Kennedy v. Hobbs et al

Filing 89

ORDER adopting 87 recommendation with one change. The imminent-danger exception can be litigated later in a case if the screening Court makes a tentative decision, as it did here. If he wants to pursue this case, Kennedy must move to reopen and pay the $400.00 filing and administrative fee by 11/28/2014. 76 Motion to vacate granted. 74 Motion to dismiss denied as moot. An in pauperis appeal would be in good faith. Signed by Judge D. P. Marshall Jr. on 11/10/2014. (thd)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JEREMY KENNEDY
ADC #093061
v.

PLAINTIFF
No. 5:14-cv-95-DPM-HDY

RAY HOBBS, Director, ADC; MICHELLINE OLSON,
Dr., Medical Staff, Varner Unit Infirmary; OJIUGO IKO,
Dr., Medical Staff, Varner Unit Infirmary; CHARLOTTE
GARDNER, Dr., Medical Staff, Varner Unit Infirmary;
MICHELLE BISHOP, Dr., Medical Staff, Calico Rock,
N.C.U. Infirmary; and GREGORY MCKINNEY, Dr.,
Medical Staff, Ouachita River Unit Infirmary
DEFENDANTS

ORDER
After de novo review, the Court adopts Judge Young's recommendation
with one change. N2 87; FED. R. Crv. P. 72(b)(3). Kennedy's objections, N2 88,
are overruled. I think the imminent-danger exception can be litigated later in
a case if the screening Court makes a tentative decision, as it did here. This
practice errs on the side of caution, allowing the suit to proceed, while
allowing the statutory exception to be revisited on proof later in the case to
prevent abuse of the exception. Kennedy isn't entitled to IFP status because
he wasn't in imminent danger of serious physical injury when he filed his
complaint. If he wants to pursue this case, Kennedy must move to reopen,

and pay the $400.00 filing and administrative fee, by 28 November 2014.
Motion to vacate, N2 76, granted. Motion to dismiss, N2 74, denied as moot.
Because the correctness of revisiting a tentative imminent-danger decision
appears to be a novel issue, an in forma pauperis appeal would be in good faith.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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