Doss v. Hobbs

Filing 8

ORDER ADOPTING 4 Recommended Disposition from Magistrate Judge: Ms. Doss's claims are dismissed with prejudice. This dismissal will count as a "strike" for purposes of 28 U.S.C. § 1915(g). Ms. Doss's 1 motion to proceed in forma pauperis and her 3 motion to appoint counsel are denied as moot. Her pending 6 motion to file amended petition and in forma pauperis is also denied as moot. The Court certifies that an in forma pauperis appeal of this dismissal would be frivilous and not taken in good faith. Signed by Judge Kristine G. Baker on 5/30/2013. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOY D. DOSS
ADC#707334
v.

PLAINTIFF
Case No. 5:12-cv-407 KGB

RAY HOBBS Director,
Arkansas Department of Corrections, et al.

DEFENDANTS

ORDER
The Court has received a Recommended Disposition (“Recommendation’) from United
States Magistrate Judge Beth Deere. After careful review of the Recommendation, Ms. Doss’s
objections, as well as a de novo review of the record, the Court concludes that the
Recommendation should be, and hereby is, approved and adopted as this Court’s findings.
Plaintiff Joy Doss, an Arkansas Department of Corrections (“ADC”) inmate filed this pro
se complaint under 28 U.S.C. § 2254 as a petition for writ of habeas corpus (Dkt. No. 2). Ms.
Doss was found guilty of the disciplinary on June 17, 2012. As a result, her classification was
reduced to class four, and she was sentenced to 30 days of punitive isolation. Ms. Doss claims
that Captain Bradon provided false information regarding her disciplinary record, the hearing
officer was biased towards her, there was a lack of evidence to support the disciplinary
conviction, the investigation conducted regarding the matter was inadequate, and the disciplinary
hearing violated her due process rights. Ms. Doss seeks to have the disciplinary conviction
removed from her record and an order separating her from the other inmate involved in the
incident in place.

A.

Habeas Corpus Petition

A habeas corpus petition must challenge the length or validity of confinement to fall
within federal subject-matter jurisdiction. Heck v. Humphrey, 512 U.S. 477, 481-482 (1994). A
habeas corpus action “is an attack by a person in custody upon the legality of that custody, and
the traditional function of the writ is to secure release from illegal custody.” Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). Habeas relief is the exclusive remedy when an inmate’s
argument goes directly to the constitutionality of the prisoner’s actual physical confinement and
seeks “immediate release from that confinement or the shortening of its duration.” Id. at 489.
Federal habeas is the exclusive forum in the federal courts for claims challenging disciplinary
decisions which result in the loss of good-time credits which affect the length of an inmate’s
confinement. Portley-el v. Brill, 288 F.3d 1063, 1066 (8th Cir. 2002); see also Preiser, 411 U.S.
at 500 (sole remedy in federal court for prisoner seeking restoration of good-time credits is writ
of habeas corpus). When a prison disciplinary determination is reached and no good-time credits
are eliminated, that decision has no effect on the term of incarceration imposed by the original
criminal judgment of conviction, and a prisoner challenging the decision “raise[s] no claim on
which habeas relief could have been granted on any recognized theory.” Muhammad v. Close,
540 U.S. 749, 754-55 (2004).
Ms. Doss states in her objections to the Recommendation that the “relief sought does not
invalidate or call into question the underlying conviction. The relief sought is a reversal of the
disciplinary and thereby removing it from [her] record” (Dkt. No. 5, ¶ 3). Ms. Doss fails to
allege that she is in custody in violation of the Constitution or laws of the United States. Instead,
Ms. Doss claims that she was denied due process during a disciplinary proceeding. In her
objections to the Recommendation, she claims that this denial of due process will affect the

