Mitchell v. Board of Corrections et al

Filing 27

ORDER approving and adopting 26 Recommendation's conclusion that the Motion to Dismiss be denied in favor of requiring Respondent to file a full Response; denying 11 Motion to Dismiss; and directing the Respondent to file its Response to 1 Petition in its entirety within 30 days. Signed by Judge Lee P. Rudofsky on 9/25/2024. (ldb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ROBERT S. MITCHELL
ADC #119186
v.

PETITIONER
Case No: 4:23-cv-00742-LPR-JTK

DEXTER PAYNE,
Director, Arkansas Division of Correction

RESPONDENT
ORDER

The Court has reviewed the Recommendation submitted by United States Magistrate Judge
Jerome T. Kearney (Doc. 26). No objections have been filed, and the time for doing so has expired.
After a careful review of the Recommendation, the Court hereby approves and adopts the
Recommendation’s conclusion that the Motion to Dismiss be denied in favor of requiring
Respondent to file a full Response. The Court is very unsure that the Recommendation’s analysis
of Rule 5 is right, especially in a case where the Magistrate Judge expressly directed Respondent
to file “an answer, motion, or other response.” Doc. 9. But the Court need not wade into that
particular thicket because Respondent did not object to the Recommendation. As the Court
understands it, in substance the Recommendation simply wants more information to evaluate
Petitioner’s claim—the type of information that a Response would provide but a motion to dismiss
would not.
Accordingly, Respondent’s Motion to Dismiss (Doc. 11) is DENIED. Respondent must
file its Response to the Petition in its entirety within 30 days, addressing all claims and arguments
made in Mr. Mitchell’s Petition (Doc. 1) and in Mr. Mitchell’s Response to the Motion to Dismiss
(Doc. 16).

IT IS SO ORDERED this 25th day of September 2024.

LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE

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