McElroy v. Cody et al
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)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
GREGORY A. McELROY
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
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,
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).
D.P. Marshall Jr.
United States District Judge
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