Opinion
21-cv-1440 (WMW/HB)
10-15-2021
Dominic T. Henley, Plaintiff, v. Steve Kallis, Barb Von Blanokensee, and Ian Connors, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
Wilhelmina M. