United States District Court, W.D. Arkansas, Texarkana Division
JERMAIN D. LEWIS PLAINTIFF
SHERIFF BOBBY WALRAVEN, Little River County, Arkansas; ROGER MITCHELL, Arkansas Community Correction ACC; CYNTHIA HOLMES, ACC; LYNN BAUCUM, Ashdown Police Department; BRANDY NELSON; TAMMY PHELP; and DEPUTY PROSECUTOR AL SMITH DEFENDANTS
O. HICKEY UNITED STATES DISTRICT JUDGE.
filed this case pro se pursuant to 42 U.S.C. §
1983. Currently before the Court is the issue of preservice
screening under the provisions of the Prison Litigation
Reform Act (“PLRA”). Pursuant to the PLRA, the
Court shall review complaints in civil actions in which a
prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity. 28 U.S.C. §
filed his Complaint on July 6, 2017. (ECF No. 1). His
application to proceed in forma pauperis was granted
that same day. (ECF No. 3). Plaintiff has named the following
Defendants in this lawsuit: Sheriff Bobby Walraven, Roger
Mitchell with the ACC, Cynthia Holmes with the ACC, Officer
Lynn Baucum, Brandy Nelson, Tammy Phelp, and Deputy
Prosecutor Al Smith. Plaintiff claims that “[o]n June
30, 2015, I had a revocation hearing, Field Officer Roger
Mitchell, Officer Bobby Walraven, Brandy Nelson and Tammy
Phelp all testified for the states All were coerced by Deputy
Prosecutor Al Smith and the Court. Therefore I was denied a
fair trial . . . due process by courts . . . violation of
6th, 8th, 4th, 14th of Amendment Right of U.S.
Constitutional”. (ECF No. 1). Plaintiff goes on to
state that “[o]n March 6, 2017 Officer Lynn Baucam and
Cynthia Holmes made false claim, false statement, false
report and violation of due process violation 6th, 8th 14
amends Rights of U.S. Constitutional”. (ECF No. 1).
Plaintiff has also named Prosecutor Al Smith as a defendant
for “denial me of due process of double jeophy
convicted me after my 60 day to bring me for a hearing he
took 90 days.” (ECF No. 1).
August 11, 2017, Plaintiff filed a Supplement to his
Complaint clarifying that his claims against Defendants
Baucum and Holmes arise from testimony they gave at a
“parole hearing” held on March 6, 2017. (ECF No.
7). The Supplement also adds an excessive force claim against
Defendant Baucum for his alleged actions in connection with
Plaintiff's arrest on February 14, 2017. Plaintiff is
suing Defendants in both their individual and official
Court must determine whether the causes of action stated in
Plaintiff's Complaint (1) are frivolous or malicious, (2)
fail to state claims upon which relief may be granted, or (3)
seek monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §§
1915(e)(2)(B) & 1915(A). A complaint is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that a defendant, acting under color of
state law, deprived him of a right, privilege, or immunity
secured by the United States Constitution or by federal law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
False Testimony Claims
facts set forth in Plaintiff's Complaint do not support
any plausible cause of action for relief under 42 U.S.C.
§ 1983 arising from alleged false testimony given during
his probation or parole hearings. According to Plaintiff, his
civil rights were violated when Defendants Walraven,
Mitchell, Holmes, Baucum, Nelson, and Phelp testified falsely
against him in the course of his probation revocation. (ECF
Nos. 1, 7). In order to state a claim under 42 U.S.C. §
1983, a plaintiff must allege that the defendant acted under
color of state law and that he violated a right secured by
the Constitution. Atkins, 487 U.S. 42; Dunham v.
Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). It is well
settled that inmates do not have a constitutionally protected
liberty interest in the possibility of parole or probation as
required for a due process claim. Hamilton v.
Brownlee, 237 Fed.Appx. 114 (8th Cir. 2007). In
Hamilton, the court held that “Arkansas parole
statutes do not create a protectable liberty interest in
discretionary parole decisions[.]” Id. at 115.
Absent a protectable liberty interest, due process
protections are not implicated. Senty-Haugen v.
Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (first
question in procedural due process claim is whether plaintiff
has been deprived of protected liberty or property interest).
Without a protectable liberty interest there is no due
process claim. Id. at 886.
Plaintiff's Complaint could somehow be construed to
create a viable liberty interest, his claims clearly are an
attack on the revocation proceedings themselves. His §
1983 claims call into question the validity of those criminal
revocation proceedings. Plaintiff is barred from bringing
such claims until his conviction, in this case the two
revocation orders, are invalidated by the highest state court
or in a federal habeas proceeding. Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff may not
use the civil rights statutes as substitutes for habeas
corpus relief. In other words, Plaintiff cannot seek
relief pursuant to § 1983 relating to those revocation
hearings and his subsequent confinement. See e.g.,
Edwards v. Balisok, 520 U.S. 641, 648 (1997);
Preiser v. Rodriquez, 411 U.S. 475, 500 (1973)
(habeas corpus is the sole federal remedy for
prisoners attacking the validity of their conviction or
Plaintiff's individual-capacity and official-capacity
claims against Defendants Walraven, Mitchell, Holmes, Baucum,
Nelson, and Phelp for allegedly providing false testimony
should be dismissed with prejudice for failure to state a
claim on which relief can be granted.
Claims Against Defendant Smith
individual-capacity claims against Defendant Al Smith fail
because he is a prosecuting attorney who is immune from suits
filed under 42 U.S.C. § 1983. In Imbeler v.
Pachtman, the United States Supreme Court established
absolute immunity of a prosecutor from a civil suit for
damages under 42 U.S.C. § 1983 “in initiating a
prosecution and in presenting the State's case.”
424 U.S. 409, 431 (1976). This immunity extends to all acts
that are “intimately associated with the judicial phase
of the criminal process.” Id. at 430; see
also Buckley v. Fitzsimmons, 509 U.S. 259 (1993)
(holding that a prosecutor acting as an advocate for the
state in a criminal prosecution is entitled to absolute
immunity). This is true no matter the underlying motive of
the prosecutor or the propriety of the actions taken.
Myers v. Morris, 810 F.2d. 1437, 1446 (8th Cir.
1987) (finding that allegations that a prosecutor proceeded
with a prosecution based on an improper motive did not defeat
absolute prosecutorial immunity); Schenk v. Chavis,
461 F.3d 1043, 1046 (8th Cir. 2006) (“Actions connected
with initiation of prosecution, even if those actions are
patently improper are immunized.” (internal quotation
omitted)). However, absolute prosecutorial immunity does not
extend to duties performed outside a prosecutor's role as
an advocate. Buckley, 509 U.S. at 272-74 (1993).