United States District Court, E.D. Arkansas, Pine Bluff Division
SYLVESTER O. BARBEE, ADC #131311 PLAINTIFF
KEITH L. WADDLE, et al. DEFENDANTS
Procedure for Filing Objections
Recommended Disposition (“Recommendation”) has
been sent to Judge D.P. Marshall Jr. Mr. Barbee may file
written objections if he disagrees with any part of the
Recommendation. Objections should be specific and should
include the factual or legal basis for the objection. To be
considered, objections must be received in the office of the
Court Clerk within 14 days of this Recommendation.
objections are filed, Judge Marshall can adopt this
Recommendation without independently reviewing the record. By
not objecting, Mr. Barbee may waive the right to appeal
questions of fact.
O. Barbee, an Arkansas Department of Correction inmate, filed
this civil lawsuit without the help of a lawyer under 42
U.S.C. § 1983. (Docket entry #2) Mr. Barbee claims that
the Defendants violated his due process rights when they
wrongfully convicted him of two disciplinary charges.
result of the first disciplinary conviction, Mr. Barbee lost
commissary, phone, and visitation privileges for sixty days;
he was assigned to punitive isolation for thirty days; and
his classification level was reduced. (#2 at p.9) As a result
of the second disciplinary conviction, his commissary, phone,
and visitation privileges were revoked for sixty days; he was
assigned to punitive isolation for thirty days; his
classification level was reduced; and he lost twenty-five
days of good-time credits. (#2 a p.19)
appeal, Defendant Kelley upheld Mr. Barbee's first
disciplinary conviction. (#2 at p.17) She reversed the second
disciplinary conviction. (#2 at p.22)
complaint, Mr. Barbee sought damages to compensate for the
loss of his good-time credits. The Court directed Mr. Barbee
to clarify whether his good-time credits had been restored.
(#3) In response to the Court's order, Mr. Barbee filed
an amended complaint stating that Defendant Kelley had
restored his good-time credits when she reversed the second
disciplinary conviction at issue. (#6)
Prison Litigation Reform Act (“PLRA”) requires
federal courts to screen prisoner complaints that seek relief
against a governmental entity, officer, or employee. 28
U.S.C. §1915A(a). Before ordering service of process,
the Court is obligated to dismiss claims that are legally
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 paying damages. 28 U.S.C.
complaint, Mr. Barbee claims a violation of his right to due
process. But the protection afforded by the due process
clause is triggered only where the prisoner has a liberty
interest at stake. Sandin v. Conner, 515 U.S. 472,
484 (1995); Phillips v. Norris, 320 F.3d 844, 847
(8th Cir. 2003). Under settled law, a prisoner's liberty
interests are limited to freedom from restraint that
“imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life,
” or from actions that “inevitably affect the
duration of [a prisoner's] sentence.”
Sandin, 515 U.S. at 487.
taking all of the allegations in the complaint and amended
complaint as true, the penalties imposed on Mr. Barbee were
not severe enough to constitute a violation of his liberty
interests. See Moody v. Daggett, 429 U.S. 78, 88 n.
9 (1976) and Portley-El v. Brill, 288 F.3d 1063,
1065-66 (8th Cir. 2002) (inmates have no liberty interest in
maintaining a particular classification level; and thirty
days in punitive segregation is not an atypical and
significant hardship); and Kennedy v. Blankenship,
100 F.3d 640, 642-43 & n.2 (8th Cir. 1996) (placement in
punitive isolation was not atypical and significant hardship
despite restrictions in mail, telephone, visitation,
commissary, and property privileges).
Mr. Barbee's good-time credits, while initially
forfeited, were restored after his second disciplinary
conviction was reversed. As a result, Mr. Barbee “has
no claim as to the loss of good-time credits.”
Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir.
1996) (explaining that, after an inmate's disciplinary
conviction was reversed and his good-time ...