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length of her confinement in two ways: (1) parole will be more difficult, if not impossible, for
her to achieve and (2) if she is forced to register as a sex offender, she will have to stay
incarcerated longer. As to her first point, the Eighth Circuit has held that there is not a liberty
interest in the possibility of parole. Persechini v. Callaway, 651 F.3d 802, 808 (8th Cir. 2011).
As to her second point, Ms. Doss claims there is an “Arkansas law that when an inmate receives
three disciplinaries for any kind of sexual offense or thereby related to a sexual offense, the
inmate must register as a sex offender and take the sex offender program” (Dkt. No. 5, ¶ 4). The
Court is unaware of any such law or regulation in Arkansas, and Ms. Doss does not provide a
cite to it. Even if this law or regulation did exist, the Court determines on these facts that Ms.
Doss has not demonstrated how it would affect the outcome of her petition because she does not
have a liberty interest in parole. Moreover, she was convicted of capital murder and sentenced to
life

without

parole.

Arkansas

Department

of

Corrections,

http://adc.arkansas.gov/inmate_info/search.php?dcnum=707334&COUNTY=72&sex=F
visited May 30, 2013).

(last

Even if this Court accepts Ms. Doss’s representation regarding the

existence of the law or regulation as true for purposes of deciding this issue, Ms. Doss has not
demonstrated how requiring her to register as a sex offender would impact the length or validity
of her confinement under the circumstances.
Ms. Doss also challenges her 30-day punitive isolation sentence; this, however, is a
temporary confinement that does not raise a constitutional issue for habeas review. See PortleyEl, 288 F.3d at 1065-66 (inmates do not have a constitutionally protected interest in avoiding
temporary disciplinary segregation). She also claims that her change in classification to a class
four gives rise to habeas corpus jurisdiction in that her classification as a class four affects the
conditions of her confinement and not the length of custody. Her status as a class four affects the

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conditions of her confinement, not the fact or length of custody. See Heck, 512 U.S. at 481-82
(a habeas corpus petition must challenge the length or validity of confinement to fall within
federal subject-matter jurisdiction); Sanders v. Norris, 153 Fed. Appx. 403 (8th Cir.
2005)(unpublished per curiam) (holding that inmate did not have a constitutional right to a
particular classification). Here, the relief sought would not invalidate or call into question the
underlying conviction and therefore this claim cannot be brought as a habeas corpus petition.
B.

42 U.S.C. § 1983

A civil rights complaint under § 1983 “is a proper remedy for a state prisoner who is
making a constitutional challenge to the conditions of his prison life, but not to the fact or length
of his custody.” Preiser, 411 U.S. at 484. Even if the Court were to construe the complaint
under 42 U.S.C. § 1983, Ms. Doss still has not stated a claim for relief, and she is adamant this is
not a § 1983 claim. In fact, she even states in her objection that she does not challenge the
conditions of her confinement but instead challenges the hearing that led to the conditions. To
state a claim under § 1983, she would have to allege that a state employee deprived her of a
right, privilege, or immunity secured by the United States Constitution or by laws of the United
States. 42 U.S.C. § 1983. Ms. Doss’s class status was reduced as a result of the disciplinary at
issue; she has no federally protected liberty interest in her classification. See Sanders, 153 Fed.
Appx. at 403 (holding that inmate did not have a constitutional right to a particular
classification). Further, placement in punitive isolation for relatively short intervals, including
the temporary suspension of privileges while so confined, is not the type of “atypical and
significant” hardship that triggers the protection of the due process clause. See Phillips v. Norris,
320 F.3d 844, 847 (8th Cir. 2003)(citing Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir.
1996)).

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C.

Conclusion

Ms. Doss’s claims are dismissed with prejudice. This dismissal will count as a “strike”
for purposes of 28 U.S.C. § 1915(g). Ms. Doss’s motion to proceed in forma pauperis (Dkt. No.
1) and her request for appointed counsel (Dkt. No. 3) are denied as moot. Ms. Doss’s pending
motion for permission to file amended petition and in forma pauperis is denied as moot (Dkt.
No. 6). In addition, the Court certifies that an in forma pauperis appeal of this dismissal would
be frivolous and not taken in good faith.
IT IS SO ORDERED this 30th day of May, 2013.

__________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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