# Onstad v. Bethell

> District Court, W.D. Arkansas · August 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10632188

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

ALAN COLE ONSTAD PLAINTIFF

v. Civil No. 6:21-cv-06105

AGENT ROY BETHELL,
Group 6 Narcotics Unit;
STEPHEN L. SHIRRON,
Prosecuting Attorney;
JUDGE CHRIS E. WILLIAMS,
Hot Spring County Circuit Court;
JOHN AND JANE DOE DEFENDANTS,
Involved in the Seizure and Failure to Return
Seized United States Currency; and
GREG CRAINE, Public Defender DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This case is before the Court for preservice screening under the provisions of the Prison
Litigation Reform Act (“PLRA”). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation
to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2011), the Honorable Robert T. Dawson, Senior United States District Judge, referred the matter
to the undersigned for the purpose of making a Report and Recommendation.
Plaintiff, Alan Cole Onstad (“Onstad”), currently an inmate of the Varner Unit of the
Arkansas Department of Corrections, filed this civil rights action under 42 U.S.C. § 1983. He
proceeds pro se and in forma pauperis (“IFP”). (ECF Nos. 1, 2, 3). An Amended Complaint
was filed on July 15, 2021. (ECF No. 7).
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I. BACKGROUND
The allegations of Onstad’s Amended Complaint concern events in October 2019. His
first claim is for denial of due process. He states that “legally obtained property was taken from
me without any reason or a proceeding of any kind to validate the seizure.” (ECF No. 7 at 4).
The claim is stated against Agent Bethell, Stephen L. Shirron, and John and Jane Doe secretaires

or clerks responsible for establishing a hearing date, and specifically concerns $871.00 that was
confiscated from Onstad during an arrest. (Id.). The money was allegedly held at Prosecuting
Attorney Stephen Shirron’s office. (Id.). Onstad states he was given a confiscation form, and
although he was told that a hearing would be held, it never was. (Id.). Onstad states that he has
file-marked copies of a “Motion for Return of Seized Property” that he filed in Hot Spring County
on March 25, 2020, and again January 12, 2021. (Id. at 5). He states that he “was never afforded
due process.” (Id.).
Onstad’s first claim is stated against the Defendants in both their official and individual
capacities. With respect to the official capacity claim, when asked to “describe the custom,

policy, or widespread practice that you believe caused the violation of your constitutional rights,”
Plaintiff states: “The practice of Group 6 Task Force and Hot Springs Co. prosecutors office is to
take all manner of valuables from poor, unrepresented persons like myself w/out any
consideration for due process then keep said properties for agency coffers by denying the rightful
owner the opportunity to seek redress at a Constitutionally mandated hearing to prove valid claims
to said valuables.” (ECF No. 7 at 5).
Onstad’s second claim is for “denial of access to court which caused the loss of $871.00
that was legally acquired.” (ECF No. 7 at 6). He also states that he has not “been able to receive

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jail credit for days already served (approx 120 days).” (Id.). The claim is stated against Public
Defender Greg Craine, Judge Chris E. Williams, Prosecuting Attorney Stephen Shirron, Agent
Roy Bethell, and “unknown secretaries/bookkeepers, etc. involved in any of the entities that have
failed to make sure I was afforded a hearing to determine legal ownership of said monies.” (Id.).
Onstad’s second claim is also stated against the Defendants in both their official and

individual capacities. With respect to the official capacity claim, when asked to “describe the
custom, policy, or widespread practice that you believe caused the violation of your constitutional
rights,” Plaintiff states: “Again I believe it is the practice within Hot Springs Co. at both the
Courthouse and Prosecutor’s Office along w/the Public Defenders Office to simply ignore and
silence poor, unrepresented individuals such as myself especially once sentenced to ADC and
affectively left defenseless and without a voice to protest. This unofficial policy / practice must
stop. Everyone deserves a day in Court.” (ECF No. 7 at 7).
Plaintiff seeks compensatory and punitive damages, as well as injunctive relief. (ECF
No. 7 at 9).

II. LEGAL STANDARD
Under the PLRA, the Court is obligated to screen the case prior to service of process being
issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be
granted if it does not allege “enough facts to state a claim to relief that is plausible on its face.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff
has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully
pleaded ... to less stringent standards than formal pleadings drafted by lawyers.’” Jackson v.
Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
However, even a pro se Plaintiff must allege specific facts sufficient to support a claim. Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

III. DISCUSSION
The essential elements of a § 1983 claim are: (1) that the defendant(s) acted under color of
state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally
protected federal right. Schmidt v. City of Bella Vista, 557 F.3d 564, 571 (8th Cir. 2009).
A. Separate Defendant Greg Craine
Plaintiff names his public defender, Greg Craine, as a Defendant in his second cause of
action. The Supreme Court has held that a public defender does not act under color of state law
when performing a lawyer’s traditional functions as counsel to indigent defendants in state

criminal proceedings. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Further, although
caselaw recognizes that a private party can be held liable under § 1983 when he or she is a “willful
participant in a joint activity with the State or its agents,” Gibson v. Regions Fin. Corp., 557 F.3d
842, 846 (8th Cir. 2009), Onstad does not allege the facts necessary to indicate such an
arrangement.1

