United States District Court, E.D. Arkansas, Pine Bluff Division
J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Susan Webber Wright. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.
Plaintiff, Willie Scott, is a prisoner in the Ester Unit of the Arkansas Department of Correction ("ADC"). He has filed this pro se § 1983 action alleging that Defendants violated his constitutional rights while he was in the Cummins Unit. Pursuant to the screening function mandated by 28 U.S.C. § 1915A, the Court recommends that the case be dismissed, without prejudice, for failing to state a claim upon which relief may be granted.
Plaintiff alleges that, on February 9, 2011, he was wrongfully convicted of an unspecified disciplinary charge resulting from him touching his cell mate's leg. Docs. 2 & 5. As punishment, Plaintiff: (1) spent thirty days in punitive isolation; (2) was reduced to Class 4, making him ineligible to earn future good time credits for one year; (3) was transferred to the Varner Super Max Unit ("VSM"); and (4) lost 6, 214 days of earned good time credits. Id. On January 29, 2015, that disciplinary conviction was reversed due to the discovery of unspecified "new information." Doc. 5 at 11.
Plaintiff contends that Defendants violated his due process rights by wrongfully convicting him of the February 9, 2011 disciplinary. Plaintiff may bring a due process Bchallenge to his disciplinary proceedings only if the punishment he received was sufficient to create a "liberty interest." See Sandin v. Conner, 515 U.S. 472, 484 (1995); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
Plaintiff did not have a liberty interest in maintaining his classification level, even when the reduction resulted in his inability to earn future good time credits. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Madewell v. Roberts, 909 F.2d 1203, 1207 (8th Cir. 1990); Franklin v. Hobbs, 2011 WL 2160592 at * 6 (E.D. Ark. May 5, 2011). He also did not have a liberty interest in avoiding temporary placement in punitive isolation. See Phillips, 320 F.3d at 847; Portley-El v. Brill, 288 F.3d 1063, 1065-66 (8th Cir. 2002).
The Eighth Circuit has not resolved whether Arkansas prisoners have a liberty interest in avoiding transfer to the Varner Super Max Unit. See Wilkinson v. Austin, 545 U.S. 209, 223-25 (2005) (holding that, in some instances, a prisoner may have a liberty interest in avoiding confinement in a super max facility). However, even if the Court presumes that such a liberty interest exists, Plaintiff's claim fails - as a matter of law - because he received notice, a hearing, written findings, and an appeal prior to his transfer to the VSM, which is all that due process requires. Id., see also Griggs v. Norris, Case No. 07-1933, 2008 WL 4821633 (8th Cir. Nov. 7, 2008) (unpublished opinion).
Finally, it is unclear whether an Arkansas prisoner has a federally protected liberty interest in keeping his earned good time credits. See Wolff v. McDonnell, 418 U.S. 539, 555-58 (1974); McKinnon v. Norris, 231 S.W.3d 725, 729-30 (Ark. 2006). However, the issue is immaterial to this case because Plaintiff admits that his taken good time credits were restored, in 2015, when his disciplinary conviction was reversed.
IT IS THEREFORE RECOMMENDED THAT:
1. This case be DISMISSED, WITHOUT PREJUDICE, for failing to state a claim upon ...