Summary
holding that Newsome failed to state § 1983 claim against private individual
Summary of this case from Newsome v. Deputy Sheriff LemasterOpinion
Case No. C-2-03-47.
April 9, 2003
ORDER
Plaintiff Frank Newsome brings this civil rights action under 42 U.S.C. § 1983, 1985, and 1986. This matter is before the Court on Newsome's objections to Magistrate Judge Abel's January 13, 2003 Initial Screening Report and Recommendation that this case be dismissed because the complaint fails to state a claim upon which relief may be granted.
The complaint alleges that defendants John C. Nemeth, Attorney; Michael R. Merz, U.S. Magistrate; Jeffrey C. Turner, Attorney; Jerry Erwin, Sheriff; Steven Wolover, Prosecutor; Mark Fry; Mrs. Fry; Reg. Chapman; Chuck Hamlin; Charity Traylor; Jim Sanese; and an Unknown Photographer conspired to cause Newsome harm. Newsome has filed at least six previous cases which have been dismissed for failure to state a claim. Newsome v. Erwin, et al., C3-02-251; Newsome v. Erwin, et al., C3-01-281; Newsome v. Goldie, C3-00-372; Newsome v. Merz, et al., C3-99-624; Newsome v. Erwin, et al., C3-99-473; and Newsome v. Southside Honda, et al., C3-96-321. He apparently believes that Judge Merz, the attorneys representing parties in those cases, and the other defendants conspired to cause those cases to be dismissed.
Upon de novo review as required by 28 U.S.C. § 636(b)(1)(B), the Court ADOPTS the Report and Recommendation. Magistrate Judge Merz is immune from suit under 42 U.S.C. § 1983 because all of his alleged unconstitutional actions were performed in his capacity as a judge. Stump v. Sparkman, 435 U.S. 349, 356 (1978). Prosecutor Turner's alleged actionable conduct occurred in connection with judicial proceedings; consequently, he is entitled to prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Defendant Nemeth was representing private parties to a civil lawsuit. His actions were not under color of state law. Polk County v. Dodson, 454 U.S. 312, 325 (1981); consequently, the complaint fails to state a claim against him under 42 U.S.C. § 1983.
The complaint fails to state a conspiracy claim because it does not allege that Newsome is a member of a class, nor does it plead that defendants acted with a class-based animus. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The allegations that prosecutor Wolover obtained Fry's release from jail so that Fry could obtain evidence of Newsome engaging in criminal behavior do not state a claim for relief under 42 U.S.C. § 1983.
Accordingly, the complaint is DISMISSED on initial screening because it fails to state a claim against any defendant under 42 U.S.C. § 1983, 1985, or 1986. The Clerk of Court is DIRECTED to enter JUDGMENT dismissing the complaint with prejudice.