IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION

DESMOND WEAVER ADC #145118 PLAINTIFF

v. No. 2:22-cv-93-DPM

ARKANSAS DIVISION OF CORRECTION; BOARD OF DIRECTORS; DEXTER PAYNE, Director; and WENDY KELLEY DEFENDANTS

ORDER On de novo review, the Court adopts the Magistrate Judge’s recommendation as supplemented, Doc. 7, and overrules Weaver’s objections, Doc. 8. FED. R. Civ. P. 72(b)(3). The first and deep issue is whether Weaver may bring his claim under § 1983. Weaver says that he was wrongly classified as a habitual offender; and that classification makes him ineligible for parole. ARK. CODE ANN. § 16-93-609. Although he argues that he is not seeking release, a judgment in his favor could lead to a shorter stay in prison. Wilkinson v. Dotson,

(2005). This type of claim may not be brought under § 1983 because it is, in essence, a habeas petition. Preiser v. Rodriguez, 411 US. 475, 500 (1973). Second, as the Magistrate Judge explained, even if Weaver could proceed under § 1983, his due process claim fails because he does not have a protected liberty interest

in the possibility of parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex et al.,

(1979). Weaver's amended complaint will be dismissed without prejudice for failure to state a claim. The Court recommends that this dismissal count as a “strike” for purposes of

(g). Anin forma pauperis appeal from this Order and accompanying Judgment would not be taken in good faith.

(a)(3). So Ordered.

Pr. D.P. Marshall jr. United States District Judge 30 Sptmke 2022

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