1:26-cv-01015•Rakich v. Doe et al
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1 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 Case 1:26-cv-01015-SOH-CDC Document 9 Filed 05/08/26 Page 1 of 5 PageID #: <pageID>
2 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 Case 1:26-cv-01015-SOH-CDC Document 9 Filed 05/08/26 Page 2 of 5 PageID #: <pageID>
3 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. Case 1:26-cv-01015-SOH-CDC Document 9 Filed 05/08/26 Page 3 of 5 PageID #: <pageID>
4 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. Case 1:26-cv-01015-SOH-CDC Document 9 Filed 05/08/26 Page 4 of 5 PageID #: <pageID>
5 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 Case 1:26-cv-01015-SOH-CDC Document 9 Filed 05/08/26 Page 5 of 5 PageID #: <pageID>
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