaintiff’s objections. (Doc. 5). Also before (Doc. 7). The court has reviewed this case de novo and, being well and sufficiently advised, finds as follows: Plaintiff’s objection to the portion of the report and recommendation recommending dismissal for his action being barred by the statute of limitations is sustained. Plaintiff timely filed his action within the three year statute of limitations. The report and recommendation is adopted as to the recommendation that Plaintiff’s action be dismissed as Andrea Davis, acting as a public defender, is not subject to suit, and Judge Mcallum is immune from suit. Plaintiff contends he also sued both defendants in their individual AO72A (Rev. 8/82) capacities. The Court has reviewed Plaintiff’s Complaint and presumes Plaintiff only sued defendants in their official capacities, because the complaint does not specifically name then in their individual capacities. F.3d 353 Plaintiff’s (8th Cir. Motion 2012)(citations to Proceed IFP Zajrael v. Harmon, 677 omitted). (doc. 1) Accordingly, is DENIED, and Plaintiff’s Complaint is DISMISSED on the grounds that the claims are frivolous, fail to state claims, and seek relief against defendants who are immune from suit. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). The dismissal of this case will constitute a strike under 28 U.S.C. § 1915(g). The U.S. District Clerk is directed to place a § 1915(g) strike flag on this case. IT IS SO ORDERED. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge AO72A (Rev. 8/82)

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