Sherman v. Clark County et al

Filing 19

ORDER adopting 17 Report and Recommendations. Plaintiff's complaint is hereby dismissed. Signed by Honorable Susan O. Hickey on June 27, 2013. (adw)

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

PATRICK SHERMAN

vs.

PLAINTIFF

Civil No. 13-cv-6017

CLARK COUNTY; HENRY MORGAN,
Former Prosecuting Attorney for Clark County;
FORMER JUDGE DUB ARNOLD; JEFFERSON
COUNTY; JUDGE JODI DENNIS; JUDGE
ROBERT H. WYATT, JR., JUDGE ROBERT
R. McCALLUM; PROSECUTING ATTORNEY
BLAKE BATSON; JUDGE CHRIS WILLIAMS;
PROSECUTING ATTORNEY EDDY EASLEY;
OMEGA TECHNICAL VIOLATOR CENTER,
Department of Community Correction; PULASKI
COUNTY; and the ARKANSAS DEPARTMENT
OF CORRECTION

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed June 18, 2013 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 17). Judge Bryant recommends that Plaintiff’s claims be dismissed pursuant to 28.
U.S.C. § 1915. Plaintiff has filed an objection. (ECF No. 18). The matter is ripe for the Court’s
consideration. After reviewing the record de novo, the Court finds that Judge Bryant’s Report
and Recommendation should be adopted in its entirety.
Plaintiff’s complaint alleges violation of his Fourth Amendment rights and violation of
the Double Jeopardy clause of the United States Constitution related to a conviction in 1995 that
resulted in his incarceration. Judge Bryant recommends dismissal of Plaintiff’s complaint for
five reasons: (1) his claims against Defendants Henry Morgan, Blake Batson, and Eddy Easley

are barred based on prosecutorial immunity; (2) his claims against Defendants Dub Arnold, Jodi
Dennis, Robert Wyatt, Jr., Robert R. McCallum, and Chris Williams are barred based on judicial
immunity; (3) all of his claims are barred by the statute of limitations; (4) his claims against
Omega Technical Violator Center, an Arkansas Department of Community Correction facility,
and the Arkansas Department of Correction are barred on sovereign immunity grounds; and (5)
his claims against all Defendants constitute an improper challenge of his conviction under § 1983
because the conviction has never been called into question by any court.
Plaintiff does not appear to object to Judge Bryant’s report as to the dismissal of
Defendants Henry Morgan, Blake Batson, Eddy Easley, Dub Arnold, Jodi Dennis, Robert Wyatt,
Jr., Robert R. McCallum, Chris Williams, Omega Technical Violator Center, an Arkansas
Department of Community Correction facility, and the Arkansas Department of Correction. He
does, however, object to the dismissal of Defendants Clark County, Jefferson County, and
Pulaski County. Plaintiff argues that his claims against these Defendants are not barred by
sovereign immunity because these Defendants are municipalities, not agencies of the state, and
that the statute of limitations has not even begun to run on his claims.
Despite Plaintiff’s objections, his claims against Clark County, Jefferson County, and
Pulaski County must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). In Heck,
the Court held:
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas corpus.
Id. at 486. In this case, Plaintiff is attempting to recover civil damages under § 1983 for his
alleged unlawful conviction under both the Fourth Amendment and the Double Jeopardy clause.

Yet, he has not asserted that his conviction has been rendered invalid or called into question by
any court. Therefore, pursuant to Heck, his claims—even against Clark, Jefferson, and Pulaski
counties—are not cognizable.
Accordingly, the Court hereby adopts Judge Bryant’s Report and Recommendation in
full, and Plaintiff’s complaint should be and hereby is DISMISSED.
IT IS SO ORDERED, this 27th day of June, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge