United States District Court, W.D. Arkansas, Fayetteville Division
CHARLES K. JOHNSTON, JR. PLAINTIFF
KINSEY RIVERS, Probation and Parole Officer; and MARK BERNTHAL, District Supervisor of Probation/Parole Officers DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED SWES DISTRICT JUDGE
a civil rights case tiled 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. 2). He is currently incarcerated in
the Benton County Detention Center ("BCDC").
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: Kinsey Rivers, his Arkansas
parole agent; and Mark Bemthal, the probation and parole
supervisor for the district that includes Benton County.
alleges he was held in jail in Tulsa, Oklahoma, on a parole
revocation charge from December 19, 2016, until April 30,
2017. Plaintiff alleges the Defendants failed to extradite
him back to Arkansas in a timely manner. As a result of his
lengthy incarceration in the Tulsa detention center,
Plaintiff states he lost a $15 an hour job and became
around June 21, 2017, Plaintiff alleges the Olathe, Kansas,
Police Department arrested him on the "same
violation." Plaintiff states he was sent back to
Arkansas within 24 hours. Plaintiffs parole revocation
hearing was held on August 17, 2017. According to Plaintiff,
at his hearing, Kinsey Rivers perjured herself by testifying
that the Tulsa detention center had failed to notify the
Arkansas parole officers of Plaintiff being held and
ultimately released. Plaintiff does not allege any facts
suggesting the Arkansas parole officers were notified of his
alleges that he did not contact the parole agents at any time
and did not know what to do after Tulsa County released him.
He states he had no contact with his parole agent Kinsey
Rivers. As relief, Plaintiff seeks compensatory and punitive
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." BellAtl.
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, Plaintiff filed a
prior action against Kinsey Rivers and Mark Bemthal stemming
from the same incidents addressed in this complaint.
Johnston v. Wilkins, era/., Civil No. 5:17-cv-05158.
The prior action was dismissed as frivolous and for
failure-to state a claim under the IFP statute on August 29,
dismissal under the IFP statute "does not bar future
litigation over the merits of a paid complaint making the
same allegations as the dismissed complaint, " a
dismissal under the IFP statute "has res judicata effect
'on frivolousness determinations for future in forma
pauperis petitions.'" Waiter v.
Groose, 38 F.3d 1007, 1008 (8th Cir. 1994) (quoting
Denton v. Hernandez, 504 U.S. 25, 34 (1992)).
Accordingly, the dismissal under the IFP statute of
Plaintiffs "first claim [against Kinsey Rivers and Mark
Bernthal] has res judicata effect and establishes that his
second, identical claim is frivolous" for purposes of
the IFP statute. Waller, 38 F.3d at 1008.
Plaintiffs claims against Mark Bernthal and Kinsey Rivers are
subject to dismissal. Section 1983 provides a federal cause
of action for the deprivation, under color of law, of a
citizen's "rights, privileges, or immunities secured
by the Constitution and laws" of the United States. In
order to state a claim under 42 U.S.C. § 1983, plaintiff
must allege that the defendant acted under color of state law
and that he violated a right secured by the Constitution.
West v. Atkins, 487 U.S. 42 (1988); Dunham v.
Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The
deprivation must be intentional; mere negligence will not
suffice to state a claim for deprivation of a constitutional
right under § 1983. Daniels v. Williams, 474
U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344
the complaint contains no factual allegations indicating that
either of these Defendants was notified of the fact that
Plaintiff was detained in the Tulsa detention center. In
fact, Plaintiff alleges Kinsey Rivers testified that Arkansas
was not notified of this fact. There are no facts alleged