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Neal v. Campbell

United States District Court, W.D. Arkansas, Texarkana Division

May 22, 2015

DEUNDRA NEAL, Plaintiff,
v.
WARDEN CAMPBELL, Arkansas Community Correction; MS. WALKER, Records Supervisor; MS. ORR; MS. NASH, Defendants.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

This is a civil rights case filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2014), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

The case is before me on a motion to dismiss (ECF No. 9) filed by the Defendants. Plaintiff has not responded to the motion.

(1). Background

According to the Arkansas Department of Correction (ADC) website, the Plaintiff is currently incarcerated in Jefferson County on the waiting list for transfer to the ADC. According to the allegations of the complaint, Plaintiff is incarcerated due to a parole revocation.

Plaintiff alleges that his parole violation papers indicated he was scheduled to go before the parole board on June 11, 2014. Plaintiff indicates his counseler had his discharge papers prepared for his June 11th appearance before the parole board. Additionally, Plaintiff states his parole violation papers, his parole officer, and his counselor all said he would go before the parole board in June.

On June 2nd, Plaintiff was charged with a "cardinal" rule violation. On June 5th, when he went to submit his parole plan, Plaintiff states Ms. Nash told him that there was no way he could have known when he was going before the parole board. Nash gave the Plaintiff a date of July 16th. Nash also informed him that he had pending charges. Even if the pending disciplinary charges were dropped, Nash informed Plaintiff that he would be paroling to a detainer.

On June 10th, a hearing was held on Plaintiff's disciplinary charge. He was found guilty and given 30 days loss of privileges, loss of forty days of good time, and a reduction to class 3. The sanctions were suspended for a period of sixty days. Plaintiff alleges that sometime between June 2nd and June 5th, before he even had his disciplianry hearing, either the records supervisor or staff made a computer entry indicating that he was a class 3.

According to the Plaintiff, his Father called Warden Campbell who apologized for the mix up. The Warden indicted that Plaintiff was a class 2 on the date he should have went before the parole board. Had the Warden known that the records department entered Plaintiff as a class 3, the Warden said he would have stopped it from happening.

On June 18th, Plaintiff submitted a greivance about the situaiton. He indicates he was called into Ms. Orr's office and told it was not a grievable issue. Orr also told him that even though his paperwork said he would go before the parole board in June that the earliest he could appear before the Board was July 16th. Plaintiff asserts that he should not have had to wait to go before the Board because of the records staff was not following procedures.

Plaintiff maintains that his due process rights were violated by the Defendants' failure to follow procedures. He asks that the incident be investigated.

(2). Applicable Standard

Rule 8(a) contains the general pleading rules and requires a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)( quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a sheer possibility.'" Braden, 588 F.3d at 594 ( quoting Iqbal, 556 U.S. at 678). The standard does "not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation, " or reasonable inference, that the "defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Stone v. Harry, 364 F.3d 912, ...


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