Proctor v. Ark. Dep't of Corr.
| Decision Date | 11 March 2021 |
| Docket Number | No. 4:20-cv-00847-JM-JTR,4:20-cv-00847-JM-JTR |
| Parties | TERRANCE PROCTOR ADC #087410 PLAINTIFF v. ARKANSAS DEPARTMENT OF CORRECTION; et al. DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
The following Recommended Disposition has been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation.
If you do not file objections, Judge Moody can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.
On July 20, 2020, Plaintiff Terrance Proctor ("Proctor"), an inmate at the Varner Supermax Unit ("VSU") of the Arkansas Division of Correction ("ADC") filed a pro se § 1983 Complaint. On October 20, 2020, Proctor filed an Amended Complaint.1 Docs. 1 & 6.
Proctor has named multiple Defendants, including, by category: (1) Governor Asa Hutchinson; (2) the Arkansas Department of Correction ("ADC"); (3) ADC employees Secretary Wendy Kelley, Chief Deputy Director Dexter Payne, Chief Deputy Director Marshall Dale Reed, Superintendent James Gibson, ADC Records Supervisor Nancy Straughn, and Solomon Graves; (4) Parole Board Chairman John Felts and Parole Board members Lona McCastlain, Abraham Carpenter, Jerry Riley, Dawn Benafield, John Belken and Andy Shock; (5) Board of Corrections members Benny Magness, Bobby Glover, Buddy Chadwick, Tyronne Broomfield, William (Dubs) Byer, and Whitney Glass; (6) attorneys Jim DePriest and Christine Cryer; (7) Community Corrections Director Jerry Bradshaw; and (8) John and Jane Does. Doc. 1.
Proctor alleges: (1) his federal constitutional rights were violated when he was repeatedly denied a parole hearing in 2017, 2018 and 2018; (2) his federal constitutional rights were violated when Governor Hutchinson, with input from theParole Board and others, denied his request for executive clemency; (3) his rights under state and federal law were violated by the posting of his entire record of major disciplinary violations on the ADC website; (4) DePriest and Cryer, both attorneys, violated their ethical duties by "encouraging the denial" of parole hearings for Proctor; (5) he should be released from prison or placed in home detention because prison officials have denied him a COVID-19 test and are not taking adequate steps to protect him from contracting Covid-19; and (6) the Defendants conspired to violate his federal civil rights. Proctor sues all the individual Defendants in both their individual and official capacities. He seeks declaratory and injunctive relief, compensatory damages, punitive damages, and "immediate release from custody."
For the reasons explained below, the Court recommends that all of Proctor's claims be dismissed.
Proctor's parole-related claims arise from his allegation that, starting in 2017, when Arkansas adopted the Fair Sentencing of Minors Act ("FSMA"), Act 539 of 2017, he was entitled to a parole hearing.2
The issue of whether Arkansas state law entitles Proctor to a parole hearing is currently before the Arkansas Supreme Court. On July 20, 2020, the same day Proctor filed the Complaint in this case, he filed a declaratory judgment action arguing that, having served 37 years for a sentence imposed on him as a juvenile, he was parole eligible under the FSMA after serving 20 years and requesting an immediate parole hearing. Proctor v. Arkansas Parole Board, et al., Case No. 60CV-20-3958. On November 18, 2020, Circuit Judge Chris Piazza entered an Order ruling that: (1) the FSMA provisions are retroactive; (2) Proctor is parole-eligible under the FSMA: and (3) Defendants must conduct a parole hearing within 90 days. Defendants appealed the ruling to the Arkansas Supreme Court. As of the date of this Recommendation, the case is still pending, with the Appellants' brief due on March 10, 2021. Arkansas Parole Board, et al. v. Proctor, Ark. Sup. Court Case No. CR-21-43. Thus, the Arkansas Supreme Court will have the final say on the FSMA's retroactivity and Proctor's entitlement to a parole hearing.
