Boen v. Arkansas Department of Correction et al

Filing 3

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint be dismissed with prejudice, and that his 1 motion for leave to proceed in forma pauperis be denied as moot; and recommending that the dismissal count as a "strike" for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith Objections to R&R due by 3/26/2009. Signed by Magistrate Judge Beth Deere on 3/12/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION J E F F R E Y LEE BOEN A D C #140867 VS. C A S E NO.: 5:09CV00072 BSM/BD PLAINTIFF A R K A N S A S DEPARTMENT O F CORRECTION, et al. DEFENDANTS R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District J u d g e Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If an objection is to a factual finding, specifically identify that finding and the e v i d e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than eleven (1 1 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A-149 L ittle Rock, AR 72201-3325 II. B a c k gro u d : P la in tif f , who is incarcerated at the Pine Bluff Unit of the Arkansas Department of C o rre c tio n ("ADC"), filed a pro se Complaint (docket entry #2) under 42 U.S.C. 1983, a lo n g with an Application for Leave to Proceed In Forma Pauperis (#1). For the f o llo w i n g reasons, the Court recommends that Plaintiff's Complaint (#2) be DISMISSED w ith prejudice, and that his Application for Leave to Proceed In Forma Pauperis (#1) be D E N IE D as moot.1 III. D is c u s s io n : P lain tiff filed this action alleging that he has not been able to participate in a work re le a s e program based upon the presence of an escape arrest in his criminal history. Plaintiff argues that he was never charged or convicted of escape and that this arrest s h o u ld not be taken into account when determining his eligibility for work release.2 P la in tif f 's Complaint fails to state a claim under 42 U.S.C. 1983. The Prison Litigation Reform Act ("PLRA") requires federal courts to screen p ris o n e r complaints seeking relief against a governmental entity, officer, or employee. 28 U .S .C . 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner If the Court had determined that Plaintiff stated a claim under 1983, Plaintiff's A p p lica tio n would have either been denied or held in abeyance because Plaintiff failed to p ro v id e the documentation required by 28 U.S.C. Section 1915(a). Based on the documentation Plaintiff attached to his Complaint, it appears that h e was arrested for escape on October 15, 2000. However, Plaintiff was never charged or c o n v ic te d of escape. 2 2 1 h a s raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon w h ic h relief may be granted; or (c) seek monetary relief from a defendant who is immune f ro m such relief. 28 U.S.C. 1915(e)(2)(B). To state a cognizable claim under 42 U.S.C. 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him or her of a right, p riv ile g e , or immunity secured by the federal Constitution or laws of the United States. 42 U .S .C . 1983. While a court must accept the factual allegations in the complaint as true a n d hold a plaintiff's pro se complaint "to less stringent standards than formal pleadings d ra f te d by lawyers," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a p la in tif f still must assert facts sufficient to state a claim as a matter of law. Martin v. S a r g e n t, 780 F.2d 1334, 1337 (8th Cir. 1985). Broad conclusory allegations, even in a p ro se complaint, are insufficient to state a claim under 42 U.S.C. 1983. Grady v. W ilk e n , 735 F.2d 303, 305 (8th Cir. 1984). In deciding whether a plaintiff has failed to state a claim, the Court must determine w h e th e r the plaintiff has pleaded facts with enough specificity "to raise a right to relief a b o v e the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S.544, 127 S.Ct. 1 9 5 5 , 1965 (2007) (citations omitted). A complaint cannot simply "[leave] open the p o ssibility that a plaintiff might later establish some `set of undisclosed facts' to support re c o v ery." Id. at 1968 (citation omitted). Rather, the facts set forth in the complaint must 3 b e sufficient to "nudge the[ ] claims across the line from conceivable to plausible." Id. at 1974. H e re , Plaintiff alleges that his constitutional rights have been violated because he h a s not been permitted to participate in a work release program. However, "there is no c o n stitu tio n a lly based liberty interest in participating in a work release program." Mahfouz v. Lockart, 826 F.2d 791, 792 (8th Cir. 1987) (per curiam). An inmate does not h a v e a protected liberty interest in any particular prisoner classification or eligibility for re h a b ilita tiv e programs. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). Although "a state m a y create such a liberty interest when its statutes or regulations place substantive lim ita tio n s on the exercise of official discretion or are phrased in mandatory terms," see M a u fo u z , 826 F.2d at 792 (citing Bd. of Pardons v. Allen, 482 U.S. 369 (1987); Olim v. W a k in e k o n a , 461 U.S. 238, 249 (1983); Greenholtz v. Inmates of Nebraska Penal & Corr. C o m p le x , 442 U.S. 1, 11-12 (1979); Parker v. Corrothers, 750 F.2d 653, 657 (8th Cir. 1 9 8 4 )) , that is not the case under Arkansas law. The Arkansas statute governing prisoners' participation in work release programs is c o d if ie d in Ark. Code Ann. 12-30-401 and provides: (a) All inmates committed to the Department of Correction for institutional care s h a ll be required to participate in the various work programs to which assigned and m a y be afforded vocational training and rehabilitative opportunities in accordance w ith rules, regulations, and procedures therefor as promulgated by the Director of th e Department of Correction with the approval of the Board of Corrections. (b ) The department may institute "work-release" programs under which the inmates s e le c te d to participate in the programs may be gainfully employed or attend school 4 o u ts id e of the units maintained by the department, under rules and regulations p ro m u lg a te d by the director with the approval of the board (emphasis added). Based on the permissive non-mandatory language of the Arkansas state statute a u th o riz in g work release programs, the Mahfouz court specifically held that "Arkansas' w o rk release statutes and regulations do not create a protectible liberty interest" in p a rtic ip a tio n in such programs. Mahfouz, 826 F.2d at 793. "Although the regulation c o n ta in s substantive criteria to be used in determining eligibility for the work release p ro g ra m , the unit warden, assistant director, director, and Board retain broad discretion in s e le c tin g eligible inmates to participate in the program." Id. Accordingly, Plaintiff's c la im fails, and pre-service dismissal under 28 U.S.C. 1915A is appropriate. IV . C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED with p re ju d ic e , and that his motion for leave to proceed in forma pauperis (#1) be DENIED as m o o t. In addition, the Court recommends that the dismissal count as a "strike" for p u rp o s e s of 28 U.S.C. 1915(g), and that the District Court certify that an in forma p a u p e ris appeal taken from the order and judgment dismissing this action would be f riv o lo u s and not taken in good faith. D A T E D this 12th day of March, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 5

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