Murphy v. Davenport

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

BRADY A. MURPHY PLAINTIFF

v. Civil No. 4:20-cv-04026

PAROLE OFFICER TIFFANY DAVENPORT;

PAROLE OFFICER HEATH JAMES ROSS;

PAROLE OFFICER VINCENT GAMBLE;

JAILER BRITTNEY GILBERT; PAROLE

OFFICER JESSE DAVIS; and JAILER

LACIE GRACE DEFENDANTS

ORDER

Before the Court is the issue of preservice screening pursuant to the Prison Litigation

Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Brady A. Murphy filed this case pro se

pursuant to 42 U.S.C. § 1983. Under the PLRA, the Court is obligated to review complaints in

civil actions in which a prisoner seeks redress from a governmental entity, officer, or employee.

I. BACKGROUND

Plaintiff filed his Complaint on March 24, 2020. (ECF No. 1). His application to proceed

in forma pauperis was granted on April 8, 2020. (ECF No. 9). That same day, in response to this

Court’s order, Plaintiff filed an Amended Complaint to clarify his claims. (ECF No. 7). Plaintiff

has named Tiffany Davenport, Heath James Ross, Vincent Gamble and Jesse Davis—all identified

in the Amended Complaint as parole officers—and Brittney Gilbert and Lacie Grace—jailers at

the Howard County Jail—as defendants.

Plaintiff describes Claim One as “like of probable cause.” (ECF No. 7, p. 4). He states on

December 12, 13, and 28, 2019, Defendants Davis, Gilbert and Grace were involved in a violation

of his rights as follows, “I was lied on by these jailers which violated my 4th amendment like of

probable cause, my 5th amendment denied me due process, my 8th amendment subject me to cruelty

which is also protected by my 14th amendment.” Id. Plaintiff describes his official capacity claim

for Claim One as follows, “the parole report is based on Arbartary theres no facts to support the

Allegations just conjucture statements.” Id. at p. 5.

Plaintiff describes Claim Two as “no verfyed facts”. (ECF No. 7, p. 5). Plaintiff alleges

on December 12, 13, and 28, 2019, Defendants Davenport, Ross and Gamble violated his

constitutional rights because “a parole violation is suppose to be based on verfiyed facts all that’s

in the report is arbartary Im doin a parole violation for its cruelty.” Id. He describes his official

capacity claim as follows, “I never was served an arrest warrant for terroristic threatening while in

Howard County Jail I only received a parole warrant after I was violated Denial of Due Process”.

Id. at p. 6.

In Claim Three, Plaintiff alleges on December 12, 13, and 28, 2019, “my liberty was taken

on ‘hearsay.’” (ECF No. 7, p. 6). He identifies the name of each Defendant involved and the acts

or omissions of Defendant(s) that form the basis for Claim Three as “Same.” Id. Plaintiff describes

his official capacity claim as “No factual bases for a violation Report just arbartary no charges of

criminal libitily was ever filed I never received any criminal warrant.” Id. at p. 10.

On pages 7-9 of the Amended Complaint, Plaintiff more fully describes his claims as

follows:

Plaintiff was arrested on the first 90 for absconding for his parole

violation…January 6th his parole violation was started over on a Terroristic

threatening charge that his rights were never read never finger printed or reseaved

any paper work on the charge. It was all based on Arbartary and conjucture

statements…No circuit warrent for terroristic threatening was ever issued …Lacie

Grace, Jesse Davis, and Brittney Gilbert wrote false statements against Mr. Murphy

and his liberty was revoked…

Id. Attached to the Amended Complaint is what appears to be a portion of a Probation Report

setting forth statements, presumably provided by Defendants Gilbert, Davis, and Grace,

concerning several conditions which violated Plaintiff’s parole (ECF No. 7, p. 11), and an

Arkansas Community Correction Waiver of Revocation Hearing dated January 9, 2020, signed by

Plaintiff and Defendant Ross. (ECF No. 7, p. 12).

II. APPLICABLE LAW

Under the PLRA, the Court is obligated to screen a case prior to service of process being

issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are

frivolous, malicious, or fail to state a claim upon which relief may be granted; or, (2) seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted

sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded . . . to less

stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537,

541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even a pro se Plaintiff

must allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337

(8th Cir. 1985).

