United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge James M. Moody Jr. 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
Algernon Delin Doby, an inmate at the Arkansas Department of
Correction's Cummins Unit, filed a pro se
complaint pursuant to 42 U.S.C. § 1983, alleging that he
was falsely accused and convicted of possessing a phone. Doc.
No. 2. The undersigned finds that Doby 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. Doby contends he was issued a false
disciplinary, convicted, and assigned to 60 days in
administrative segregation. Doc. No. 2 at 5. Doby seeks
reversal of the disciplinary conviction, damages for punitive
days served, damages for pain and suffering, and restoration
of 3, 194 good time days. Id. at 6.
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). Doby 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 proceeding.
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)).
contends he was placed in administrative segregation for 60
days as a result of the disciplinary conviction. 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). Doby does
not describe the conditions he endured in administrative
segregation. Accordingly, Doby describes no conditions that
could constitute the deprivation of a liberty interest.
Doby seeks restoration of lost good time days. While a
prisoner may have a liberty interest in keeping good time
credits he has already earned, he can only pursue the
restoration of those good time credits in a federal habeas
action, after he has exhausted all of his available remedies
in state court. 28 U.S.C. § 2254; Edwards v.
Balisok, 520 U.S. 641, 643-44; Heck v.
Humphrey, 512 U.S. 477 (1994); Portley-El, 288
F.3d at 1066-67. Similarly, a prisoner cannot obtain damages
for the loss of any wrongfully taken good time credits until
his allegedly improper disciplinary convictions are reversed
by the highest state court or in a federal habeas action.
Id. Because Doby seeks damages and restoration of
good time credits for his allegedly wrongful conviction, this
case falls within Heck and Balisok and
should be dismissed for failure to state a claim upon which
relief may be granted.
reasons stated herein, it is recommended that:
1. Doby's claims be dismissed without prejudice for
failure to state a claim upon which ...