Kendrick v. Gilbert et al
ORDER ADOPTING 10 Report and Recommendations in their entirety; therefore, pltf's 5 MOTION for Leave to Proceed in forma pauperis, and pltf's 9 MOTION for Order to re-designate this case as a habeas action are DENIED; pltf's complaint is DISMISSED WITHOUT PREJUDICE; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 2/7/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
No. 1:11CV00110 JLH-JTK
STEPHEN A. GILBERT, Sgt., McPherson Unit,
Arkansas Department of Correction, et al.
The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney.
After a review of those proposed findings and
recommendations, and the timely objections received thereto, as well as a de novo review of the
record, the Court adopts them in their entirety. Kendrick entitled her complaint “Petition under
Administrative Procedural Act – State Remedy 5 USCA § 551,” but that act relates only to federal
agencies, not to the Arkansas Department of Correction. Kendrick named eighteen officers and
employees of the Arkansas Department of Correction as defendants, alleging that these defendants
imposed discipline upon her in retaliation for using the grievance procedure. As relief, she
requested, in part, compensatory and punitive damages. Hence, the magistrate judge properly
characterized this action as one brought pursuant to 42 U.S.C. § 1983, even if Kendrick did not
specifically cite that statutory section. Kendrick later filed a motion to redesignate this action as a
habeas corpus proceeding under 28 U.S.C. § 2241, but the magistrate judge properly recommended
that the motion be denied because plaintiff in this action named eighteen individuals as defendants
and sought compensatory and punitive damages from them, which is not appropriate relief in a
habeas corpus proceeding.
IT IS, THEREFORE, ORDERED that:
Plaintiff Kendrick’s Motion to Proceed In Forma Pauperis (Doc. No. 5) is DENIED.
Plaintiff’s Motion for Order to re-designate this case as a habeas action (Doc. No. 9)
Should Plaintiff wish to continue this case, she must submit the statutory filing fee
of $350.00 to the Clerk, noting the above case style and number within ten (10) days of the date of
this Order, together with a motion to reopen the case. Upon receipt of the motion and full payment,
the case will be reopened.
Plaintiff’s Complaint is DISMISSED without prejudice.
An appropriate Judgment shall accompany this Order.
IT IS SO ORDERED this 7th day of February, 2012.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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