Lamar v. Dycus

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

ANTHONY D. LAMAR, ADC # 120479 PLAINTIFF

v. Case No. 6:24-cv-6033

DEXTER PAYNE; JOE PROFIRI; DONNA

DYCUS; JARED BYERS; HERBERT

STRAUGHN; TASHA GRIFFIN; ROBERT

PARKER; THOMAS ROWLAND; and

EVERETT LITZEY DEFENDANTS

ORDER

Before the Court is a Report and Recommendation (“R&R”) issued by the Honorable

Christy D. Comstock, United States Magistrate Judge for the Western District of Arkansas. ECF

No. 56. Defendants filed a timely objection. ECF No. 59. The Court finds the matter ripe for

consideration.

I. BACKGROUND1

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In April 2001, an Arkansas jury convicted Plaintiff Anthony D. Lamar of sodomy rape and

sentenced him to 30 years in prison. In January 2023, Plaintiff was participating in the Reduction

of Sexual Violence Victimization Program (“RSVP”) offered by the Arkansas Department of

Corrections (“ADC”). Also in January 2023, the Arkansas Parole Board approved Plaintiff for

parole, with his release conditioned upon completion of the RSVP.

On February 2023, Inmate Horton, who was participating in RSVP at the same time as

Plaintiff, accused Plaintiff of raping him in his cell. ADC personnel subsequently referred the

accusation to the Arkansas State Police and eventually transferred Plaintiff from the Ouachita

River Unit (“ORU”), which is the only ADC facility at which the RSVP is available, to the Varner

1 The abbreviated factual background is taken from Plaintiffs’ Second Amended Complaint. ECF No.

Unit. Plaintiff alleges that Inmate Horton has a documented history of both serious mental illness

and making false rape accusations against other inmates. Plaintiff also alleges that the

investigation into the accusation against him ultimately cleared him of any wrongdoing. To date,

ADC personnel have not moved Plaintiff back to the ORU so that he could finish the RSVP.

Plaintiff asserts that Inmate Horton was permitted to return to the RSVP despite the false rape

accusation. Plaintiff further alleges that all inquiries to ADC personnel regarding a transfer back

to ORU and re-entry into the RSVP have either been ignored or denied. Plaintiff asserts that his

presence in the RSVP is mandatory under parole statues or regulations. Plaintiff states that without

removal from the RSVP, he would have been paroled in June 2023.

On March 18, 2024, Plaintiff filed his initial Complaint in the Eastern District of Arkansas,

bringing an action pursuant to 42 U.S.C. § 1983. ECF No. 2. The case was transferred to this

Court the next day. ECF No. 5. Plaintiff subsequently submitted an Amended Complaint (ECF

No. 10) and a Second Amended Complaint (ECF No. 28) (“SAC”), which is the operative

Complaint in this matter. Though Plaintiff attempts to enumerate three distinct and sequential

claims, Judge Comstock,2 Defendants, and the Court have deciphered three coherent claims out of

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the entirety of the allegations. ECF No. 28, p. 5-13. The first claim alleges that Defendants

violated his right to due process by removing him from the RSVP without being given notice as to

why and given a chance to appeal or contest the removal. The second claim alleges that Defendants

violated his right to due process by failing to adhere to ADC policies on conducting a Prison Rape

Elimination Act (“PREA”) investigation regarding Inmate Horton’s accusation. The third claim

alleges that Defendants violated his right to equal protection by not permitting him to return to the

2 The R&R opines that Plaintiff has also sufficiently raised a First Amendment retaliation claim between the SAC and

his response in opposition to Defendants’ Motion to Dismiss. ECF N. 56, p. 15-16. The Court does not interpret the

SAC as bringing this claim and will not consider it in the instant Order.

RSVP while allowing other inmates to participate.3 All claims are against Defendants in their

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individual capacity.

On October 24, 2024, Defendants filed a Motion to Dismiss, arguing that Plaintiff failed to

state a claim and that qualified immunity would bar Plaintiff’s claims even if he sufficiently alleged

them. ECF Nos. 30 & 31. Plaintiff responded in opposition. ECF No. 39. On May 12, 2025,

Judge Comstock issued the instant R&R, recommending that Defendants’ Motion to Dismiss be

denied. ECF No. 56. On June 3, 2025, Defendants filed a timely objection to Judge Comstock’s

recommendation regarding whether Plaintiff sufficiently pled his claims. The Court finds that this

objection is sufficiently specific to require a de novo review of this aspect of Judge Comstock’s

R&R.4 See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (noting that an objection which

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sufficiently directs a district court to alleged errors in an R&R requires a de novo review of those

alleged errors).

