Johnson v. Baker et al

Filing 8

ORDER adopting 6 the proposed findings and recommended disposition as to all claims except for Johnson's due process claim; allowing Plaintiff's due process claim based on his allegation that he was not permitted to attend the hearing lea ding to his disciplinary confinement to proceed; dismissing, without prejudice, Plaintiff's remaining claims; remanding this case to the magistrate judge for further proceedings consistent with this order; and certifying that an in forma pauperis appeal from this order would not be taken in good faith. Signed by Chief Judge Brian S. Miller on 9/3/2015. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
WILBERT LEZELL JOHNSON
ADC #84494
v.

PLAINTIFF

CASE NO. 1:15CV00081 BSM

BAKER et al.

DEFENDANTS
ORDER

After carefully considering the magistrate judge’s proposed findings and
recommended disposition (“RD”) and plaintiff’s objections, and reviewing the record de
novo, the RD are adopted as to all claims except for Johnson’s due process claim.
Johnson alleges that he was not permitted to appear at the disciplinary hearing
resulting in his punitive isolation sentence. See Am. Compl. ¶¶ 22, 23, Doc. No. 5. This is
sufficient to survive a motion to dismiss because, generally, prisoners have a due process
right to appear at their own prison disciplinary hearings. See Wolff v. McDonnell, 418 U.S.
539, 557 (1974) (a pro se prisoner’s complaint asserting a denial of due process in the steps
leading to solitary confinement should survive a motion to dismiss); Battle v. Barton, 970
F.2d 779, 782 (11th Cir. 1992); Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir. 1989);
Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986); Finney v. Mabry, 528 F. Supp. 567,
574 (E.D. Ark. 1981). Although this right is not absolute, a prison cannot deprive a prisoner
of it without providing reasons that are logically related to the prison’s institutional and
correctional goals. Ponte v. Real, 471 U.S. 491, 497 (1985).
IT IS THEREFORE ORDERED that:
1

Plaintiff’s due process claim based on his allegation that he was not permitted

to attend the hearing leading to his disciplinary confinement may proceed.
2

Plaintiff’s remaining claims are dismissed without prejudice.

3

This case is remanded to the magistrate judge for further proceedings

consistent with this order.
4

It is certified that an in forma pauperis appeal from this order would not be

taken in good faith. 28 U.S.C. § 1915(a)(3)
IT IS SO ORDERED this 3rd day of September 2015.

________________________________
UNITED STATES DISTRICT JUDGE

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