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Brown v. Merchant

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


August 9, 2006

KERRY L. BROWN, PETITIONER,
v.
JAY MERCHANT, RESPONDENT.

The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

On June 5, 2006, Petitioner filed this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge his recent conviction for aggravated driving under the influence and driving with a revoked license. He now seeks to file an amended petition (Doc. 4), as well as permission to file this late petition (Doc. 3). In his proposed amended petition, he wishes to add the state's attorney and state judge as defendants. He also wishes to add a claim for damages in addition to his request for immediate release and dismissal of all charges against him.

Federal Rule of Civil Procedure 15(a) dictates that leave to amend a pleading "shall be given whenever justice so requires," see Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995). However, the claims Petitioner seeks to add to this action cannot be pursued under habeas corpus jurisdiction; his claims for damages may only be pursued in a civil rights action under 42 U.S.C. § 1983. Accordingly, the motion to amend is DENIED, and the motion to make a late filing is MOOT.

The Petitioner is frustrated and angry at the judge and the prosecutor who were involved in the proceedings leading to his conviction and incarceration. However, Plaintiff is ADVISED that both of these individuals are immune from damages. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judges, being sued solely for judicial acts, are protected by absolute judicial immunity); Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir. 2001) (same). See also Imbler v. Pachtman, 424 U.S. 409, 431 (1976) ("In initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983."). Therefore, if Plaintiff were to file a separate civil rights lawsuit against them, he first would be required to pay the full $350 filing fee for that action, see 28 U.S.C. § 1915(b). The case then would be dismissed as legally frivolous, see 28 U.S.C. § 1915A, and he would be assessed a "strike" for filing a legally frivolous lawsuit. See 28 U.S.C. § 1915(g).

IT IS SO ORDERED.

G. PATRICK MURPHY Chief United States District Judge

20060809

© 1992-2006 VersusLaw Inc.



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