United States District Court, E.D. Arkansas, Western Division
Procedure for Filing Objections:
following Recommended Disposition
(“Recommendation”) has been sent to Judge Susan
Webber Wright. Mr. Halcomb may file written objections with
the Clerk of Court within fourteen (14) days of filing this
Recommendation. Objections must be specific and must include
the factual or legal basis for the objection. An objection to
a factual finding must identify the finding of fact believed
to be wrong and describe the evidence that supports that
objections are filed, Judge Wright can adopt this
Recommendation without independently reviewing the record. By
not objecting, Mr. Halcomb may also waive any right to appeal
questions of fact.
Kirk David Halcomb, an inmate in the Arkansas Department of
Correction, filed this complaint under 42 U.S.C. § 1983.
(Docket entry #2) Mr. Halcomb requested that he be allowed to
proceed in forma pauperis. (#1) The Court granted
that request and ordered that Mr. Halcomb pay the $350.00
filing fee in monthly installments to be collected from his
prison account. (#4)
Halcomb sued Ashley County Circuit Court Judge Don E. Glover,
Prosecuting Attorney Frank Spain, and Public Defender Steven
R. Porch in their official and personal capacities. (#2, at
pp. 1-2) He claims that Defendants conspired to deprive him
of his constitutional rights in retaliation for his
complaints against Mr. Spain and Mr. Porch in an earlier
case. (#2, a pp 5, 9-15)
Mr. Halcomb alleges that during a January 12, 2015 revocation
hearing, Judge Glover told him that he would be released from
probation if he paid all outstanding fees within 90 days.
(#2, at p. 7) Despite allegedly making the required payments,
Mr. Halcomb was arrested for violating his probation. (#2, at
p. 8) He maintains that, during the September 21, 2016
revocation hearing that followed, he reminded Judge Glover
that his probation should be over because he paid his fees on
time. (#2, at p. 8) During the hearing, Mr. Spain allegedly
pointed out that there was no record of Judge Glover having
made that representation. (#2, at p. 8) Mr. Halcomb's
probation was revoked, and he was sentenced to two years'
imprisonment in the Arkansas Department of Correction. (#2,
at p. 9)
to Mr. Halcomb, during the September 21, 2016 revocation
hearing, his attorney, Mr. Porch, had the transcript and
minutes of the January 12, 2015 hearing evidencing Judge
Glover's representation. (#2, at 9) Mr. Halcomb alleges
that Mr. Porch, Mr. Spain, and Judge Glover conspired to keep
that evidence from him in an effort to violate his due
process rights and freedom; that is, to have his probation
revoked. (#2, at 8-10). Mr. Halcomb maintains that Defendants
altered and falsified the record of the revocation
proceedings against him; for example, he asserts that
Defendants altered the record to indicate that he pleaded
guilty, which he denies. (#2, at 10-13) Mr. Halcomb seeks
release from custody and damages. (#2, at 4)
docketing the complaint, or as soon thereafter as
practicable, a prisoner's complaint brought under 42
U.S.C. § 1983 must be reviewed to determine whether it
states a federal claim. Complaints that are frivolous or
malicious; that fail to state a claim upon which relief may
be granted; or that seek monetary relief from a defendant who
is immune from such relief are summarily dismissed. See 28
U.S.C. § 1915A.
a complaint requires only a short and plain statement of the
claim showing that the plaintiff 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 to relief that is plausible on
its face, not merely conceivable. Martin v. Sargent,
780 F .2d 1334, 1337 (8th Cir.1985).
Court recommends dismissal of this lawsuit because Mr.
Halcomb fails to state a claim for relief under 42 U.S.C.
§ 1983, as explained below.
judgment in favor of a prisoner in an action brought under 42
U.S.C. § 1983 would necessarily imply the invalidity of
continued imprisonment, the prisoner cannot pursue a claim
for damages until the sentence has been reversed, expunged,
or called into question by a state tribunal or federal court.
Heck v. Humphrey, 512 U.S. 477, 489 (1994). The
so-called Heck bar has been extended to include