United States District Court, W.D. Arkansas, El Dorado Division
JOHNNY L. WRIGHT PLAINTIFF
DETECTIVE SCOTT HARTWELL, BILLY WHITE, and TREY PHILLIPS DEFENDANTS
O. Hickey United States District Judge
the Court is the Report and Recommendation filed January 19,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 65). Judge Bryant recommends that Defendants' Motion
for Summary Judgment (ECF No. 60) be granted and that
Plaintiff Johnny L. Wright's case be dismissed with
prejudice. Plaintiff has timely filed objections to the
Report and Recommendation. (ECF No. 66). The Court finds this
matter ripe for consideration.
Report and Recommendation, Judge Bryant recommends that
Plaintiff's Fourteenth Amendment claim be dismissed
because Plaintiff failed to make any allegations supporting
an inference that his arrest was motivated by racial animus.
Judge Bryant also recommends that Plaintiff's § 1983
official-capacity claims against Separate Defendants Scott
Hartwell,  Billy White, and Trey Phillips-all
essentially claims against the City of El Dorado-be dismissed
for failure to state a claim because Plaintiff failed to make
any allegations of a custom or policy of the City of El
Dorado that violated his constitutional rights. Judge Bryant
recommends that Plaintiff's § 1983
individual-capacity claims against Separate Defendants
Hartwell, White, and Phillips be dismissed for failure to
state a claim.
Plaintiff has filed objections to the Report and
Recommendation, the objections are largely unresponsive to
the Report and Recommendation and offer no error of law or
fact from which the Court finds it necessary to depart from
the Report and Recommendation. However, the Court finds that
Plaintiff did make a specific objection regarding the
recommendation of dismissal of his Fourteenth Amendment
claim. Pursuant to 28 U.S.C. § 646(b)(1), the Court will
conduct a de novo review of all issues related to
this specific objection.
citing to caselaw, Plaintiff argues that “[f]ederal
courts have held that parole is a liberty interest and
therefore has protection under the 14th Amendment of the U.S.
Constitution.” (ECF No. 66). Plaintiff argues further
that, as a parolee, he “is at liberty in the community
and therefore possesses certain rights under the U.S.
Constitution” which were violated when he was arrested
for Possession of a Firearm by a Certain Person. (ECF No.
66). Plaintiff does not claim that he is not making an equal
protection argument, but based on the fact that his
objections make no mention of equal protection, the Court
will assume for purposes of this Order that he is not making
such a claim.
Supreme Court has recognized that parolees facing revocation
are entitled to far less due process than they received when
being tried for their original criminal offense.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
Despite this, parolees do possess a liberty interest under
the Fourteenth Amendment that may be violated if their parole
is revoked without them first receiving the required due
process. Id. at 482. At minimum, parolees facing
revocation are generally entitled to the following:
(a) written notice of the claimed violations of parole; (b)
disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached'
hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a
written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.
Id. at 489.
Court finds that Plaintiff failed to assert a Fourteenth
Amendment claim related to his parole liberty interest. As
discussed above, Plaintiff argues that his liberty interest
related to parole revocation was violated when he was
arrested for Possession of a Firearm by a Certain Person.
Plaintiff has not alleged that he received insufficient due
process. The record indicates that Plaintiff received notice
of a parole revocation hearing, a hearing was held, Plaintiff
argued and presented witnesses at the hearing, and the
hearing was presided over by a hearing judge. (ECF No. 63).
The hearing judge found by a preponderance of the evidence
that Plaintiff violated the conditions of his supervised
release, and provided Plaintiff a written statement of the
facts utilized in reaching this determination. The hearing
judge's final disposition was deferred, and
Plaintiff's parole hold was dropped the same day.
has not alleged that there was an issue with the fairness or
process of the revocation hearing, and the Court finds that
he received sufficient due process. Plaintiff's only
argument appears to be that his liberty interest was violated
because he was arrested solely based on his past criminal
history and should not have been arrested in the first place.
The Court is unpersuaded by this argument due to the fact
that the record indicates that Plaintiff was also arrested
based on his neighbor's statement to the police that she
saw him firing a gun within city limits while he was on
parole. Thus, the Court finds that Plaintiff failed to assert
a Fourteenth Amendment claim related to his parole liberty
interest. Accordingly, the Court finds that dismissal of
Plaintiff's Fourteenth Amendment claim is appropriate.
de novo review of the Report and Recommendation, and
for the reasons discussed above, the Court overrules
Plaintiff's objections and adopts the Report and
Recommendation. (ECF No. 65). Defendants' Motion for
Summary Judgment (ECF No. 60) is hereby GRANTED.
Plaintiff's case is DISMISSED WITH PREJUDICE.