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Stacher v. Russo

United States District Court, W.D. Arkansas, Harrison Division

April 20, 2016

KRISTOFER W. STACHER, PLAINTIFF
v.
JOHN RUSSO, Public Defender's Office; CHRISTOPHER CARTER, Boone County Prosecuting Attorney; JUDGE GORDAN WEBB; and JUDGE JOHN PUTMAN, DEFENDANTS

OPINION AND ORDER

TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

Plaintiff Kristofer W. Stacher filed this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the Varner Unit of the Arkansas Department of Correction.

This matter is presently before the Court for initial screening of Plaintiff's pleading pursuant to 28 U.S.C. § 1915A. For the reasons discussed below, the Court finds that this action should be summarily dismissed pursuant to Section 1915A and Section 1915(e)(2)(B).

I. BACKGROUND

According to the allegations of the Complaint (Doc. 1), Plaintiff was sentenced by Judge Webb to five years of probation beginning in November or December of 2011. In June of 2012, Plaintiff's probation was revoked, and Judge Webb sentenced Plaintiff to a term of eight months of incarceration to be served at the Boone County Detention Center.

Plaintiff alleges that in 2012, on some unspecified date, a hearing was held by Judge Putnam, outside Plaintiff's presence, on a nunc pro tunc motion; at which time, Plaintiff was sentenced to five years of probation. Plaintiff maintains Judge Putnam had no jurisdiction over his case.

In February of 2013, Plaintiff alleges he was released and instructed to report to the probation office. At his first visit, Plaintiff asked his probation officer, Christian Dukes, when his probation would be over and was told in September of 2017.

On November24, 2013, Plaintiff was arrested on a probation revocation warrant and incarcerated at the Boone County Detention Center. John Russo was appointed to represent Plaintiff. Chris Carter was the prosecuting attorney. Plaintiff alleges the initial sentencing order entered in 2011 was illegal. Plaintiff maintained that his probation should have been over at the time.

Plaintiff was released on his own recognizance on February 7, 2014. While he was in court, Plaintiff alleges that Chris Carter moved to dismiss the probation revocation charge and that John Russo agreed to the dismissal without discussing it with the Plaintiff.

On February 19, 2015, Plaintiff indicated he was arrested on various criminal charges which were later dismissed. However, in the interim, a motion was made to revoke his probation. He was arrested on the probation revocation warrant on September 15, 2015. On September 25, 2015, Plaintiff was sentenced, without the benefit of a hearing, to five years in the Arkansas Department of Correction. Plaintiff indicates he immediately informed John Russo that he wanted to appeal. Plaintiff states that on December 6, 2015, by letter, he again advised John Russo that he wanted to appeal the sentencing.

As relief, Plaintiff asks that: he be granted liberty; the named Defendants be prosecuted; and he be granted an award of damages.

II. LEGAL STANDARD

Under the Prison Litigation Reform Act (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 ...


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