United States District Court, M.D. Louisiana
JA'UAN T. SWANSON #9000117671
JUDGE B. HIGGINBOTHAM, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
pro se plaintiff, an inmate incarcerated at the East
Baton Rouge Parish Prison (“EBRPP”), Baton Rouge,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983 against Judge B. Higginbotham, District Attorney Hillar
Moore, and Assistant District Attorney Louise Hines
complaining that his constitutional rights have been violated
in connection with an ongoing state criminal court
proceeding. The plaintiff is seeking for Judge
Higginbotham to be recused, and for his Motion to Co-Counsel
to be addressed.
to 28 U.S.C. §§ 1915(e) and 1915A, this Court is
authorized to dismiss an action or claim brought by a
prisoner who is proceeding in forma pauperis or is
asserting a claim against a governmental entity or an officer
or employee of a governmental entity if satisfied that the
action or claim is frivolous, malicious or fails to state a
claim upon which relief may be granted. An action or claim is
properly dismissed as frivolous if the claim lacks an
arguable basis either in fact or in law. Denton v.
Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hicks v.
Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is
factually frivolous if the alleged facts are “clearly
baseless, a category encompassing allegations that are
‘fanciful, ' ‘fantastic, ' and
‘delusional.'” Id. at 32-33. A claim
has no arguable basis in law if it is based upon an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157
F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not
only the authority to dismiss a claim which is based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the factual allegations.
Denton v. Hernandez, supra, 504 U.S. at 32.
Pleaded facts which are merely improbable or strange,
however, are not frivolous for purposes of § 1915.
Id. at 33; Ancar v. Sara Plasma, Inc., 964
F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be
made any time, before or after service or process and before
or after an answer is filed, if the court determines that the
allegation of poverty is untrue; or the action is frivolous
or malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” See 28 U.S.C. §
1915(e)(2) and Green v. McKaskle, 788 F.2d 1116,
1999 (5th Cir. 1986).
plaintiff alleges the following in his Complaint, as amended:
Judge Higginbotham was appointed to preside over his state
criminal court proceeding after Judge Johnson was transferred
to the civil bench. The plaintiff and Judge Higginbotham have
had several disputes in open court, and Judge Higginbotham is
unprofessional and causes disruptions in the courtroom. Judge
Higginbotham has refused to set a bond for the plaintiff, and
dismissed his motion pertaining to co-counsel as moot.
District Attorney Hines is seeking to prosecute the plaintiff
on the highest charges possible, and harasses the plaintiff,
through his attorney, with a plea deal of 50 years. ADA Hines
is also attempting to prosecute the plaintiff on charges that
are time-barred, and discovery documents are being withheld.
District Attorney Moore has threatened to send the plaintiff
plaintiff's Complaint fails to state a claim under
§ 1983 against the defendants named in this
proceeding. Initially, the plaintiff's claim against
Judge Higginbotham is clearly barred by the doctrine of
absolute judicial immunity. While such immunity is a question
of law to be determined upon the facts of each case, it is
clear that this immunity extends to claims arising from acts
performed in the defendant's judicial role. Brewer v.
Blackwell, 692 F.2d 387, 396 (5th Cir. 1982). The
immunity shields a judge unless he or she acts in the clear
absence of all jurisdiction over the subject matter or in a
non-judicial capacity. See, e.g., Mireles v.
Waco, 502 U.S. 9, 11-12 (1991); Brewer v. Blackwell,
supra, 692 F.2d at 396. See also Ammons v.
Baldwin, 705 F.2d 1445, 1447 (5th Cir. 1983). Moreover,
this immunity applies however erroneous the act and however
evil the motive. Johnson v. Kegans, 870 F.2d 992,
995 (5th Cir. 1989). Applying this test here, it is clear
that the alleged acts of Judge Higginbotham in presiding over
the plaintiff's criminal case are within the scope of the
defendant's judicial authority. Therefore, Judge
Higginbotham is shielded from the plaintiff's claims by
absolute judicial immunity and is entitled to dismissal
the plaintiff's claims asserted against DA Moore and ADA
Hines are barred by the doctrine of absolute prosecutorial
immunity. A district attorney is absolutely immune in a civil
rights lawsuit for any action taken pursuant to his or her
role as a prosecutor in preparing for the initiation of
judicial proceedings or in presenting the State's case
before the court. See Kalina v. Fletcher,
522 U.S. 118, 125-26 (1997); Imbler v. Pachtman, 424
U.S. 409, 431 (1976); Esteves v. Brock, 106 F.3d
674, 677 (5th Cir. 1997). The courts employ a
“functional” test to determine whether a
prosecutor is entitled to absolute immunity, pursuant to
which the courts look to the “nature of the function
performed.” Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993). A prosecutor's immunity applies to his
or her actions in initiating prosecution, in carrying the
case through the judicial process, and to those actions that
are “intimately associated with the judicial phase of
the criminal process.” Esteves v. Brock,
supra, 106 F.3d at 677, quoting Imbler v.
Pachtman, supra, 424 U.S. at 430-31. “A
prosecutor's absolute immunity will not be stripped
because of action that was in error, was done maliciously, or
was in excess of his authority; rather, he will be subject to
liability only when he has acted in the ‘clear absence
of all jurisdiction.'” Labry v.
Mamoulides, 248 F.3d 1142, *1 (5th Cir. 2001),
quoting Kerr v. Lyford, 171 F.3d 330, 337
(5th Cir. 1999). In the instant case, the plaintiff's
claims asserted against DA Moore and ADA Hines are apparently
based on the defendants' conduct as advocates for the
State of Louisiana, and the defendants are therefore entitled
to absolute prosecutorial immunity. See Imbler v.
Pachtman, supra; Cousin v. Small, 325 F.3d 627,
631-32 (5th Cir. 2003). Accordingly, the plaintiff's
claims asserted against Moore and Hines must be dismissed
because he seeks recovery from defendants who are immune from
such relief. See Delaney v. Ackal, 2009 WL
5195935, *3 (W.D. La. Oct. 10, 2009).
to the extent that the plaintiff's allegations may be
interpreted as seeking to invoke the supplemental
jurisdiction of this court over potential state law claims, a
district court may decline the exercise of supplemental
jurisdiction if a plaintiff's state law claims raise
novel or complex issues of state law, if the claims
substantially predominate over the claims over which the
district court has original jurisdiction, if the district
court has dismissed all claims over which it had original
jurisdiction, or for other compelling reasons. 28 U.S.C.
§ 1367. In the instant case, having recommended that the
plaintiff's federal claims be dismissed, the Court
further recommends that the exercise of supplemental
jurisdiction be declined.
recommended that the Court decline the exercise of
supplemental jurisdiction over any potential state law
claims, and that the plaintiff's action be dismissed,
with prejudice, as legally frivolous, and for failure to
state a claim upon which ...