Baker v. Switzer et al
ORDER adopting 5 Report and Recommendations in toto. Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE. Signed by Honorable Susan O. Hickey on June 21, 2017. (mjm)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Case No. 6:16-cv-6082
DISTRICT COURT JUDGE DAVID
SWITZER; DISTRICT COURT CLERK
VICKIE ALSER; and PROSECUTING
ATTORNEY TERRY HARRIS
Before the Court is the Report and Recommendation filed October 26, 2016, by the
Honorable Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 5. Judge Ford recommends that Plaintiff’s claims against all Defendants be dismissed
without prejudice. Plaintiff has responded with objections. ECF No. 6. The Court finds the
matter ripe for consideration.
Plaintiff is currently incarcerated in the Arkansas Department of Correction, Cummins
Unit, and files this civil action pursuant to 42 U.S.C. § 1983, alleging several constitutional
violations by Defendants in their individual and official capacities. Specifically, Plaintiff alleges
that Defendants suspended his driver's license four times without showing cause. He further
alleges that Defendants ignored his letters, petitions, motions, and affidavits asking to run his
misdemeanor and felony sentences concurrently and to dismiss certain fines and fees.
Judge Ford concluded that because Defendant Terry Harris is a prosecuting attorney, he
is entitled to absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993) (“If
the prosecutor is acting as advocate for the state in a criminal prosecution, then the prosecutor is
entitled to absolute immunity.”); Schenk v. Chavis, 461 F.3d 1043. 1046 (8th Cir. 2006)
("Actions connected with initiation of prosecution, even if those actions are patently improper
are immunized."). Judge Ford further concluded that because Defendant David Switzer is a
district judge, he is immune from suit. See Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994)
(“Judges performing judicial functions enjoy absolute immunity from § 1983 liability.). Judge
Ford also concluded that because Defendant Vickie Alser is a district court clerk, she is immune
from suit. See Boyer v. Cty. of Washington, 971 F.2d 100, 101 (8th Cir. 1992) ("'Court clerks
have absolute quasi-judicial immunity from damages for civil rights violations when they
perform tasks that are an integral part of the judicial process,' unless the clerks acted 'in the clear
absence of all jurisdiction.'") (quoting Mullins v. United States Bankr. Ct., 828 F.2d 1385, 1390
(9th Cir. 1987))). Addressing Plaintiff's official capacity claim, Judge Ford concluded that
Plaintiff has not alleged that his rights were violated by any policy or custom of Garland County
and thus fails to state a cognizable official capacity claim.
In his objections, Plaintiff does not address the issue of immunity and makes no specific
objections regarding the official capacity claims. Plaintiff simply restates his claims against each
Defendant. The Court agrees with Judge Ford’s reasoning and conclusion that Defendants are
entitled to immunity. The Court also agrees with Judge Ford's reasoning and conclusion that
Plaintiff fails to state a cognizable official capacity claim against Garland County.
Accordingly, based on its own de novo review, the Court overrules Plaintiff’s objections
and adopts the Report and Recommendation in toto. ECF No. 5. Plaintiff’s complaint is
DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i-iii) and
IT IS SO ORDERED, this 21st day of June, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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