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Johnston v. Wilkins

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

August 29, 2017

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



         This is 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).

         I. BACKGROUND

         According 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 parole agent.

         In 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.

         Subsequently, 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 extradition papers.

         Plaintiff 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.

         On or 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.

         Plaintiffs 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 cold."

          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.

         Plaintiff 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.


         Under 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 (2007)).

         Plaintiffs 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, ...

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