* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Kyle Forney, an Oklahoma pretrial detainee appearin g pro se, appeals the-2-

district court’s dismissal of his complaint seeking habeas relief and damages under 42 U.S.C. § 1983. We exercise jurisdiction p ursuant to 28 U.S.C. § 1291 and dismiss in part and affirm in part. In his complaint filed March 20, 1998, Forney alleg ed 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 courtappearance until January 21, 1998. He sought immediate release from confinementand an order barring his prosecution by the State, as well as compensatory a nd punitive damages. The magistrate judge recommended dismissal of the actio n after concluding the action for immediate release and for bar of prosecution wa s 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 da mages, the magistrate concluded the named defendants were immune under 42 U.S.C. § 1983. Forney filed written objections and the district court adopted the magis trate’s recommendation, dismissing the action in its entirety. Liberally construing the complaint, we agree that F orney effectively asserted two causes of action -- one for habeas rel ief and one for damages under § 1983. We will review the two causes of action sepa rately. Habeas Relief Although a state pretrial detainee may bring a habe as action in federal court1 Other than naming the two prosecutors as defendants, Forney did not

identify the individuals or describe their involvem ent in alleged constitutional (continued...) -3- 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 forest all 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 defendantcan only seek to force the state to go to trial). Forney presents no special circum stances which would justify interference by the federal courts in his pending s tate prosecution. Forney does not seek enforcement of his right to a speedy trial , but rather seeks immediate release and an order prohibiting his pending prosec ution. The district court properly dismissed the habeas portion of Forney’s p etition. Damages The district court was correct in concluding the na med defendants were immune from suit. Under the Eleventh Amendment, th e 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 pro perly1 (...continued)

deprivations. For purposes of this appeal, we pres ume they were the prosecutors assigned to Forney’s criminal case. -4- 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), andis not entitled to a certificate of appealability. We DENY a certificate of appealabili ty and DISMISS Forney’s appeal from dismissal of his request for habeas rel ief. We AFFIRM the district court’s dismissal of Forney’s 42 U.S.C. § 1983 clai ms. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge