CA10: Parolee’s § 1983 claim he was wrongfully arrested on parole doesn’t state a claim because he’s always “in custody”

Plaintiff’s claim that he was unreasonably arrested for a parole violation before actually getting on parole is rejected because a parolee is still in custody no matter what. “Similarly, there is no authority to support Mr. Neilsen’s argument that an incarcerated prisoner is arrested for Fourth Amendment purposes when a state actor causes him to remain in custody, regardless of the propriety of the underlying decision that results in continued incarceration. Last, because there was no arrest, Mr. Neilsen’s argument that the arrest was made ‘without probable cause’ … is irrelevant. Because we conclude there was no Fourth Amendment violation, we need not decide whether the law was clearly established.” Neilsen v. McElderry, 2020 U.S. App. LEXIS 24643 (10th Cir. Aug. 5, 2020).

Defendant’s contention that defense counsel was in possession of information that would have contradicted the showing of probable cause was too conjectural to satisfy Franks. What was it? Not ineffective assistance of counsel. State v. Ortiz, 2020 Neb. App. LEXIS 220 (July 23, 2020).*

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