II. LEGAL STANDARD

A party may move to dismiss for failure to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint, so

the Court’s inquiry is limited to whether the challenged pleading sets forth sufficient allegations

to make out the elements of a right to relief. Peck v. Hoff, 660 F.2d 371, 374 (8th Cir. 1981). A

pleading must provide “a short and plain statement of the claim that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). This requirement gives “the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

3 The factual allegations underlying the first due process claim and the equal protection claim are accumulated from

Plaintiff’s enumerated Claim #1 and Claim #2. ECF No. 28, p. 5-10.

4 The Court notes that Defendants did not make qualified immunity arguments in their objection. Thus, the Court will

only conduct a de novo review of Defendant’s arguments regarding Plaintiff’s failure to state a claim.

factual allegations of a complaint are assumed true and all reasonable inferences are drawn in the

plaintiff’s favor, “even if it strikes a savvy judge that actual proof of those facts is improbable.”

Id. at 555-56. The Court, however, need not “blindly accept the legal conclusions drawn by the

pleader from the facts.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation

of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked

assertions’ devoid of ‘further factual enhancement.’” Id. (internal citations and alterations

omitted) (quoting Twombly, 550 U.S. at 555, 557). In other words, “the pleading standard Rule 8

announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In

considering a motion to dismiss under Rule 12(b)(6), “the complaint should be read as a whole,

not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden

v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

III. DISCUSSION

A. Due Process Claims

In his first due process claim, Plaintiff alleges that Defendants Dycus, Straughn, Griffin,

Byers, Parker, and Litzey, who are all ADC personnel, violated his right to due process by

improperly removing him from the RSVP and by failing to allow him to challenge his removal or

to re-enter the program. ECF No. 28, p. 5-10. Plaintiffs’ second due process claim alleges that

Defendants Dycus, Straughn, Griffin, Byers, Parker, Rowland, Profiri, and Payne failed to adhere

to the ADC’s PREA investigation policies when investigating Inmate Horton’s accusations against

him. Id. at p. 11-13. Defendants argue that the first claim fails because there is no protected liberty

interest in participating in RSVP. ECF No. 31, p. 4-5. Defendants emphasize that it is well

established that there is no protected interest in prison programs, reductions in sentences, or the

possibility of parole. As to the second claim, Defendants argue that there is no protected interest

in having correctional facilities follow their own policies and guidelines. Id. at p. 6. Judge

Comstock recommends that the first claim proceed because Plaintiff has alleged that Arkansas

parole statutes and policies required ADC personnel to place him back into the RSVP upon being

cleared of the rape allegations, which potentially created a protected interest under State law. ECF

No. 56, p. 12-14. Judge Comstock does not make any clear recommendation as to the second due

process claim. In objection, Defendants again argue that there is no recognized liberty interest in

either parole or prison programs and that Plaintiff failed to cite any binding policies requiring his

placement in the RSVP. ECF No. 59, p. 1-3.

The Fourteenth Amendment states in part that “nor shall any State deprive any person of

life, liberty, or property, without due process of law[.]” U.S. Const. amend XIV, § 1. A court

should examine procedural due process questions “in two steps: the first asks whether there exists

a liberty or property interest which has been interfered with by the State, . . . the second examines

whether the procedures attendant upon that deprivation were constitutionally sufficient[.]” Ky.

Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted). Protected

interests arise from either “the Due Process Clause itself [or] the laws of the States.” Id. (quotation

omitted). A State may create a protected interest for an inmate “by placing substantive limitations

on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249 (1983). Though there is no liberty

interest in the possibility of parole, a State’s statutes or regulations may eliminate discretion

amongst officials and “create an ‘expectation of parole’ protected by the Due Process Clause.” Bd.

of Pardons v. Allen, 482 U.S. 369, 373 (1987) (quotation omitted). A State may create a protected

interest through its statutes, administrative codes, and official policies intended to “guide the

exercise of discretion.” Green v. Black, 755 F.2d 687, 688 (8th Cir. 1985) (citations omitted).

