United States District Court, W.D. Arkansas, Hot Springs Division
January 22, 2015
RYAN ALLEN NUTT PLAINTIFF
LYNN BENEDICT, Retired, Trooper, Arkansas State Police; JIMMY O. THOMAS, Trooper, Arkansas State Police; JANA BRADFORD, Deputy Prosecuting Attorney; BRYAN CHESSHIR, Prosecuting Attorney; and CLAY JANSKE, Attorney DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. He proceeds in forma pauperis and pro se.
The case is before me for preservice screening under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to
screen any complaint in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
According to the allegations of the Complaint, on September 11, 2011, Plaintiff was
arrested and charged with the second degree murder of Christopher Palmer. Palmer died of a
stab wound in his leg inflicted by the Plaintiff. Among the officials at the scene were Troopers
Lynn Benedict and Jimmy O. Thomas of the Arkansas State Police.
The first officer on the scene was Officer Shona Jordan. When she entered the house,
she found a man, later identified as Christopher Palmer, lying in a pool of blood and another
man, later identified as the Plaintiff, beside him holding pressure on the wound. Plaintiff
admitted to stabbing Palmer.
Trooper Benedict took the lead in the investigation having Plaintiff sign a Miranda rights
form and a permission to search form. Troopers Benedict and Thomas interviewed the Plaintiff.
During the interview, Plaintiff maintains Trooper Benedict exhibited bias when he took the word
of eyewitnesses over that of the Plaintiff.
Plaintiff maintains the witness statements prove he acted in self-defense or committed
manslaughter at best. However, due to the bias of Trooper Benedict, Plaintiff states he was
charged with second degree murder.
Plaintiff maintains Trooper Benedict had a conflict of interest and should not have been
involved in the investigation of the case. Specifically, Plaintiff asserts that Trooper Benedict was
married to Cathy Palmer who was the second or third cousin of the victim. Plaintiff maintains
Trooper Benedict knowingly concealed this fact.
Plaintiff asserts that Trooper Thomas was aware of the conflict and failed to intervene.
In fact, Trooper Thomas was present during the interview of the Plaintiff but played only a
minimal role in the questioning.
With respect to the prosecuting attorneys, Plaintiff maintains they engaged in misconduct
when they knowingly used false or misleading evidence, biased accounts of the events, and
otherwise used evidence they knew to be tainted or biased in the prosecution of the Plaintiff.
With respect to Clay Janske, his attorney, Plaintiff maintains he failed to properly investigate the
facts and people involved and failed to find the conflict of interest.
Plaintiff maintains Trooper Benedict's conduct violated Plaintiff's rights to remain free
from cruel and unusual punishment as well as denied him due process and a fair trial. As relief,
Plaintiff seeks an award of compensatory and punitive damages as well as injunctive and
Plaintiff is currently incarcerated in the Arkansas Department of Correction. He is
serving a sentence of 360 months on the second degree murder conviction.
Under the PLRA, the Court is obligated to screen the case prior to service of process
being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that:
(a) are frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c)
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if " it lacks an arguable basis either in law or fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be
granted if it does not allege " enough facts to state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). " In evaluating whether a pro se
plaintiff has asserted sufficient facts to state a claim, we hold 'a pro se complaint, however
inartfully pleaded, . . . to less stringent standards than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)(quoting Erickson v. Pardus, 551 U.S. 89,
This case is subject to dismissal. First, the claims against Prosecuting Attorney Bryan
Chesshir and Deputy Prosecuting Attorney Jana Bradford are subject to dismissal. The
prosecuting attorneys are immune from suit. The United States Supreme Court, in Imbler v.
Pachtman, 424 U.S. 409, 431 (1976), established the absolute immunity of a prosecutor from a
civil suit for damages under 42 U.S.C. § 1983 " in initiating a prosecution and in presenting the
State's case." Id., 424 U.S. at 427. This immunity extends to all acts that are " intimately
associated with the judicial phase of the criminal process." Id., 424 U.S. at 430; see also Buckley
v. Fitzsimmons, 509 U.S. 259 (1993)(Prosecutor acting as an advocate for the state in a criminal
prosecution is entitled to absolute immunity while a prosecutor acting in an investigatory or
administrative capacity is only entitled to qualified immunity). Based on the allegations of the
complaint, it is clear the Defendant prosecuting attorneys are entitled to absolute immunity. See
also Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir. 1996)(County prosecutors were entitled
to absolute immunity from suit).
To the extent the complaint seeks injunctive relief, I find the claim not cognizable. While
the Supreme Court has not held that absolute immunity insulates prosecutors from declaratory
or injunctive relief, see Pulliam v. Allen, 466 U.S. 522 (1984), a Plaintiff must show some
substantial likelihood that the past conduct alleged to be illegal will recur. Plaintiff can make
no such showing here.
Second, the claims against Clay Janske are subject to dismissal. A § 1983 complaint
must allege that each defendant, acting under color of state law, deprived plaintiff of " rights,
privileges or immunities secured by the Constitution and laws" of the United States. 42 U.S.C.
§ 1983; DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). Neither private attorneys nor public
defenders act under color of state law while representing criminal defendants. Polk County v.
Dodson, 454 U.S. 312, 318 (1981) (public defender does not act under color of state law when
performing traditional functions as counsel); DuBose, 187 F.3d at 1002-03 (Private attorneys do
not act under color of law and are not subject to suit under § 1983); Dunn v. Hackworth, 628
F.2d 1111, 1112 (8th Cir. 1980)(" The actions of privately retained counsel are not considered
state action and therefore cannot form the basis of a § 1983 claim").
Third, the Plaintiff may not pursue claims against Trooper Benedict or Trooper Thomas
based on alleged false statements or testimony. Witnesses at criminal proceedings are entitled
to absolute immunity. Briscoe v. LaHue, 460 U.S. 325 (1983)(A witness at trial has absolute
immunity from suit under § 1983 for giving false testimony damaging to a subject of that
Finally, any remaining claims against Trooper Benedict or Trooper Thomas based on the
Plaintiff's arrest and his criminal prosecution, are not presently cognizable. In Heck v.
Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a claim for damages for " allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid" is not cognizable until " the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination, or called into question by a
federal court's issuance of a writ of habeas corpus." Id., at 486-87.
Plaintiff's claims call into question several aspects of the investigation and criminal
prosecution against him. Clearly, these claims cannot proceed at this time.
For the reasons set forth above, I recommend that this case be dismissed as all claims
asserted are frivolous, fail to state claims upon which relief may be granted, are asserted against
individuals immune from suit, or are not presently cognizable in a civil rights action. See 28
U.S.C. § 1915(e)(2)(B)(i)- (iii) ( in forma pauperis action may be dismissed on such grounds at
The Plaintiff has fourteen (14) days from receipt of the report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file
timely objections may result in waiver of the right to appeal questions of fact. The Plaintiff
is reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 22nd day of January, 2015.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE