United States District Court, W.D. Arkansas, Hot Springs Division
O. HICKEY, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation filed June 26,
2017, by the Honorable Mark E. Ford, United States Magistrate
Judge for the Western District of Arkansas. ECF No. 60.
Objections to Judge Ford's Report and Recommendation were
due by July 10, 2017. On July 11, 2017, Plaintiff filed
Plaintiffs' Objections to Magistrate Judge's Report
and Recommendation and Motion for Reconsideration. ECF No.
61. Plaintiff's objections were not timely filed and are
not directly responsive to the Report and Recommendation and
raise no specific objections for the Court to consider.
Accordingly, the Court overrules Plaintiff's objections
and adopts Judge Ford's Report and Recommendation insofar
as he recommends that Plaintiff's individual-capacity
claim be dismissed with prejudice as Defendant is shielded by
absolute prosecutorial immunity.
after reviewing the Report and Recommendation, the Court
notes that Judge Ford failed to address Plaintiff's
official-capacity claim. Accordingly, the Court finds that
this matter requires further consideration.
filed this matter on September 30, 2014, under 42 U.S.C.
§ 1983. ECF No. 1. Plaintiff seeks compensatory damages,
punitive damages, and attorney's fees. ECF No. 1, pp. 20,
22. Plaintiff's claims arise from the fact that he was
convicted twice for the same Fleeing offense-once in Hot
Spring County, Arkansas, and subsequently in Garland County,
Arkansas. On July 22, 2009, Plaintiff was sentenced to three
years' probation for Fleeing in Hot Spring County,
Arkansas. ECF No. 55, ¶ 18; ECF No. 59, ¶ 18.
However, on June 29, 2009, Defendant in his capacity as
prosecutor for the Eighteenth Judicial District charged
Plaintiff, in the Circuit Court of Garland County, Arkansas,
by criminal information with Fleeing. ECF No. 53-4. Those
charges were based on the same events underlying
Plaintiff's conviction in Hot Spring County, Arkansas.
ECF No. 53-4. Plaintiff subsequently entered a guilty plea in
the Garland County Circuit Court and was sentenced to
eighteen months' incarceration in the Arkansas Department
of Correction. ECF No. 58, p. 1; ECF No. 55, ¶ 23; ECF
No. 59, ¶ 23.
on September 23, 2011, the Honorable John Homer Wright
vacated Plaintiff's Garland County, Arkansas, conviction
upon a finding that “the Garland Circuit conviction for
Fleeing violated Westfall's Fifth and Fourteenth
Amendment right against double jeopardy, because he had
already been convicted of the same offense for the same
conduct in Hot Spring County.” ECF No. 53-5, p. 2. The
order vacating Plaintiff's sentence was filed on October
5, 2011. ECF No. 53-5.
Complaint, Plaintiff brought suit against Defendant in both
his official and individual capacities. ECF No. 1, p. 8.
Plaintiff claims that Defendant “used court papers from
H.S. County after sentenced to obtain warrant then tried
again on same crime and sentenced again.” ECF No. 1,
pp. 7-8. Subsequently, on February 10, 2017, Defendant filed
a Motion for Summary Judgment. ECF No. 53. That motion was
referred to Judge Ford, who now recommends that
Defendant's Motion for Summary Judgment be granted and
this matter be dismissed with prejudice, as “Defendant
is shielded by absolute immunity for his conduct as
prosecuting attorney in preparing and filing the Information
against Plaintiff in Garland County.” ECF No. 60, p. 6.
objections do not address Judge Ford's conclusion that
Defendant is shielded by prosecutorial immunity.
Plaintiff's objections simply state, in relevant part:
Plaintiff objects to the Magistrate Judge's Report and
Recommendation and requests reconsideration from the Court.
Plaintiff submits the evidence is clear that the prosecuting
attorney's office in this matter had knowledge of the
information filed in Hot Spring County and also had knowledge
of Plaintiff's arrest in Hot Spring County. Plaintiff
submits the officer's report that caused Plaintiff's
arrest in both counties was the same report as it was the
same arresting officer. The State had to have known that
Plaintiff suffered prosecution in Hot Spring County for the
exact same facts he was prosecuted for in Garland County. The
State had to have conducted some kind of preliminary
investigation before prosecuting Plaintiff in Garland County
and had to have reviewed the Hot Spring County reports,
pleadings and information. Plaintiff was sent to the
penitentiary for a crime for which he voluntarily pled guilty
to and previously accepted responsibility for.
ECF No. 61.
Federal Rules of Civil Procedure provide that when a party
moves for summary judgment “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
Supreme Court has issued the following guidelines for trial
courts to determine whether this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); see also Agristor Leasing v. Farrow, 826
F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v.
Paper Indus. Union-Mgmt. Pension Fund, 800 F.2d 742, 746
(8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S.
at 248. A dispute is genuine if the evidence is such that ...