Allred v. State of Montana et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. The petition is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/30/2013. Mailed to Allred. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

DONALD LYNN ALLRED,

CV 13-160-M-DWM-JCL

Plaintiff,
vs.

ORDER

STATE OF MONTANA, OFFICE OF
PUBLIC DEFENDERS, ED
CORRIGAN, BRENT GETTY, and
VICKI FRAZIER,
Defendants.

Plaintiff Donald Lynn Allred brings this action pursuant to 42 U.S.C.
§ 1983. In Count I of his Complaint, Mr. Allred contends that Defendants the
State of Montana, the Montana Office of the State Public Defender, Flathead
County Attorney Ed Corrigan, and Attorneys Brent Getty and Vicki Frazier,
employed by the Montana Office of Public Defenders, are civilly liable to him for
violating his right to effective assistance of counsel, in violation of the Sixth
Amendment to the United States Constitution.
As Mr. Allred was a prisoner proceeding in forma pauperis at the time this
action was filed, the matter was referred to Magistrate Judge Lynch for screening
pursuant to 28 U.S.C. §§ 1915, 1915A. Judge Lynch issued Findings and

Recommendations regarding Mr. Allred's Complaint on August 15,2013. Judge
Lynch recommends that Mr. Allred's Complaint be dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), written objections to Judge Lynch's Findings
and Recommendations were due September 3,2013. No objections were filed.
The Court reviews the Findings and Recommendation entered by a United
States Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore

Bus. Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981). Clear error is present only
if the Court is left with a "definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
After a review of Judge Lynch's Findings and Recommendation, I find no
clear error. The State of Montana and the Montana Office of the State Public
Defender are immune from suits by an individual for monetary damages under the
Eleventh Amendment to the United States Constitution. Hans v. Louisiana, 134
U.S. 1, 13 (1890). Flathead County Attorney Ed Corrigan is entitled to
prosecutorial immunity for his actions at issue in this matter. See Kalina v.

Fletcher, 522 U.S. 118, 131 (1997). Mr. Getty and Ms. Frazier, when performing
their duties. as attorneys employed by the Montana Office of the State Public
Defender, are not state actors within the ambit of an action brought under 42
U.S.C. § 1983. See Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003)

(en bane). In addition to lacking a proper defendant, Mr. Allred's Complaint

challenges ongoing criminal proceedings and is accordingly barred. Younger v.
Harris, 401 U.S. 37,45 (1971).
Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (doc. 5) are ADOPTED IN FULL. The petition is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a
separate document judgment in favor of Respondents and against Petitioner and
shall close this case.
DATED

thi~j

t.day of September 2013.

/
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Donald WI: M loy, District Judge
United ~tates .strict Court

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