III. DISCUSSION

A. Parole Revocation

Plaintiff’s allegations regarding the revocation of his parole do not support any plausible

claim upon which relief can be granted.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a defendant, acting

under color of state law, deprived him of a right, privilege, or immunity secured by the United

States Constitution or by federal law. See West v. Atkins, 487 U.S. 42, 48 (1988). It is well settled

that inmates do not have a constitutionally protected liberty interest in the possibility of parole or

probation as required for a due process claim. See Hamilton v. Brownlee, 237 Fed. Appx. 114,

115 (8th Cir. 2007) (“Arkansas parole statutes do not create a protectable liberty interest in

discretionary parole decisions, and [plaintiff] had no protectable liberty interest in having

defendants follow their hearing policy.”). Absent a protectable liberty interest, due process

protections are not implicated. Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006)

(stating that the first question in procedural due process claim is whether plaintiff has been

deprived of protected liberty or property interest). Plaintiff does not have a constitutionally

protected liberty interest in the possibility of parole, and thus, he cannot sustain a due process

claim.1 Id.

Likewise, Plaintiff’s allegations that his Fourth, Fifth, Eighth, and Fourteenth Amendment

rights were violated because the parole report lacked probable cause, was not based on verified

facts, and contained “hearsay” evidence provided by Defendants Gilbert, Davis and Grace are

insufficient to state a claim. Even if Plaintiff’s Amended Complaint could somehow be construed

to create a viable liberty interest, his claims are clearly an attack on the parole revocation

proceedings themselves and his subsequent conviction. Plaintiff is barred from bringing such

claims until his convictions are invalidated by the highest state court or in a federal habeas

proceeding. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff may not use the civil rights

statutes as a substitute for habeas corpus relief. In other words, he cannot seek relief pursuant to

section 1983 relating to the revocation hearing and his subsequent confinement. See, e.g., Edwards

v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriquez, 411 U.S. 475, 500 (1973) (habeas

1 The Court notes Plaintiff waived his right to a revocation hearing. (ECF No. 7, p. 12). Such a hearing would have

been the proper vehicle to challenge the testimony of witnesses or other issues relating to the revocation of his parole.

corpus is the sole federal remedy for prisoners attacking the validity of their conviction or

confinement).

Accordingly, Plaintiff’s claims regarding his confinement resulting from the parole

revocation hearing and the validity of the criminal charges fail to state cognizable claims under

section 1983.

B. Defendants Davenport, Ross, Gamble and Davis

Additionally, Plaintiff’s parole officers, Defendants Davenport, Ross, Gamble and Davis,

are immune from suit. “[T]he extent of immunity accorded an official depends solely on the

officials’ function.” Figg v. Russell, 433 F.3d 593, 599 (8th Cir. 2006) (quoting Nelson v. Balazic,

802 F.2d 1077, 1078 (8th Cir. 1986)). The Eighth Circuit has found parole officers to be entitled

to either absolute or qualified immunity depending on the function at issue. See Nelson, 802 F.2d

at 1078-79 (finding parole officer entitled only to qualified immunity because the officer’s decision

not to take a parolee into custody was not a quasi-judicial function or prosecutorial decision; the

decision was akin to function of police officer); see also Anton v. Getty, 78 F.3d 393, 396 (8th Cir.

1996) (finding parole officers entitled to absolute immunity where they made recommendations to

parole board that parole be delayed, similar to quasi-judicial function performed by parole officers

preparing presentence reports).

In the instant case, Plaintiff has failed to describe what specific actions were taken by

Defendants Davenport, Ross, Gamble, or Davis in the parole revocation process. Even so, a review

of the Amended Complaint and the attachments, construed liberally, demonstrate these

Defendants, as parole officers, are entitled to either absolute immunity or qualified immunity.

C. Official Capacity Claims

Plaintiff also sues Defendants in their official capacities. Under section 1983, a defendant

may be sued in either his individual capacity, or in his official capacity, or claims may be stated

against a defendant in both his individual and his official capacities. Gorman v. Bartch, 152 F.3d

907, 914 (8th Cir. 1998). Official capacity claims are “functionally equivalent to a suit against the

employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.

2010). In other words, Plaintiff’s official capacity claims against Defendants are treated as claims

against Howard County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] cannot be held liable on a

respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish liability on the part of

Howard County under section 1983, “plaintiff must show that a constitutional violation was

committed pursuant to an official custom, policy, or practice of the governmental entity.” Moyle

v.Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation omitted).

Plaintiff has not alleged that any policy, practice, or custom of Howard County contributed

to the alleged violation of his constitutional rights. Accordingly, Plaintiff’s official capacity claims

against Defendants fail as a matter of law. See id.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s claims against all Defendants in both their individual

and official capacities are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §

1915A(b).

The dismissal of this case constitutes a strike pursuant to 28 U.S.C. § 1915(g). The

Clerk of Court is DIRECTED to place a § 1915 strike flag on this case.

IT IS SO ORDERED, this 17th day of April 2020.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge