Stewart v. Cebull
Filing
11
OPINION AND ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Stewart's Complaint and AmendedComplaint are DISMISSED WITH PREJUDICE. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 11/20/2014. Mailed to Stewart. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WALTER MITCHELL STEWART,
JR.,
Plaintiff,
OPINION AND ORDER
vs.
RICHARD CEBULL,
Defendant.
Plaintiff Walter Stewart filed a complaint against former United States
District Judge Richard Ce bull. (Doc. 1). In his Amended Complaint, Stewart
alleged that Judge Cebull violated his rights and did not have jurisdiction to try
him. (Doc. 4 at 3-4). Stewart is proceeding pro se and in forma pauperis.
Magistrate Judge Ostby recommends dismissing Stewart's Complaint and
Amended Complaint with prejudice. (Doc. 6).
Stewart timely filed his objections to Magistrate Judge Ostby's Findings and
Recommendations, (Doc. 10), and is therefore entitled to de novo review of the
specified findings and recommendations to which he objects. 28 U.S.C. §
636(b)(l).
Stewart's objections essentially reiterate the basic allegations made in his
Complaint and Amended Complaint: that is, that Judge Cebull was unprofessional
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and made racial statements to Stewart and violated his Constitutional rights
because Judge Cebull allegedly did not have jurisdiction to try Stewart. (Doc. 4 at
3-4; Doc. 10 at 1). As explained in Magistrate Judge Ostby's Findings and
Recommendations, however, Stewart's claims are precluded by judicial immunity
and otherwise barred by case law. (Doc. 6 at 5-8).
Magistrate Judge Ostby correctly pointed out that Judge Cebull's actions
about which Stewart complains were judicial in nature and within his official
duties, thus immunizing him from Stewart's suit. (Id.) (citing Cleavinger v.
Saxner, 474 U.S. 193, 199-200 (1985)). Additionally, Magistrate Judge Ostby is
correct that the United States Supreme Court barred civil claims like Stewart's
when the underlying criminal conviction has not been overturned. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Neither Stewart's conviction nor his
sentence has been reversed on direct appeal, or otherwise been declared invalid,
thus his civil claim regarding the same is barred. Id. at 487. Stewart's allegations
lack merit under the law and will be dismissed.
After a de novo review of Magistrate Judge Ostby's findings and
recommendations, IT IS ORDERED that the Findings and Recommendations
(Doc. 6) are adopted in full.
IT IS FURTHER ORDERED that Stewart's Complaint and Amended
Complaint are DISMISSED WITH PREJUDICE.
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The Clerk of Court is directed to close this case and enter judgment in favor
of the Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure. The
Clerk of Court is further directed to have the docket reflect that this dismissal
counts as a strike pursuant to 28 U.S.C. § 1915(g) because Stewart's Complaint is
frivolous.
The Clerk of Court is also directed to have the docket reflect that the Court
certifies pursuant to Fed.R.App.P. 24(a)(3)(A) that any appeal of this decision
would not be taken in good faith. The record makes plain the instant Complaint is
frivolous as it lacks arguable substance in law or fact.
'Yl...;LDATED this~ day of November 2014,/1
~eW~,,---
'susANP. WATTERS
United States District Judge
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