Kellon v. Andrews et al
ORDER adopting 3 Proposed Findings and Recommendations in their entirety; dismissing without prejudice Mr. Kellon's 2 complaint for failure to state a claim upon which relief may be granted; finding that dismissal of this action constitutes a "strike"; and certifying that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be taken in good faith. An appropriate Judgment shall accompany this Order. Signed by Judge Kristine G. Baker on 12/29/2015. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
MARLON DALE KELLON, JR.,
Case No. 5:15-cv-00319-KGB-JTK
JEREMY ANDREWS, et al.
The Court has received Proposed Findings and Recommendations from United States
Magistrate Judge Jerome T. Kearney (Dkt. No. 3). Plaintiff Marlon Dale Kellon, Jr., filed timely
objections (Dkt. No. 5). After a review of the Proposed Findings and Recommendations, and the
timely objections received thereto, as well as a de novo review of the record, the Court adopts the
Proposed Findings and Recommendations in their entirety.
The Court writes separately to address Mr. Kellon’s objections (Dkt. No. 5). In his
objections, Mr. Kellon contends that he was participating in a vocational program but that he was
removed from the program after receiving a disciplinary charge. Although Mr. Kellon alleges that
he was found “not guilty” of the charge after appearing at his disciplinary hearing, he contends he
was never reinstated to the vocational program. In his objections, Mr. Kellon contends that he must
complete the vocational program to be released from prison. Mr. Kellon has not provided a copy
of his judgment and conviction or terms of his sentence to permit this Court to determine what
conditions may be part of his sentence. In general, prisoners have no constitutional right to
educational or vocational opportunities during incarceration. Wishon v. Gammon, 978 F.2d 446, 450
(8th Cir. 1992). While Mr. Kellon makes a passing reference to his belief that “discrimination plays
a major role in this incident,” he has not alleged any facts to show that discrimination played a part
or that he has been treated differently from other prisoners who are charged with disciplinary
infractions while participating in the vocational education program.
Accordingly, the Court dismisses without prejudice Mr. Kellon’s complaint against the
defendants for failure to state a claim upon which relief may be granted. Dismissal of this action
constitutes a “strike” within the meaning of the Prison Litigation Reform Act, pursuant to 28 U.S.C.
§ 1915(g). The Court also certifies that an in forma pauperis appeal from an Order and Judgment
dismissing this action would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3).
An appropriate Judgment shall accompany this Order.
It is so ordered this 29th day of December, 2015.
Kristine G. Baker
United States District Judge
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