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)

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)