Kennedy v. Hobbs et al

Filing 7

ORDER denying 6 Motion for Reconsideration re 3 Order 4 Judgment. If Kennedy wishes to pursue this case, he must pay $400.00 (the statutory filing and administrative fees) and move to reopen the case by 7 February 2014. Signed by Judge D. P. Marshall Jr. on 1/23/14. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PLAINTIFF

JEREMY KENNEDY,
ADC #093061

v.

No: 5:13-cv-376-DPM

RAY HOBBS; LARRY MAY;
GREG HARMON; UNITED STATES OF AMERICA;
UNITED STATES FEDERAL COURT SYSTEM

DEFENDANTS

ORDER
Motion for reconsideration, NQ 6, denied. The Court entered judgment
in this § 1983 case after finding that Kennedy had failed to pay the filing and
administrative fees and was a "three-striker" under 28 U.S.C. § 1915(g).
Kennedynowdisputesthatatleasttwodismissals,Kennedyv. Byers,5:04-cv-8,
and Kennedy v. Minor, 5:04-cv-46, are not strikes due to a change in the law,
and moves for reconsideration.
Kennedy is correct that a dismissal for failure to exhaust is not a strike.
Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007). But in both Byers and Minor,

his cases were not dismissed for failure to exhaust, but for failure to state a
claim, and appropriately so. Those cases were Heck-barred because Kennedy

challenged "actions whose unlawfulness would render a conviction or
sentence invalid[.]" Heck v. Humphrey, 512 U.S. 477,486 (1994); Portley-El v.

Brill, 288 F.3d 1063, 1066 (8th Cir. 2002).
Since Edwards v. Balisok,520 U.S. 641 (1997), the law has not changed; in
order to challenge the loss of good time credits, Kennedy had to file a writ of
habeas corpus, not an action under§ 1983. Entzi v. Redmann, 485 F.3d 998,
1003 (8th Cir. 2007). The courts' dismissals in Byers and Minor pursuant to

Heck are strikes under § 1915(g). E.g., Rivera v. Allin, 144 F.3d 719, 730-31
(11th Cir. 1998); see also Armentrout v. Tyra, 1999 WL 86355 (8th Cir. 1999)(per

curiam)(unpublished opinion). If Kennedy wishes to pursue this case, he must
pay $400.00 (the statutory filing and administrative fees) and move to reopen
the case by 7 February 2014.
So Ordered.

(/

D.P. Marshall Jr.
United States District Judge

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