McElroy v. Cody et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS 3 re 2 Complaint filed by Gregory A McElroy. 6 MOTION to Amend/Correct 2 Complaint denied as futile. This dismissal is a PLRA strike. Signed by Judge D. P. Marshall Jr. on 2/7/13. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION PLAINTIFF GREGORY A. McELROY ADC# 92758 v. No. 2:12-cv-198-DPM-JTK T. CODY, Sergeant, East Arkansas Regional Unit, ADC; L. ESTER, Disciplinary Hearing Officer, East Arkansas Regional Unit, ADC; DANNY BURL, Warden, East Arkansas Regional Unit, ADC; RAYMOND NAYLOR, Disciplinary Hearing Administrator, ADC; and RAY HOBBS, Director, ADC DEFENDANTS ORDER Magistrate Judge Jerome T. Kearney has recommended dismissing the complaint as Heck-barred. Document No. 3. McElroy objected and filed a proposed amended complaint clarifying some things and elaborating his claims. On de novo review, FED. R. CIV. P. 72(b)(3), the Court adopts the recommendation as supplemented. Judge Kearney's analysis was correct on the case as it stood at that point. In light of the proposed amended complaint, Document No.6, McElroy's claims still fail as a matter of law because he has clarified that the denied evidence (security logs, video, and witnesses) relates only to whether he had been provided a confiscation form for the prohibited cell phone. Document No. 6, at 4 ~~ 23 & 25. McElroy had no constitutional right to be provided that form; and he has not stated a due-process claim. Motion to amend, Document No. 6, denied as futile. The complaint is therefore dismissed without prejudice. This dismissal, as Judge Kearney recommended, is a PLRA strike. While the Court of Appeals for the Eighth Circuit has not spoken on whether a Heck dismissal counts as a strike, every circuit that has addressed the issue has so concluded. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir.1996); Smith v. Veterans Administration, 636 F.3d 1306, 1312 (10th Cir. 2011); In re Jones, 652 F.3d 36, 38 (D.C. Cir. 2011). So Ordered. v D.P. Marshall Jr. United States District Judge 7 f.ttrw:!v'-z )0/3 I -2-

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