Wright v. Hartwell et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 65 ; granting 60 Motion for Summary Judgment; case dismissed with prejudice. Signed by Honorable Susan O. Hickey on February 13, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JOHNNY L. WRIGHT
Case No. 1:14-cv-1037
DETECTIVE SCOTT HARTWELL,
BILLY WHITE, and TREY PHILLIPS
Before the Court is the Report and Recommendation filed January 19, 2017, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 65). Judge Bryant recommends that Defendants’ Motion for Summary Judgment
(ECF No. 60) be granted and that Plaintiff Johnny L. Wright’s case be dismissed with prejudice.
Plaintiff has timely filed objections to the Report and Recommendation. (ECF No. 66). The
Court finds this matter ripe for consideration.
In his Report and Recommendation, Judge Bryant recommends that Plaintiff’s Fourteenth
Amendment claim be dismissed because Plaintiff failed to make any allegations supporting an
inference that his arrest was motivated by racial animus. Judge Bryant also recommends that
Plaintiff’s § 1983 official-capacity claims against Separate Defendants Scott Hartwell, 1 Billy
White, and Trey Phillips—all essentially claims against the City of El Dorado—be dismissed for
failure to state a claim because Plaintiff failed to make any allegations of a custom or policy of
the City of El Dorado that violated his constitutional rights. Judge Bryant recommends that
Plaintiff’s § 1983 individual-capacity claims against Separate Defendants Hartwell, White, and
Phillips be dismissed for failure to state a claim.
The record indicates that Defendant Hartwell’s last name is actually Harwell. However, for consistency, the Court
will refer to him as Hartwell in this order.
Although Plaintiff has filed objections to the Report and Recommendation, the objections
are largely unresponsive to the Report and Recommendation and offer no error of law or fact
from which the Court finds it necessary to depart from the Report and Recommendation.
However, the Court finds that Plaintiff did make a specific objection regarding the
recommendation of dismissal of his Fourteenth Amendment claim.
Pursuant to 28 U.S.C. §
646(b)(1), the Court will conduct a de novo review of all issues related to this specific objection.
Without citing to caselaw, Plaintiff argues that “[f]ederal courts have held that parole is a
liberty interest and therefore has protection under the 14th Amendment of the U.S. Constitution.”
(ECF No. 66). Plaintiff argues further that, as a parolee, he “is at liberty in the community and
therefore possesses certain rights under the U.S. Constitution” which were violated when he was
arrested for Possession of a Firearm by a Certain Person. (ECF No. 66). Plaintiff does not claim
that he is not making an equal protection argument, but based on the fact that his objections
make no mention of equal protection, the Court will assume for purposes of this Order that he is
not making such a claim. 2
The Supreme Court has recognized that parolees facing revocation are entitled to far less
due process than they received when being tried for their original criminal offense. Morrissey v.
Brewer, 408 U.S. 471, 480 (1972). Despite this, parolees do possess a liberty interest under the
Fourteenth Amendment that may be violated if their parole is revoked without them first
receiving the required due process. Id. at 482. At minimum, parolees facing revocation are
generally entitled to the following:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee
of evidence against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront and cross-examine
However, assuming arguendo that Plaintiff did intend to also make an equal protection argument, the Court agrees
with Judge Bryant’s recommendation that Plaintiff failed to allege any facts supporting an inference that his arrest
was motivated by racial animus. Thus, the Court finds that an equal protection claim would be appropriately
adverse witnesses (unless the hearing officer specifically finds good cause for not
allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a
traditional parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to the evidence relied on
and reasons for revoking parole.
Id. at 489.
The Court finds that Plaintiff failed to assert a Fourteenth Amendment claim related to
his parole liberty interest. As discussed above, Plaintiff argues that his liberty interest related to
parole revocation was violated when he was arrested for Possession of a Firearm by a Certain
Person. Plaintiff has not alleged that he received insufficient due process. The record indicates
that Plaintiff received notice of a parole revocation hearing, a hearing was held, Plaintiff argued
and presented witnesses at the hearing, and the hearing was presided over by a hearing judge.
(ECF No. 63). The hearing judge found by a preponderance of the evidence that Plaintiff
violated the conditions of his supervised release, and provided Plaintiff a written statement of the
facts utilized in reaching this determination. The hearing judge’s final disposition was deferred,
and Plaintiff’s parole hold was dropped the same day.
Plaintiff has not alleged that there was an issue with the fairness or process of the
revocation hearing, and the Court finds that he received sufficient due process. Plaintiff’s only
argument appears to be that his liberty interest was violated because he was arrested solely based
on his past criminal history and should not have been arrested in the first place. The Court is
unpersuaded by this argument due to the fact that the record indicates that Plaintiff was also
arrested based on his neighbor’s statement to the police that she saw him firing a gun within city
limits while he was on parole. Thus, the Court finds that Plaintiff failed to assert a Fourteenth
Amendment claim related to his parole liberty interest.
Accordingly, the Court finds that
dismissal of Plaintiff’s Fourteenth Amendment claim is appropriate.
Upon de novo review of the Report and Recommendation, and for the reasons discussed
above, the Court overrules Plaintiff’s objections and adopts the Report and Recommendation.
(ECF No. 65).
Defendants’ Motion for Summary Judgment (ECF No. 60) is hereby
GRANTED. Plaintiff’s case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 13th day of February, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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