1 To state a claim against a private party under § 1983, the plaintiff “must allege, at the very least, that there
was a mutual understanding, or a meeting of the minds, between the private party and the state actor.”
Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993). With respect to Separate Defendant Greg Craine,
Plaintiff only alleges that he “served” Craine with a copy of his “Motion for Return of Seized Property” to
no avail. (ECF No. 7 at 5).
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B. Prosecutorial Immunity
Immunity is a defense to an individual capacity claim. Roach v. Stouffer, 560 F.3d 860,
870 (8th Cir. 2009) (“immunity, either absolute or qualified, is a personal defense that is available
only when officials are sued in their individual capacities”) (internal quotation marks and citation
omitted). The United States Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 431 (1976),

established the absolute immunity of a prosecutor from a civil suit for damages under 42 U.S.C. §
1983 “in initiating a prosecution and in presenting the State’s case.” Id. at 427. This immunity
extends to all acts that are “intimately associated with the judicial phase of the criminal
process.” Id. at 430; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (prosecutor acting as
an advocate for the state in a criminal prosecution is entitled to absolute immunity, while a
prosecutor acting in an investigatory or administrative capacity is only entitled to qualified
immunity).
Immunity is not defeated by “[a]llegations of unethical conduct and improper motive in the
performance of prosecutorial functions.” Sample v. City of Woodbury, 836 F.3d 913, 916 (8th

Cir. 2016). “[A] prosecutor is immune from suit even if he knowingly presented false,
misleading, or perjured testimony . . . or withheld or suppressed exculpatory evidence.”
Woodworth v. Hulshof, 891 F.3d 1083, 1089 (8th Cir. 2018) (cleaned up). The immunity extends
to “a civil conspiracy charge when [the prosecutor’s] alleged participation in the conspiracy
consists of otherwise immune acts.” Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 580 (8th
Cir. 2006) (citation omitted).
Here, Onstad has failed to allege Prosecutor Stephen L. Shirron engaged in any conduct
other than prosecutorial functions. Accordingly, Prosecutor Shirron is entitled to absolute

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immunity on the individual capacity claims against him for damages.2 See also Brodnicki v. City
of Omaha, 75 F.3d 1261 (8th Cir. 1996) (County prosecutors were entitled to absolute immunity
from suit).
C. Judicial Immunity
Judge Chris E. Williams is a Circuit Judge for Hot Spring County, Arkansas. As set forth

above, Onstad’s second claim is stated against Judge Williams and is for “denial of access to court
which caused the loss of $871.00 that was legally acquired.” (ECF No. 7 at 6). Onstad also
claims that he has not “been able to receive jail credit for days already served (approx 120 days).”
(Id.). He states that he has “file marked copies of ‘Motion for Return of Seized Property’ that I
filed in Hot Spring Co. on 3-25-20 and again 1-12-21 . . .” (Id. at 5). He further states, “I filed
a pro-se motion ‘For Return of Seized Property’ with the Hot Spring Co. Clerks office . . . Again
in Jan 2021 I resubmitted the file marked copy of the motion to the clerks office.” (Id. at 6). The
Court located these motions on caseinfo.arcourts.gov. Plaintiff’s state criminal matter was filed
in the Circuit Court of Hot Spring County, Arkansas, before Judge Chris E. Williams, and is styled

State of Arkansas v. Alan Cole Onstad, having Case No. 30CR-19-396-1. Although the case was
“closed” on March 11, 2020, the date of the entry of the Sentencing Order, there are several
motions for return of seized property and for credit for time spent in custody pending. The
motions were all filed after the case was “closed” on March 11, 2020.
Judges are generally immune from individual capacity damages suits based on actions
taken within their judicial capacity. See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“judicial

2 Prosecutors enjoy absolute prosecutorial immunity from damages liability in certain circumstances;
however, absolute prosecutorial immunity does not extend to actions for declaratory and injunctive relief.
Supreme Court v. Consumers Union of United States, 446 U.S. 719, 736 (1980).
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immunity is an immunity from suit, not just from ultimate assessment of damages”). Judicial
immunity is only overcome in two narrow situations: (1) if the challenged act is non-judicial, and
(2) if the action, although judicial in nature, was taken in the complete absence of jurisdiction. Id.
Moreover, “[a] judge will not be deprived of immunity because the action he took 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.” Stump v. Sparkman, 435 U.S. 349,
356-57 (1978) (citations omitted).
The only allegations Onstad has made against Judge Williams are related to the motions
pending in the Hot Spring County criminal proceeding. Plaintiff has made no allegations that
Judge Williams took any actions that were non-judicial or taken without jurisdiction. Plaintiff’s
individual capacity claims for damages against Judge Williams fail as he is immune from suit.
D. Sovereign Immunity
Onstad’s official capacity claims against Prosecutor Shirron and Judge Williams are
subject to dismissal. In Arkansas, prosecuting attorneys are officers of the state. Ark. Const.

