United States District Court, E.D. Arkansas, Western Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Susan Webber Wright. 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 the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
Roy Lee Boles (“Boles”) is an inmate at the
Ouachita River Unit of the Arkansas Department of Correction.
He filed this pro se § 1983 action alleging
that Triggs, a Parole Officer, and Goree and McGowan, both
North Little Rock Police Officers, conspired against him.
Boles's Complaint (Doc. 1) did not
contain sufficient information to allow the Court to properly
screen his claims as mandated by 28 U.S.C. §§
1915(e) and 1915A, the Court directed Boles to file an
amended complaint. In his Amended Complaint, Boles added
Parole Officer Marve as a Defendant. Doc. 9.
Boles alleges that Triggs, Goree, McGowan, and Marve
conspired to incarcerate him and violate his due process
rights. Id. at 1. The Court now resumes its
screening of Boles's claims.
sued Triggs, Goree, McGowan, and Marve in connection with the
revocation of his parole. Docs. 1, 9. Defendants
allegedly conspired to revoke Boles's parole and violate
his due process rights. Doc. 9, at 1-2. In support
of the alleged conspiracy, Boles alleges that: Goree
discussed with Marve the possibility of battery charges being
filed against Boles; Marve and Triggs, Marve's
supervisor, alerted Boles to the possible upcoming charges;
during a telephone call, Goree informed Marve that Goree had
a warrant for Boles's arrest; and two officers arrested
Boles without a warrant. Id. at 1-2. Boles maintains
that his due process rights were violated because: he was not
allowed to confront witnesses or his accuser; his parole was
violated in connection with charges that were dismissed; his
parole was violated in connection with charges that had not
yet been resolved; and because he was not given a copy of the
hospital report evidencing the attack in connection with
which he was charged with second degree battery. Doc.
9, at 1-2; Doc. 1, at 6-8. Boles seeks damages
for the alleged violations of his federally-protected rights.
Doc. 1, at 11.
claims that Defendants conspired to incarcerate him and
violate his due process rights are Heck-barred. The
United States Supreme Court has held that if a judgment in
favor of a prisoner in a section 1983 action would
necessarily imply the invalidity of the conviction, continued
imprisonment, or sentence, then no claim for damages lies
unless the conviction or sentence is reversed, expunged, or
called into question by issuance of a federal writ of
habeas corpus. Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). The holding in Heck is
applicable to claims that would imply the invalidity of a
parole revocation. Newmy v. Johnson, 758 F.3d 1008,
1011-12 (8th Cir. 2014). Further, the principal barring
collateral attack “is not rendered inapplicable by the
fortuity that a convicted criminal is no longer
incarcerated.” Entzi v. Redmann, 485 F.3d 998,
1003 (8th Cir. 2007) (citing Heck, 512 U.S. at 490
n.10). Boles's allegations, if established, would imply
the invalidity of his parole revocation, and there is no
indication that the revocation was ever called into
question. See, for example, Campbell v. Williams,
No. 5:10-cv-00312-SWW, 2011 WL 1576367 (E.D. Ark. Apr. 26,
2011) aff'd 11-2140 (8th Cir. Aug. 15, 2011).
Accordingly, Boles's conspiracy claims should be
extent that Boles seeks to challenge the sufficiency of the
evidence on which his parole was revoked, that claim is also
also alleges that his rights were violated because his parole
was revoked based on charges that (1) were ultimately
dismissed and (2) had not yet been
resolved -- in other words, that he had not been
convicted of a crime at the time his parole was revoked.
Doc. 1, at 9; Doc. 9, at 2. The
state must prove a parole violation by a preponderance of the
evidence, not beyond a reasonable doubt as in a criminal
case. See, for example, Lemons v. State, 310 Ark.
381 (1992); Morrissey v. Brewer, 408 U.S. 471,
486-89 (1972). Accordingly, no conviction is required for a
parole revocation; a finding of a violation by the
preponderance of the evidence suffices. Beyond that, these
challenges to his revocation are likewise
Heck-barred. Accordingly, the Court
recommends that Boles's Complaint (Docs. 1, 9)
be dismissed, with prejudice.
THEREFORE RECOMMENDED THAT:
1. Boles's complaint be DISMISSED, WITH PREJUDICE, for
failure to state a claim on which relief may be granted.
2. Dismissal constitute 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 ...