Rakich v. Doe et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
DRAGO RAKICH 	PLAINTIFF
v. 	Civil No. 1:26-cv-01015-CDC
JOHN DOE arresting officer; SHERIFF
CHARLIE PHILLIPS; JUDGE BARKER;
CAPTAIN SANDERS J; JEFFEREY C.
ROGERS; and RANDEE MOLSBEE 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff Drago Rakich, who is
currently incarcerated at the Union County Detention Center in El Dorado, Arkansas, proceeds pro
se and in forma pauperis. 	The case was directly assigned to the undersigned Magistrate Judge
pursuant to General Order 2024-02, but not all parties to the action have consented to the
jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Accordingly, for the purpose of preservice
review pursuant to 28 U.S.C. § 1915A(a), the case will automatically be reassigned to a United
States District Judge and referred to the undersigned for a report and recommendation pursuant to
the provisions of 28 U.S.C. §§ 636(b)(1) and (3).
I. BACKGROUND
Plaintiff’s Complaint purports to bring three separate claims against the Defendants in this
matter; but from the Court’s review, it appears that all three claims are substantively and factually
identical. In summary, Plaintiff alleges that on or about August 9, 2025, he was in the process of
moving in to a trailer where he had subleased a room from its tenants—who were not home at the
time—when El Dorado police officers arrived on the scene, accused him of burglary or breaking
and entering, and eventually arrested him for this even though he had shown them his receipt for
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payment of his first month’s rent. See ECF No. 1, pp. 4–6. Plaintiff was initially charged with the
felony of burglary in the state court case of State v. Rakich, Case No. 70CR-25-388; but then the
case was eventually nolle prossed. See id. However, Plaintiff contends that excessive bail was set
in that case, forcing him to spend several months in jail until the case was ultimately dismissed.
See id. at 4. Plaintiff alleges that this period of detention caused him financial harm in the form of
lost wages as well as theft of his property that remained beyond his protection in the outside world.
See id. at 5. As relief, Plaintiff seeks compensatory and punitive damages. See id. at 9.
II. LEGAL STANDARD
Under § 1915A, the Court is obliged 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) seeks
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). An action is malicious when the allegations are known to be false, or
it is undertaken for the purpose of harassing or disparaging the named defendants rather than to
vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987); In re
Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). 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.” 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)). This means “that if the essence of an allegation is
discernable, even though it is not pleaded with legal nicety, then the district court should construe
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the complaint in a way that permits the layperson’s claim to be considered within the proper legal
framework.” 	Jackson, 747 F.3d at 544 (cleaned up). 	However, the complaint must still allege
specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. ANALYSIS
Several of the Defendants whom Plaintiff has sued in this case must be dismissed, for
various reasons. First, with respect to Defendant Judge Barker: judges are generally immune from
lawsuits. “[J]udicial immunity is an immunity from suit, not just from ultimate damages.” Mireles
v. Waco, 502 U.S. 9, 11 (1991). There are only two situations where judicial immunity does not
apply: (1) if the challenged act is non-judicial; or (2) if the action, although judicial in nature, was
taken in the complete absence of all jurisdiction. See id. at 11–12. “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.” 	Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). 	There are no allegations in
Plaintiff’s Complaint that Judge Barker somehow lacked jurisdiction of the underlying state court
case; and he is only alleged to have engaged in judicial functions, such as setting bond. Therefore,
Defendant Judge Barker must be dismissed on the grounds that he is immune from suit here.
As for Defendants Sheriff Charlie Phillips and Captain Sanders J, the Complaint does not
provide any explanation of what their connection is to the events giving rise to this lawsuit. In the
“Defendant(s) Information” section, the Complaint refers to Sanders as the “Captain of Jail.” See
ECF No. 1, p. 3. Presumably, Plaintiff has sued these two Defendants because they were in charge
of the jail where he was held during the pendency of his state court case. 	But Plaintiff has not
alleged any facts that would support an inference that they had any reason to believe his detention
at their jail was unlawful. Accordingly, they must be dismissed because Plaintiff has failed to state
a claim against them for which relief can be granted.
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The only remaining Defendants here are the John Doe arresting officer, and the two
individuals who Plaintiff identifies as the prosecutors in his underlying case: Jefferey C. Rogers
and Randee Molsbee. 	Similarly to judges, prosecutors generally enjoy absolute immunity from
civil suits for damages under § 1983 “for the initiation and pursuit of a criminal prosecution.” See
Buckley v. Firzsimmons, 509 U.S. 259, 269 (1993). However, there is an important exception to
this, which is that “[b]efore the establishment of probable cause to arrest, a prosecutor generally
will not be entitled to absolute immunity.” McGhee v. Pottawattamie Cnty., Iowa, 547 F.3d 922,
929 (8th Cir. 2008). 	Construing Plaintiff’s Complaint with the leniency necessary for pro se
litigants, it appears he is alleging that he was arrested and prosecuted for burglary when there was
no probable cause to support the charge, and that the absence of probable cause should have been
apparent to these Defendants. 	Therefore, Plaintiff has pleaded claims against these Defendants
that are sufficiently plausible to survive pre-service screening. (Of course, this observation does
not preclude Defendants from further developing and litigating the issues of probable cause and
immunity after they have been served with the Complaint.)
Although Defendants Rogers and Molsbee will be served with the Complaint by separate
order, the Court does not yet have sufficient information about the arresting John Doe officer’s
identity to effectuate service on him. Once Defendants Rogers and Molsbee have been served and
have filed their responsive pleadings, the Court will enter an order setting deadlines in this matter
and, among other things, requiring the production of initial disclosures. Presumably Plaintiff will
learn the identity of the arresting officer(s) from those initial disclosures, at which time he may
amend his Complaint to identify that individual or individuals so that he (or they) may also be
served.
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IV. CONCLUSION
Accordingly, it is recommended that Defendant Judge Barker be DISMISSED WITHOUT
PREJUDICE as immune from suit, and that Defendants Sheriff Charlie Phillips and Captain
Sanders J be DISMISSED WITHOUT PREJUDICE for failure to state a claim against them upon
which relief may be granted, under 28 U.S.C. § 1915A(b)(1).
This leaves for later resolution Plaintiff’s claims against Defendants John Doe, Jefferey C.
Rogers, and Randee Molsbee. Defendants Rogers and Molsbee will be served with the Complaint
by separate order.
Status of Referral: This case should remain referred for all matters not recommended
for dismissal in this report and recommendation.
The parties have fourteen 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 parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 8th day of May 2026.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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