United States District Court, E.D. Arkansas, Helena Division
PROPOSED FINDINGS AND RECOMMENDED
following Proposed Findings and Recommended Disposition
(“Recommendation”) have been sent to United
States District Judge James M. Moody, Jr. You may file
written objections to all or part of this Recommendation. If
you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
5, 2018, Plaintiff David Librace (“Librace”)
filed a Motion for Leave to Proceed In Forma
Pauperis and this pro se § 1983 action
alleging that Defendants violated his constitutional rights.
Docs. 1 and 2. The case has been referred for
recommended disposition. Doc. 3.
Librace is not a prisoner, his § 1983 Complaint must be
screened pursuant to 28 U.S.C. § 1915(e)(2), rather than
under the counterpart provisions of the Prison Litigation
Reform Act. Pursuant to the screening function mandated by 28
U.S.C. § 1915(e)(2),  the Court has carefully considered the
Complaint and finds that Librace's claims are legally
frivolous, fail to state a claim upon which relief may be
granted, and seek monetary relief against defendants immune
from such relief.
alleges that, in December of 1999, the State Attorney Office
for the 1st Judicial Circuit of Florida (“Florida State
Attorney Office”) filed an amended plea and probation
stipulation in a criminal case against him without a hearing
and without notifying Librace or his counsel. He further claims
that some thirteen years later, on April 7, 2015, the Florida
Department of Law Enforcement (“FDLE”) filed a
response to the Librace's request to seal his criminal
record in state court and refused to correct alleged errors
in his criminal record when brought to its attention.
Id. Librace seeks “damages for libel, slander,
and the denial of Civil Rights guaranteed by the
Constitution, ” and further requests that this Court
order the Defendants to seal and correct their records or
“completely dismiss the charges.” Doc. 2, p.
4. Liberally construing the Complaint, Librace asserts
due process violations and defamation claims against both
FDLE and State Attorney Office are the sole Defendants to
whom Librace attributes all acts and omissions forming the
basis for his claims. These entities are not suable under §
1983. See Will v. Michigan Dept. of State Police,
491 U.S. 58, 63 (1989) (state is not a “person”
under § 1983); Alsbrook v. City of Maumelle,
184 F.3d 999, 1010 (8th Cir.1999) (§ 1983 suit cannot be
brought against state agency); Ketchum v. City of West
Memphis, Ark., 974 F.2d 81, 81 (8th Cir.1992)
(departments or subdivisions of local government are
“not juridical entities suable as such”);
Midflet v. Circuit Court of Jackson Cnty., 827 F.2d
343, 345 (8th Cir.1987) (“[S]tate courts as entities
are not vulnerable to a § 1983 suit because they are
protected by immunity under the Eleventh Amendment.”).
Therefore, this suit is barred by the Eleventh Amendment, and
the Court recommends dismissal without prejudice for this
are entitled to absolute immunity from lawsuits arising from
their prosecutorial functions, such as the initiation and
pursuit of a criminal prosecution. Reasonover v. St.
Louis County, Mo., 447 F.3d 569, 580 (8th Cir. 2006);
Anderson v. Larson, 327 F.3d 762, 768 (8th Cir.
2003); see also Hayden v. Nevada Cty., AR, 664 F.3d
770, 772 (8th Cir. 2012) (holding that a prosecutor's
conduct related to plea bargaining is entitled to absolute
immunity). Librace's claims against the Florida State
Attorney Office arise from its prosecutorial functions. Thus,
those claims must be dismissed, with prejudice, because the
Florida State Attorney Office and its prosecutors are
entitled to absolute immunity.
FDLE's response to Librace's request to seal his
criminal record in state court is entitled to absolute
immunity. Therefore, the Court recommends dismissing
Librace's claims, with prejudice, because Defendants are
entitled to absolute immunity.
also claims “the incorrect and altered documents have
been used to slander, insult, and have acts of violence
against” him. Doc. 2, p. 4. Librace does not
say who has used the documents against him, or
how. Thus, this allegation is insufficient to state
a defamation claim against either Defendant. More
importantly, “[d]amages for defamation are not
recoverable under § 1983 because a defamed person has
not been deprived of any right, privilege or immunity secured
to him by the Federal Constitution or laws of the United
States.” Ellingburg v. Lucas, 518 F.2d 1196,
1197 (8th Cir. 1975). Therefore, the Court recommends
dismissing Librace's defamation claims for failure to
state a claim for which relief may be granted.