United States District Court, E.D. Arkansas, Western Division
WEBBER WRIGHT UNITED STATES DISTRICT .JUDGE
Carl Wynn ("Wynn"), proceeding pro se,
brings this action pursuant to 42 U.S.C. § 1983 against
Pulaski County Circuit Court Judge Barry Sims ("Judge
Sims"). Along with the complaint, Wynn filed a motion to
proceed in forma pauperis [ECF No. 1]. After careful
consideration, and for reasons that follow, the motion to
proceed in forma pauperis will be denied and the
case dismissed as frivolous, pursuant to 28 U.S.C. §
No. 60CR-18-4234, currently pending in the Circuit Court of
Pulaski County, Arkansas, Wynn charges that Judge Sims, who
presides over the case, denied his right to a jury trial. The
state court record shows that on October 18, 2018, Wynn
appeared before the North Little Rock (NLR) District Court,
which found him guilty of second-degree terroristic
threatening, a misdemeanor offense. Wynn appealed to the
Pulaski County Circuit Court, seeking a jury
trial. By motion entered January 24, 2019, the
State moved to remand the appeal back to the NLR District
Court, asserting that Wynn had failed to perfect his appeal.
By order entered January 28, 2019, Judge Sims granted the
motion and remanded the case for imposition of sentence. On
January 30, 2019, Wynn filed a motion to reinstate, which is
his complaint in this case, Wynn charges that Judge Sims
treated him with hostility and lack of respect and violated
his constitutional right to a jury trial. By way of relief,
Wynn seeks injunctive relief to stop the state court from
denying his asserted right to a jury trial.
federal statue governing in forma pauperis
proceedings provides that a court shall dismiss a case at any
time if the court determines that the action is frivolous or
malicious or fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2). The Eighth
Circuit has instructed that the decision of whether a
complaint is frivolous or malicious precedes the decision of
whether to grant in forma pauperis status and
whether to order service of process. See Carney v.
Houston 33 F.3d 893, 895 (8th Cir.
1994)(quoting Gentile v. Missouri Dept. Of
Corrections, 986 F.2d 214 (8th Cir. 1993)).
"If the complaint is frivolous or malicious, the
district court should dismiss it out of hand." Id.
A complaint is frivolous where it lacks an arguable
basis either in law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325-27 (1989).
Court finds that the complaint in this case lacks an arguable
basis in law. First, judges performing judicial duties enjoy
absolute immunity from § 1983 liability. Robinson v.
Freeze, 15 F.3d 107, 108 (8th Cir.1994). Judicial
immunity is overcome only where the challenged act is
non-judicial or taken in the complete absence of all
jurisdiction, see Mireles v. Waco, 502 U.S. 9, 12,
112 S.Ct. 286, 288, (1991), which is not alleged here. The
doctrine of judicial immunity does not bar a claim for
prospective declaratory or injunctive relief against a
judicial officer acting in his judicial capacity. See
Pulliam v. Allen, 466 U.S. 522, 542 (1984). However, in
1996, Congress passed the Federal Courts Improvement Act,
which amended § 1983 to preclude injunctive relief
against a judicial officer "for an act or omission taken
in such officer's judicial capacity ... unless a
declaratory decree was violated or declaratory relief was
unavailable." 42 U.S.C. § 1983. Wynn does not
allege that either prerequisite for injunctive relief is met
in this case.
Wynn, in effect, requests that the Court intervene in an
ongoing state criminal proceeding. The abstention doctrine
set forth in Younger v. Harris, 401 U.S. 37 (1971),
directs that federal courts must not interfere with, or
intervene in, ongoing criminal proceedings in state court.
Absent extraordinary circumstances, which are not present
here, this Court must abstain from exercising jurisdiction
over any civil action that challenges Plaintiffs ongoing
criminal proceedings. Hudson v. Campbell, 663 F.3d
985, 987 (8th Cir. 2011)("The Younger
abstention doctrine derives from notions of federalism and
comity. Younger itself held that, absent
extraordinary circumstances, federal courts should not enjoin
pending state criminal prosecutions.").
THEREFORE ORDERED that pursuant to the judgment entered
together with this order, this action is DISMISSED WITH
PREJUDICE, pursuant to 28 U.S.C. § 1915(e)(2).
FURTHER ORDERED that the application to proceed in forma
pauperis [ECF No. 1] is DENIED.
 Arkansas has a two-tier criminal
justice system, whereby the district courts (courts of
limited jurisdiction) and circuit courts (courts of general
jurisdiction) have concurrent jurisdiction over misdemeanor
cases. See Ark. Const, amend. 80, § 7(A)-(B).
Upon appeal to circuit court, an accused misdemeanant
receives a jury trial, and the circuit court tries the
charges anew as if no judgment had been rendered in ...