United States District Court, E.D. Arkansas, Eastern Division
following Recommended Disposition
("Recommendation") has been sent to United States
Chief District Judge Brian S. Miller. Any party may file
written objections to this Recommendation. Objections must be
specific and include the factual or legal basis for
disagreeing with the Recommendation. An objection to a
factual finding must specifically identify the finding of
fact believed to be wrong and describe the evidence that
supports that belief.
original and one copy of the objections must be received by
the Clerk of this Court within fourteen (14) days of this
Recommendation. If no objections are filed, Judge Miller can
adopt this Recommendation without independently reviewing all
of the evidence in the record. By not objecting, you may also
waive any right to appeal questions of fact.
Darius Dewayne Everett Clay ("Clay") is a prisoner
in the East Arkansas Regional Unit of the Arkansas Department
of Correction. He has filed a pro se § 1983
Complaint and an Amended Complaint alleging that Defendants
violated his constitutional rights. Docs. 2 & 3.
Before Clay may proceed with action, the Court must screen
alleges that Defendants Sergeant Smith, Sergeant Cothren,
Lieutenant Munn, and Captain Randle violated his due process
rights in connection with a Major Disciplinary he received,
on December 27, 2017, for having a cell phone in prison.
Id. As punishment for that offense, Clay: (1) lost
his commissary, phone, and visitation privileges for sixty
days; (2) spent thirty days in punitive isolation; (3)
received a reduction in class; and (4) lost 839 days of good
time credits. Doc. 3 at 11.
was entitled to procedural due process during his prison
disciplinary hearing, only if he had a liberty
interest at stake during that proceeding. See Sandin v.
Conner, 515 U.S. 472, 484 (1995); Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003). Clay did
not have a liberty interest in maintaining his
classification level;avoiding temporary placement in punitive
isolation; or having commissary, phone, and
visitation privileges. It is unclear whether Clay had a federally
protected liberty interest in keeping his earned good time
credits. See Wolff v. McDonnell, 418 U.S. 539,
555-58 (1974); McKinnon v. Norris, 231 S.W.3d 725,
729-30 (Ark. 2006). However, to the extent that Clay does
have such a liberty interest, he must pursue the restoration
of his good time credits in a federal habeas action, and not
a civil rights action. See Preiser v. Rodriguez, 411
U.S. 475 (1973). Importantly, the Supreme Court has extended
this holding to cases in which a prisoner seeks damages, in
lieu of or in addition to the restoration of good time
credits. Heck v. Humphrey, 512 U.S. 477 (1994)
(providing that, if an award of damages to a prisoner in a
civil rights action would necessarily imply the invalidity of
the conviction, continued imprisonment, or sentence, then no
damages claim could be brought until the conviction or
sentence was reversed, expunged, or called into question by a
state tribunal or federal habeas court); Edwards v.
Balisok, 520 U.S. 641 (1997) (applying the Heck
holding to prison disciplinary convictions); Portley-El
v. Brill, 288 F.3d 1063, 1066 (8th Cir. 2002) (same).
Clay's due process challenge to his December 27, 2017
disciplinary conviction should be dismissed, without
prejudice, so that he can pursue his state court remedies
aimed at having it reversed, expunged, or called into
question. If those state remedies are unsuccessful, Clay may
then file a federal habeas action. Only after Clay has
prevailed in overturning his disciplinary conviction, in
either state or federal court, can he file a § 1983
action for damages.
THEREFORE RECOMMENDED THAT:
1. Clay's Complaint and Amended Complaint be DISMISSED,
WITHOUT PREJUDICE, for failing to state a claim upon which
relief may be granted.
2. Dismissal be counted as a "STRIKE, " pursuant to
28 U.S.C. § 1915(g).
3. The Court CERTIFY, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
any Order adopting this Recommendation ...