amend. 80, § 20. Judges are also state officials. Ark. Const. amend. 80, § 17.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against any one of
the United States.” U.S. Const. amend XI. “The Eleventh Amendment confirms the sovereign
status of the States by shielding them from suits by individuals absent their consent.” Frew ex re.
Frew v. Hawkins, 540 U.S. 431, 437 (2004). “[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office. As such,
it is no different from a suit against the state itself.” Will v. Michigan Dep’t. of State Police, 491

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U.S. 58, 71 (1989) (citation omitted). “Eleventh Amendment jurisprudence is well-settled: ‘a suit
by private parties seeking to impose a liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.’” Burk v. Beene, 948 F.2d 489, 492 (8th Cir.
1991) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)).
This bar exists whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S.

265, 276 (1986). Furthermore, “neither a State nor its officials acting in their official capacity are
‘persons’ under § 1983.” Will, 491 U.S. at 71.
Exceptions to the reach of the Eleventh Amendment exist only when the state has
unequivocally waived its immunity or Congress has abrogated the immunity. Hutto v. Finney,
437 U.S. 678, 693 (1978). The State of Arkansas has not waived its sovereign immunity. See,
e.g., Hadley v. North Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996). Nor did
Congress abrogate sovereign immunity when enacting § 1983. Quern v. Jordan, 440 U.S. 332,
345 (1979). The official capacity claims against Prosecutor Shirron and Judge Williams are
therefore barred by the Eleventh Amendment.

E. Younger Abstention
Finally, the remaining claims in this matter should be stayed pursuant to Younger v. Harris,
401 U.S. 37 (1971). As set forth above, Plaintiff’s claims concern motions pending in a criminal
case in Hot Spring County, Arkansas. State of Arkansas v. Onstad, 30CR-19-396-1. Under
Younger, federal courts are required to abstain from hearing cases when “(1) there is an ongoing
state judicial proceeding which (2) implicates important state interests, and when (3) that
proceeding affords an adequate opportunity to raise the federal questions presented.” Norwood v.
Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (citing Fuller v. Ulland, 76 F.3d 957, 959 (8th

8
Cir. 1996)). Ongoing state criminal proceedings implicate the important state interest of enforcing
state criminal law, and constitutional claims relating to that proceeding should be raised
there. Meador v. Paulson, 385 F. App’x 613 (8th Cir. 2010); see also Gillette v. N. Dakota Disc.
Bd. Counsel, 610 F.3d 1045, 1046 (8th Cir. 2010). “If all three questions are answered
affirmatively, a federal court should abstain unless it detects ‘bad faith, harassment, or some

extraordinary circumstance that would make abstention inappropriate.’” Night Clubs, Inc. v. City
of Ft. Smith, Ark., 163 F.3d 475, 479 (8th Cir. 1998) (quoting Middlesex Cnty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 435 (1982)).
When only equitable relief is sought, Younger “contemplates the outright dismissal of the
federal suit, and the presentation of all claims, both state and federal to the state courts.” Gibson
v. Berryhill, 411 U.S. 564, 577 (1973) (a § 1983 case involving only injunctive relief, and not
damages). In cases where damages are sought, the Eighth Circuit has noted that the Supreme
Court instructs that traditional abstention principles generally require a stay as the appropriate
mode of abstention rather than a dismissal. Night Clubs, Inc., 163 F. 3d at 481. In Quackenbush

v. Allstate Ins. Co., 517 U.S. 706 (1996), the Court said:
In those cases in which we have applied traditional abstention principles to
damages actions, we have only permitted a federal court to withhold action until
the state proceedings have concluded, that is, we have permitted federal courts
applying abstention principles in damages actions to enter a stay, but we have not
permitted them to dismiss the action altogether.

Id. at 730. Because Plaintiff seeks both damages and injunctive relief, it is appropriate to stay the
remaining claims in this matter.

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IV. CONCLUSION
For the foregoing reasons, I recommend the following:
1) that Plaintiff’s claims against Greg Craine be dismissed;
2) that Plaintiff’s claims for damages against both Prosecuting Attorney Stephen L.

Shirron and Judge Chris E. Williams, in their individual capacities, be dismissed; and,
3) that Plaintiff’s claims against both Prosecuting Attorney Stephen L. Shirron and Judge
Chris E. Williams, in their official capacities, be dismissed.
I further recommend that this matter be stayed and administratively terminated with respect
to the remaining claims and Defendants, pursuant to Younger v. Harris, 401 U.S. 37 (1971).
Specifically, this matter should be stayed with respect to Plaintiff’s claims against Roy Bethell,
Plaintiff’s individual capacity claims for injunctive relief against Defendants Stephen L. Shirron
and Judge Chris E. Williams, and Plaintiff’s claims against the John and Jane Doe Defendants.
The Plaintiff has fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file
timely objections may result in waiver of the right to appeal questions of fact. The Plaintiff
is reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 30th day of August 2021.
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632188. Public record. Not legal advice.