Nelson v. Felts

Filing 9

ORDER DISMISSING CASE for plaintiff's failure to state a claim upon which relief may be granted. This dismissal counts as a "strike," and the Court certifies that an ifp appeal would not be taken in good faith. All pending motions are denied as moot. Signed by Judge James M. Moody on 10/2/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
JULIA NELSON
ADC #710619
V.

PLAINTIFF

NO: 4:12CV00598 JMM

JOHN FELTS

DEFENDANT

ORDER
Plaintiff Julia Nelson, an inmate who is currently incarcerated at the McPherson Unit of the
Arkansas Department of Correction (“ADC”), filed a pro se complaint (docket entry #2) on
September 20, 2012, naming as a Defendant John Felts, who is chairman of the Arkansas Parole
Board.
I. Screening
Before docketing the complaint, or as soon thereafter as practicable, the Court must review
the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. § 1915A. Fed.R.Civ.P. 8(a)(2)
requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (overruling Conley v. Gibson,
355 U.S. 41 (1967), and setting new standard for failure to state a claim upon which relief may be
granted), the Court stated, “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....Factual allegations must be enough to raise a right to relief above the
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speculative level,” citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235236 (3d ed. 2004). A complaint must contain enough facts to state a claim to relief that is plausible
on its face, not merely conceivable. Twombly at 570. However, a pro se plaintiff's allegations must
be construed liberally. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044
(8th Cir.2002) (citations omitted).
II. Analysis
According to Plaintiff, who is black, Felts has violated her Equal Protection rights by
granting parole to a large number of white inmates, while continuing to deny her parole. Plaintiff
claims that the unequal treatment has occurred even though the white inmates have been convicted
of violent offenses similar to, or more serious than, hers. Plaintiff further claims that when she
notified Felts of her intent so sue, he began retaliating by cancelling her personal appearances before
the parole board. Plaintiff seeks damages and her immediate release.
It is well settled that parole board members are absolutely immune from suit when
considering or deciding parole questions. Patterson v. Von Reisen, 999 F.2d 1235, 1238-39 (8th Cir.
1993). It is clear that Plaintiff’s claims against Felts are based on decisions he has made in
considering or deciding parole questions. Accordingly, Felts enjoys absolute immunity, and
Plaintiff’s complaint must be dismissed.1
III. Conclusion

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Plaintiff’s only remedy for challenging the lawfulness of her continued incarceration is a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254. See Wilkinson v. Dotson, 544 U.S. 74, 81
(2005) (state prisoners may use only habeas remedies when they seek to invalidate duration of
confinement, either directly through injunction compelling speedier release or indirectly through
judicial determination that necessarily implies unlawfulness of State's custody); Echols v. Kemna,
511 F.3d 783, 785 (8th Cir. 2007) (explaining that a petitioner generally must fully exhaust all
available state remedies before commencing a federal habeas action to invalidate his commitment).
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IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s complaint is DISMISSED WITH PREJUDICE for failure to state a claim

upon which relief may be granted.
2.

This dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g).

3.

The Court certifies that an in forma pauperis appeal taken from the order and

judgment dismissing this action is considered frivolous and not in good faith.
4.

All pending motions are DENIED.

DATED this 2nd day of October, 2012.

UNITED STATES DISTRICT JUDGE

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