United States District Court, W.D. Arkansas, Fayetteville Division
CHARLES K. JOHNSTON, JR. PLAINTIFF
LISA M. WILKINS, Hearing Judge, Arkansas Parole Board; MARK BERNTHAL, Supervisor, Probation and Parole Office, Rogers, Arkansas; SHERIFF VIC REGALADO, Tulsa County, Oklahoma; and KINSEY RIVERS, Probation and Parole Agent, Rogers, Arkansas DEFENDANTS
OPINION AND ORDER
TIMOTHY L.BROOKS, JUDGE.
a civil rights case filed by the Plaintiff, Charles K.
Johnston, Jr., under the provisions of 42 U.S.C. § 1983.
Plaintiff proceeds pro se and has filed an
application to proceed in forma pauperis
("IFP")(Doc. 6). He is currently incarcerated in
the Benton County Detention Center ("BCDC"). The
Prison Litigation Reform Act ("PLRA") modified the
IFP statute, 28 U.S.C. § 1915, to require the Court to
screen complaints for dismissal under § 1915(e)(2)(B).
The Court must dismiss a complaint, or any portion of it, if
it contains claims that: (a) are frivolous or malicious; (b)
fail to state a claim upon which relief may be granted; or,
(c) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
to the allegations of the Complaint (Doc. 1), Plaintiff was
on parole from the Arkansas Department of Correction.
Plaintiff names as Defendants: Lisa M. Wilkins, a Parole
Board hearing officer who ultimately revoked Plaintiffs
parole; Mark Bernthal, the probation and parole supervisor
for the district which includes Benton County; the Tulsa
County Sheriff, Vic Regalado; and Kinsey Rivers, his Arkansas
August of 2016, Plaintiff, who was then being supervised by
the Conway, Arkansas, Probation and Parole Office, was
charged with violating his parole by failing to pay fees in
the amount of $245. At the parole violation hearing,
Plaintiff alleges he was able to show proof of payment and
his parole was reinstated.
Plaintiff absconded on his parole supervision. On December
19, 2016, in Tulsa, Oklahoma, Plaintiff turned himself in on
the charge of absconding parole supervision. He was placed in
the David L. Moss Detention Center (Tulsa detention center).
On December 22, 2016, he appeared in court and was told the
Arkansas Probation and Parole Office would be notified that
day of his being held. Plaintiff alleges he signed
remained in the Tulsa detention center until he was released
on April 30, 2017. Plaintiff does not indicate the basis on
which he was released; however, he asserts that no Arkansas
parole officials contacted him before his release "to
direct me of my next steps." As a result of his lengthy
incarceration in the Tulsa detention center, Plaintiff states
he lost a $15 an hour job and became homeless.
around June 22, 2017, Plaintiff alleges the Olathe, Kansas,
Police Department arrested him on the "same
violation." Without having gone to court or signed any
extradition papers, Plaintiff states he was sent back to
Arkansas within 24 hours. Plaintiff maintains this
extradition was illegal because he did not sign any
extradition papers and was transported across state lines.
parole revocation hearing was held on July 17, 2017. He
alleges that Judge Wilkins demanded to know why he did not
contact his parole officers. Plaintiff states: "I
wasn't told what to do. From PPO/officers, no one
contacted me, to tell me what to do next... left out in the
According to Plaintiff, at his parole revocation hearing,
Kinsey Rivers testified that the Tulsa detention center had
failed to notify the Arkansas parole officers of Plaintiff
being held and ultimately released. Plaintiff alleges he also
discovered at the parole hearing that he was still being
charged the same late fees that the Conway parole agent had
released him on.
alleges that he was held against his will in the Tulsa
detention center; the Arkansas parole agents failed to
extradite him in a timely manner; the Arkansas parole agents
failed to comply with state and local laws for extradition;
and double jeopardy applies to the alleged violation dealing
with the fees owed. As relief, Plaintiff seeks compensatory
and punitive damages.
the PLRA, the Court is obligated to screen a case prior to
service of process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
bears in mind, however, that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers."'
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
claims are subject to dismissal. First, Plaintiffs claims
against Lisa Wilkins, a hearing officer with the Arkansas
Parole Board, are subject to dismissal. The Arkansas Parole
Board is a state agency created by the Arkansas General
Assembly. See Ark. Code Ann. § 16-93-201. Its
members are appointed by the governor and confirmed by the
senate. Id. A claim against a hearing officer of the
Arkansas Parole Board is the equivalent of a suit against a
state agency, and Eleventh Amendment immunity precludes this
claim. See Will v. Michigan Dept. of State Police,491 U.S. 58 (1989). Furthermore, ...