United States District Court, E.D. Arkansas, Northern Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge J. Leon Holmes. You may file
written objections to all or part of this Recommendation. If
you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection, and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Kevin Randall Biggers, an inmate at the Arkansas Department
of Correction's Delta Regional Unit, filed a pro
se complaint pursuant to 42 U.S.C. § 1983 raising
numerous factually unrelated claims against multiple
defendants (Doc. No. 2). Biggers was instructed to file an
amended complaint narrowing his claims. See Doc. No.
5. Biggers filed an amended complaint narrowing his claims to
those surrounding certain disciplinary proceedings.
See Doc. No. 6. Specifically, he challenges the
fairness of the disciplinary proceedings against him and his
resulting parole revocation. Id. at 2-4. He
complains that the defendants do not maintain an adequate
grievance procedure. Id. at 4. Finally, he alleges
that Defendants retaliated against him for using the
grievance procedure by revoking his parole and transferring
him to the Arkansas Department of Corrections. Id.
The undersigned finds that Biggers fails to describe facts
sufficient to state a claim for relief and recommends
dismissal of his claims.
law requires courts to screen prisoner complaints. 28 U.S.C.
§ 1915A, 1915(e)(2). Claims that are legally frivolous
or malicious; that fail to state a claim for relief; or that
seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served. 28
U.S.C. § 1915A, 1915(e)(2). Although a complaint
requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, the factual
allegations set forth therein must be sufficient to raise the
right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007) (“a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment]to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . .”).
While construed liberally, a pro se complaint must
contain enough facts to state a claim for relief that is
plausible on its face, not merely conceivable.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that the conduct of 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.
42 U.S.C. § 1983. It appears that Biggers is asserting a
Fourteenth Amendment due process and/or equal protection
claim based on the disciplinary proceedings against him.
According to Biggers' complaint, he was incarcerated in
the Sharp County Jail on August 13, 2017, in connection with
a parole violation. Doc. No. 6 at 2. He states:
After a parole violation hearing, conducted on August 29,
2017, it was determined that Plaintiff: “offender is to
remain in the County Jail for 90 days contingent upon good
behavior and eligibility. If the offender fails to abide by
the terms of the short term revocation program, the offender
will be transferred to the Arkansas Department of Correction
to complete the balance of the 6 month revocation
term.” . . .
Id. On September 1, 2017, Biggers was disciplined
for exercising with no shirt on. Id. On September 6,
2017, Biggers was disciplined for having a bag of water in
his cell. Id. Biggers claims that other inmates have
done the same things and not been disciplined. Id.
Biggers was placed on 72-hour lock-down as a result of each
disciplinary. Id. at 2-3. The second disciplinary
also resulted in Biggers' full parole revocation and
transfer to the ADC. Id. at 3. Biggers seeks money
damages and injunctive relief. Id. at 5.
state a Fourteenth Amendment due process claim, a plaintiff
must “demonstrate that he was deprived of life, liberty
or property by government action.” Phillips v.
Norris, 320 F.3d 844, 846 (8th Cir. 2003). Biggers was
not deprived of life or property; accordingly, he must
identify the deprivation of a liberty interest to sustain a
due process challenge to his prison disciplinary proceedings.
Id. at 847; Sandin v. Conner, 515 U.S. 472,
484 (1995). A prisoner has no liberty interest in having
certain procedures followed in the disciplinary process;
rather, the liberty interest arises from the “nature of
the prisoner's confinement.” Phillips, 320
F.3d at 847. “In order to determine whether an inmate
possesses a liberty interest, we compare the conditions to
which the inmate was exposed in segregation with those he or
she could ‘expect to experience as an ordinary incident
of prison life.'” Phillips, 320 F.3d at
847 (quoting Beverati v. Smith, 120 F.3d 500, 503
(4th Cir. 1997)).
was placed on 72-hour lock-down as a result of each
disciplinary. An inmate has no liberty interest in avoiding
segregated confinement, as long as the conditions do not
amount to an “atypical and significant” hardship
that would give rise to due process protection as set forth
in Sandin v. Conner, 515 U.S. 472, 483-484 (1995).
The Eighth Circuit Court of Appeals has “consistently
held that administrative and disciplinary segregation are not
atypical and significant hardships under
Sandin.” Portly-El v. Brill, 288 F.3d
1063, 1065 (8th Cir. 2002). Biggers does not describe the
conditions he endured while on lock-down other than to
complain he missed a visit from a friend. Biggers describes
no change in conditions that could constitute the deprivation
of a liberty interest.