The Court finds that Plaintiff has sufficiently stated his first due process claim regarding

participation in the RSVP and ultimate release on parole. Plaintiff alleges that the parole board

had already approved his release, which would occur upon completion of the RSVP. Plaintiff then

alleges that statues and regulations required that he be placed in the RSVP. Plaintiff further alleges

that officials removed him from the RSVP without formal notice or any meaningful opportunity

to challenge his removal and that they have refused to return him to the program despite the

accusations against him being disproven. Plaintiff asserts that he has been damaged by this

because he was guaranteed parole upon completion of RSVP in the middle of 2023 and yet he

remains confined because of ADC officials’ refusal to return him to the program. The Court is

satisfied that Plaintiff has alleged that he has a protected interest in participation in the RSVP and

the corresponding release on parole and that he was not provided with adequate procedures prior

to being deprived of that interest. See Thompson, 490 U.S. at 460.

However, Plaintiff’s second claim alleging a due process violation through failure to

properly conduct the PREA investigation fails. Prison regulations and policies, standing alone, do

not create a protected interest in having officials follow those regulations. See Phillips v. Norris,

320 F.2d 844, 847 (8th Cir. 2003). The conditions an inmate is exposed to, not the failure to adhere

to any procedural requirement prior to that exposure, is the proper focus of any liberty interest

analysis. See id. Therefore, Plaintiff had no protected interest in having Defendants adhere to

policies governing PREA investigations. Accordingly, this claim must be dismissed.

B. Equal Protection Claim

Plaintiff alleges that Defendants Dycus, Straughn, Griffin, Byers, Parker, and Litzey

violated his right to equal protection by refusing to place him back into the RSVP while permitting

other inmates to enter the program, which included inmates mandated to complete the RSVP by

the parole board and inmates who were not so mandated. ECF No. 28, p. 5-10. Defendants argue

that the claim fails because Plaintiff has not alleged that he was treated differently than similarly

situated inmates. ECF No. 31, p. 6-7. Judge Comstock recommends that this claim proceed

because Plaintiff alleged that other sex offender inmates in his position were placed into the RSVP

while officials have consistently refused to permit him to re-enter the program. ECF No. 56, p.

14-15. In objection, Defendants argue that Plaintiff has failed to allege that any other inmate who

was accused of raping another inmate while in the RSVP was permitted to stay in the program or

return to the program. ECF No. 59, p. 3-4.

The Fourteenth Amendment holds that a State shall not “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. “The Fourteenth

Amendment requires that the government ‘treat similarly situated people alike,’ a protection that

applies to prison inmates.” Murphy v. Mo. Dept. of Corr., 372 F.3d 979, 984 (8th Cir. 2004)

(quotation omitted). “To succeed on an equal protection claim, [a plaintiff] must show that he is

treated differently than a similarly situated class of inmates, that the different treatment burdens

one of his fundamental rights, and that the different treatment bears no rational relation to any

legitimate penal interest.” Id. “Dissimilar treatment of dissimilarly situated persons does not

violate equal protection.” Klinger v. Dept. of Corr., 31 F.3d 727, 731 (8th Cir. 1994). “Absent a

threshold showing that [a plaintiff] is similarly situated to those who allegedly received favorable

treatment, the plaintiff does not have a viable equal protection claim.” Id. Rights are fundamental

for equal-protection purposes if they are guaranteed by the U.S. Constitution; rights created by

State law are not considered fundamental. See Eggers v. Evnen, 48 F.4th 561, 565 (8th Cir. 2022)

(citations omitted).

The Court finds that Plaintiff has failed to state his equal protection claim. Liberally

reading Plaintiff’s SAC, he has sufficiently alleged that he was similarly situated to other sex

offender inmates whose presence in the RSVP was mandatory and that he was treated differently

through officials’ refusal to place him back into the program. However, Plaintiff has failed to

alleged that the differing treatment burdened one of his fundamental rights. As the Court noted

regarding Plaintiff’s first due process claim, the protected interest in the RSVP and release on

parole was allegedly created under State law. Such State created rights are not fundamental for

equal protection purposes. See Eggers, 48 F.4th at 565. Without alleging that the differing

treatment between him and other sex offender inmates burdened a fundamental right, Plaintiff has

failed to state a plausible equal protection claim. See Murphy, 372 F.3d at 984.

IV. CONCLUSION

For the reasons stated above, the Court hereby adopts Judge Comstock’s R&R (ECF No.

56) in part. Accordingly, Defendants’ Motion to Dismiss (ECF No. 30) is GRANTED IN PART

and DENIED IN PART. Plaintiff’s due process claim regarding his removal from the RSVP may

proceed. All other claims are DISMISSED WITHOUT PREJUDICE. Defendants Profiri,

Rowland, and Payne are terminated from this action.

IT IS SO ORDERED, this 30th day of September, 2025.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge