Frank Franklin v. Wendy Kelley


PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Pasco M. Bowman and Steven M. Colloton (UNPUBLISHED) [4276934] [15-1485]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1485 ___________________________ Frank Lee Franklin, lllllllllllllllllllll Plaintiff - Appellant, v. Wendy Kelley, lllllllllllllllllllll Defendant - Appellee. ____________ Appeal from United States District Court for the Eastern District of Arkansas - Helena ____________ Submitted: May 06, 2015 Filed: May 20, 2015 [Unpublished] ____________ Before WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges. ____________ PER CURIAM. Arkansas prisoner Frank Franklin filed a 28 U.S.C. § 2254 petition to challenge his 1991 conviction for rape, which the district court dismissed as time-barred. A month after the habeas action was closed, Franklin sent a pleading to the district court that bore no caption or case number. It was titled “Motion for Appeal (Grievance #: EAM 14-04113)”; Franklin alleged deliberate indifference and retaliation by a prison Appellate Case: 15-1485 Page: 1 Date Filed: 05/20/2015 Entry ID: 4276934 officer for failing to give Franklin his “correct food.” Despite having no relation to Franklin’s habeas claims, this pleading was filed as a notice of appeal in the recently closed habeas action. Because this pleading clearly contains civil rights allegations and makes no reference to Franklin’s habeas claims, it should not have been construed as a notice of appeal in the habeas case. Rather, it should have been filed as a new 42 U.S.C. § 1983 civil rights action, the proper avenue in which to challenge conditions of confinement. Cf. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). Accordingly, we remand the matter to the district court, and direct that Franklin’s “Motion for Appeal” be filed as a new civil rights action, effective the date the pleading initially was received in the district court. ______________________________ -2- Appellate Case: 15-1485 Page: 2 Date Filed: 05/20/2015 Entry ID: 4276934

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