Frank Franklin v. Wendy Kelley

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Pasco M. Bowman and Steven M. Colloton (UNPUBLISHED) [4276934] [15-1485]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1485
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Frank Lee Franklin,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Wendy Kelley,
lllllllllllllllllllll Defendant - Appellee.
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: May 06, 2015
Filed: May 20, 2015
[Unpublished]
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Before WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges.
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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

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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.
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Date Filed: 05/20/2015 Entry ID: 4276934