*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 7 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KYLE WILSON FORNEY,

Plaintiff-Appellant,

 v.

STATE OF OKLAHOMA; GARY L.

AUKLEY; JOHN DOE, Assistant

District Attorney; JANE DOE,

Assistant District Attorney,

Defendants-Appellees.

No. 98-6234

(D.C. No. 98-CV-405)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

Kyle Forney, an Oklahoma pretrial detainee appearing pro se, appeals the
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district court’s dismissal of his complaint seeking habeas relief and damages

under 42 U.S.C. § 1983. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and dismiss in part and affirm in part.

In his complaint filed March 20, 1998, Forney alleged he was arrested for

various traffic violations on November 27, 1997, but was not arraigned until

December 18, 1997, and did not make his first court appearance until January 21,

1998. He sought immediate release from confinement and an order barring his

prosecution by the State, as well as compensatory and punitive damages. The

magistrate judge recommended dismissal of the action after concluding the action

for immediate release and for bar of prosecution was properly construed as a

petition for writ of habeas corpus, but the relief sought was beyond the federal

court’s authority to act. As for the claims for damages, the magistrate concluded

the named defendants were immune under 42 U.S.C. § 1983. Forney filed written

objections and the district court adopted the magistrate’s recommendation,

dismissing the action in its entirety.

Liberally construing the complaint, we agree that Forney effectively

asserted two causes of action -- one for habeas relief and one for damages under §

1983. We will review the two causes of action separately.

Habeas Relief

Although a state pretrial detainee may bring a habeas action in federal court
1

 Other than naming the two prosecutors as defendants, Forney did not

identify the individuals or describe their involvement in alleged constitutional

(continued...)

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to “demand enforcement of the [State’s] affirmative constitutional obligation to

bring him promptly to trial,” Braden v. 30th Judicial Circuit Court , 410 U.S. 484,

490 (1973), he may not seek habeas relief to forestall state prosecution altogether. 

See id. at 490-91; see Capps v. Sullivan , 13 F.3d 350, 354 (10th Cir. 1993) (by

filing pretrial habeas petition, criminal defendant can only seek to force the state

to go to trial). Forney presents no special circumstances which would justify

interference by the federal courts in his pending state prosecution. Forney does

not seek enforcement of his right to a speedy trial, but rather seeks immediate

release and an order prohibiting his pending prosecution. The district court

properly dismissed the habeas portion of Forney’s petition.

Damages

The district court was correct in concluding the named defendants were

immune from suit. Under the Eleventh Amendment, the State of Oklahoma is

immune from § 1983 claims. See McWilliams v. State of Colorado , 121 F.3d

573, 575 (10th Cir. 1997); Meade v. Grubbs , 841 F.2d 1512, 1525-26 (10th Cir.

1988). Likewise, the two assistant prosecutors are immune from civil suits for

damages under § 1983 for actions in initiating and prosecuting Forney’s criminal

case. 1

 Imbler v. Pachtman , 424 U.S. 409, 431 (1976). The district court properly
1

(...continued)

deprivations. For purposes of this appeal, we presume they were the prosecutors

assigned to Forney’s criminal case.

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dismissed Forney’s § 1983 claims.

Forney has failed to make a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253 (c)(2), and is not entitled to a certificate of

appealability. We DENY a certificate of appealability and DISMISS Forney’s

appeal from dismissal of his request for habeas relief. We AFFIRM the district

court’s dismissal of Forney’s 42 U.S.C. § 1983 claims. The mandate shall issue

forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge