Davis v. Smith et al

Filing 9

REPORT AND RECOMMENDATIONS re 1 Complaint Referred (42:1983) filed by Jacob Austin Davis, recommending complaint be dismissed. Objections to R&R due by 9/29/2008. Signed by Honorable Barry A. Bryant on September 12, 2008. (cap)

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IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION JA C O B AUSTIN DAVIS v. C iv il No. 4:08-cv-04040 PLAINTIFF WAYNE SMITH, Warden, S o u th w est Arkansas Community Corrections; RICH HINTON, C aptain of Security, Southwest A r k an sas Community Corrections DEFENDANTS R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE Jac o b Austin Davis (hereinafter "Plaintiff" or "Davis") filed this civil rights action pursuant to 42 U.S.C. 1983. He proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. 636(b)(1) and (3)(2007), the Honorable Harry F. Barnes, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. The case is before me for a determination of whether service of process should issue. U po n review of the complaint, I believed more information was needed regarding Davis' claims. F or this reason, I propounded a questionnaire to Davis (Doc. 5). His response to the questionnaire was file d as an addendum to his complaint (Doc. 7). BACKGROUND W h en he filed this case, Davis was incarcerated at the Southwest Arkansas Community C o r rectio n Center (SWACCC) in Texarkana, Arkansas. He was serving a two year sentence for fo r g e r y. He was incarcerated at the SWACCC from September 24, 2007, until July 1, 2008. A d d en d u m (Doc. 7) at 1. In March of 2008, Davis indicates he was charged with both a disciplinary violation for po ssessing, using, or concealing contraband and a criminal offense of introducing prohibited articles into a correctional facility in violation of Ark. Code Ann. 5-54-119 after he handed a cigarette to -1- C o u n selo r Buckley. According to Davis, he had not smoked the cigarette or even touched it until ord ered to hand it to Buckley. Prior to his conviction of the disciplinary violation, he received notice of the charges against h im was, given a hearing, an opportunity to tell his side of the story, and an opportunity to present w itnesses if he desired to do so. Addendum at 3. He also had an opportunity to appeal the disciplinary conviction. Id. Davis was convicted of the criminal charge of introducing prohibited articles into a correctional facility in violation of Ark. Code Ann. 5-54-119 on June 3, 2008. Addendum at 4. He was sentenced to two years imprisonment with one year suspended. Id. His term of imprisonment was to b e served at the Arkansas Department Correction and to run consecutively with his Department of C om m un ity Correction sentence. Id. As relief, Davis asks that the "free world" charge be dropped and he be allowed to finish his p ro gra m . He maintains that other residents at the SWACC have been caught with contraband and did no t have criminal charges brought against them. He asserts Warden Smith stated if Davis did not plead gu ilty he would be charged as a habitual offender. Davis states he could not take that chance. With resp ect to Rich Hinton, Davis asserts Hinton kept saying there was no chance Davis would be found n o t guilty and kept telling him to hurry up and plead guilty. D IS C U S S IO N D avis' claims are subject to dismissal. First, Davis' claims stemming from his criminal charge fo r introducing prohibited articles into a correctional facility in violation of Arkansas law are not p resen tly cognizable. In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), th e Supreme Court held that a claim for damages for "allegedly unconstitutional conviction or im p riso n m e n t, or for other harm caused by actions whose unlawfulness would render a conviction or -2- sen ten ce invalid" is not cognizable until "the conviction or sentence has been reversed on direct appeal, ex p u n ged by executive order, declared invalid by a state tribunal authorized to make such a d e te rm in a tio n , or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 51 2 U.S. 486-87. Here, Davis is currently serving a sentence on this conviction. The conviction has n o t been reversed, set aside, or otherwise held invalid. His claim therefore cannot proceed. S econ d, with respect to the disciplinary charge, Davis concedes he was given notice, an op po rtun ity to be heard, an opportunity to present witnesses, and an opportunity to appeal. Due Process requ ires no more. See Wolff v. McDonnell, 418 U.S. 539, 563-66, 570, 94 S. Ct. 2963, 41 L. Ed. 2d 93 5 (1974)(The procedures include: written notice of the charges, a brief period to prepare, a written statem en t of the evidence relied on and the reasons for the disciplinary action, and the ability for the inm ate to call witnesses and present documentary evidence). Third, to the extent Davis attempts to state a claim for malicious prosecution, the "Constitution does not mention malicious prosecution nor do[es Davis] cite a basis for a federal action for malicious prosecution." Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001). The Eighth Circuit has "uniformly held that malicious prosecution by itself is not punishable under 1983 because it does not allege a constitutional injury." Id. CONCLUSION I therefore recommend that the complaint be dismissed as the claims are frivolous, fail to state claim s upon which relief may be granted, and are not presently cognizable under 42 U.S.C. 1983. See 28 U.S.C. 1915(e)(2)(B)(i)-(iii)(IFP action may be dismissed on such grounds at any time). Davis has ten days from receipt of the report and recommendation in which to file written o b je ct ion s pursuant to 28 U.S.C. 636(b)(1). The failure to file timely objections may result in -3- w a iv e r of the right to appeal questions of fact. Davis is reminded that objections must be both t im e ly and specific to trigger de novo review by the district court. D A T E D this 12th day of September 2008. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE -4-

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