Williams v. Minor

Filing 10

ORDER ADOPTING 4 the recommended disposition with modification and dismissing 2 Williams's complaint, without prejudice, for failure to state a claim, which constitutes a "strike" under under 28 U.S.C. § 1915(g). No certification will be made as to the good faith nature of an in forma pauperis appeal. Signed by Chief Judge Brian S. Miller on 5/26/2016. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CHRISTOPHER W. WILLIAMS
ADC #153430
v.

PLAINTIFF

CASE NO. 5:16-CV-00094 BSM

JUSTINE MINOR, Disciplinary Hearing
Officer, Delta Regional Unit

DEFENDANT

ORDER
The recommended disposition (“RD”) submitted by United States Magistrate Judge
Joe J. Volpe [Doc. No. 4] and plaintiff Christopher Williams’s objections [Doc. Nos. 7, 8]
have been reviewed. After a de novo review, the RD is adopted with modification.
The RD dismisses the complaint because the allegations did not implicate a protected
liberty interest. As Williams notes, the RD does not mention his loss of good time credit,
which could be such an interest. Doc. No. 8 at 2–3; see Wolff v. McDonnell, 418 U.S. 539,
556–59 (1974); Sandin v. Conner, 515 U.S. 472, 477–78 (1995). This is a not a blanket rule,
however, as state law, not the federal Constitution, determines whether a state created the
protected interest. Sandin, 515 U.S. at 484; Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th
Cir. 1997) (a state retains the right to interpret availability of state-conferred interest).
Although some states have created this protected interest, Arkansas has not. Williams
points to Ark. Code Ann. § 12-29-201 as the statutory right to good time credit. Doc. No.
8 at 3. That provision does not create an entitlement to good time, however, because it is
permissive and not absolute. See Ark. Code Ann. § 12-29-201(a) (an inmate “may be
entitled” to good time) (emphasis added)). Furthermore, good time in Arkansas does not

reduce the length of a sentence, id. § 12-29-201(d), but only the location and conditions of
confinement, id. § 12-29-201(e)(1). See id. § 16-93-1302(d) (good time “shall not be
considered as a reduction in sentence”). The Arkansas Supreme Court has concluded that
this language does not create a protected liberty interest, which the federal district court has
adopted. See, e.g., Curtis v. Kelley, Case No. 4:15-CV-00098 DPM (E.D. Ark. Apr. 13,
2016), Doc. No. 35 (“Arkansas hasn’t created a liberty interest in good time credits.”);
Cooper v. Norris, No. 5:09-CV-00278 SWW, 2009 U.S. Dist. LEXIS 109852 (E.D. Ark. Oct.
27, 2009); McKinnon v. Norris, 231 S.W.3d 725, 730 (Ark. 2006) (“Arkansas has not created
a liberty interest in good time under [Wolff].”).
Accordingly, Williams’s complaint is dismissed without prejudice for the failure to
state a claim, which constitutes as a “strike” under 28 U.S.C. § 1915(g). No certification will
be made as to the good faith nature of an in forma pauperis appeal.
IT IS SO ORDERED this 26th day of May 2016.

UNITED STATES DISTRICT JUDGE