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Harkey v. Degraw

United States District Court, W.D. Louisiana, Shreveport Division

June 26, 2015

DAVID M. HARKEY
v.
DANNAH DeGRAW, ET AL

REPORT AND RECOMMENDATION

MARK L. HORNSBY, Magistrate Judge.

In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.

STATEMENT OF CLAIM

Before the court is a civil rights complaint filed by pro se plaintiff David Harkey ("Plaintiff"), pursuant to 42 U.S.C. § 1983. This complaint was received and filed in this court on October 28, 2014. Plaintiff is incarcerated at the Caddo Correctional Center in Shreveport, Louisiana. Plaintiff names Dannah DeGraw, Dana Harkey, and Mr. DeGraw as defendants.

Plaintiff claims that on October 10, 2013, Dana Harkey stole his phone from his house. He claims he left his phone at his house because Dannah DeGraw kept calling him. He claims Harkey gave the phone to Dannah DeGraw who then gave the phone to her father Mr. DeGraw.

Plaintiff claims that on October 29, 2013, Mr. DeGraw gave his phone to the police and filed a report stating that he had mistreated Dannah DeGraw.

Plaintiff claims old data about Dannah DeGraw's IQ was used and a proper investigation was not conducted by Detective Jones.

Accordingly, Plaintiff seeks to have the charges dropped, his immediate release from jail, and monetary compensation.

LAW AND ANALYSIS

Dannah DeGraw, Mr. DeGraw, and Dana Marcus Harkey

Section 1983 prescribes redress for conduct by any person who, under color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983. A plaintiff in a civil rights suit must show that the conduct of which he is complaining was committed by a person acting under color of state law. Plaintiff has not alleged any action that would give rise to the defendants Dannah DeGraw, Mr. DeGraw, and Dana Marcus Harkey being state actors for purposes of Section 1983.

Accordingly, Plaintiff's civil rights complaint against Dannah DeGraw, Mr. DeGraw, and Dana Marcus Harkey should be dismissed as frivolous.

Habeas

Plaintiff seeks to have the charges against him dismissed and his immediate release from incarceration. Although Plaintiff submitted his claim on the standardized civil rights complaint form, it is incumbent upon this court to determine preliminarily whether the facts alleged establish a claim under 42 U.S.C. § 1983 of the Civil Rights Act, or whether the claim is one which must be pursued initially in a habeas corpus proceeding. This determination is made by focusing on "the scope of relief actually sought." ...


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