Even if, beginning in 2017, Proctor was entitled to a parole hearing, the denial of a parole hearing itself fails to state a plausible claim for a violation of his constitutional rights. There is no general federal due process right to parole. SeeSwarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (). Additionally, it is well established that the Arkansas parole statutes do not create a federal constitutional right to a grant of parole.3 Instead, the Arkansas statutes create only the possibility of parole, which is insufficient to create any due process right, either substantive or procedural.4 Finally, the fact that Proctor may have a statutory right to a parole hearing under state law does not give rise to a federally protected liberty interest. Jenner v. Nikolas, 828 F.3d 713, 716-17 (8th Cir. 2016) ().
Because Proctor is litigating the issue of his parole eligibility in state court and has failed to plead a plausible constitutional claim arising from the denial of a parole hearing, the Court recommends that those claims be dismissed, without prejudice.
On June 23, 20201, Governor Hutchinson denied Proctor's application for executive clemency, based in part on the Parole Board's recommendation. Doc. 6 at 61. Proctor has no constitutional right to clemency. See Perry v. Morgan, 122 F.3d 18, 20 (8th Cir.1997) (); Wainwright v. Brownlee, 103 F.3d 708 (8th Cir.1997) (per curiam), and Whitmore v. Gaines, 24 F.3d 1032 (8th Cir.1994).
Because Proctor has failed to plead a plausible constitutional claim arising from the denial of clemency, the Court recommends that those claims be dismissed, without prejudice.
Proctor alleges that, as of December 2017, a record of the disciplinary rule violations he had received before July 1, 2015, were not posted on the ADC's website. However, in 2018, hundreds of disciplinaries had been posted. As of the date of this Recommendation, the ADC's website lists only six disciplinary violations.5
Proctor contends that the posting of his prior disciplinaries violated federal law and a state statute, Ark. Code Ann. § 12-27-145. There is no federal law that protects state prisoners from having their disciplinary records posted online.
Enacted in 2015, Ark. Code Ann. § 12-27-145 addresses the kind of information that can be posted on the ADC's public website.6 Proctor alleges that, he "only" had 80 separate disciplinary incidents, and argues that, under § 12-27-45, the ADC is obligated to post his "disciplinary record" by "disciplinary incident,"rather than posting each individual disciplinary voilation that was involved in the overall "disciplinary incident." According to Proctor, this gave "the appearance [on the website] that there were hundreds of disciplinaries." Doc. 6 at 64-71; Doc. 1 at 11- 12. Ironically, Proctor does not dispute that he actually received hundreds of individual disciplinary convictions, and bases his entire challenge on his own self-serving belief that his disciplinary record must be posted by "disciplinary incident" rather than "individual disciplinary convictions." Doc. 1 at 28.
All of Proctor's claims related to his contention that Defendants violated § 12-27-145 are rooted solely in state law, and involve either an allege private cause of action for the statutory violation itself or a remotely actionable common law claim for defamation.7 Nothing in the legislative history suggests that Ark. Code Ann. § 12- 27-145 was intended to create a private cause of action on behalf of prisonerslike Proctor. Branscumb v. Freeman, 360 Ark. 171, 178, 200 S.W.3d 411, 416 (2004) (). When the statute was enacted, it contained an emergency clause indicating the statute was motivated by "an alarming lack of transparency in the corrections system" in order to protect public safety and to ensure that the public had information about inmates who would soon be considered for parole. Act 1265 of 2015, § 12. Because § 12-27-145 was enacted to protect the public, it seems extremely unlikely that Proctor will be allowed to pursue a state law claim that he has a private cause of action against the Defendants who were responsible for "wrongfully" posting his disciplinary violations on the ADC website.
Because Proctor has failed to plead plausible constitutional claims arising from the alleged posting of his entire history of disciplinary violations on the ADC's public website, the Court recommends that those claims be dismissed, without prejudice.8
Proctor claims that attorneys Jim DePriest ("Mr. DePriest") and Christine Cryer ("Ms. Cryer") violated "ethical duties" in recommending to the ArkansasParole Board that he was not entitled to a parole hearing. This allegation fails to state a claim for relief under either federal or state law. In their role as the attorneys for the Arkansas Parole Board, Mr. DePriest and Ms. Cryer owed Proctor no ethical duty of any kind.
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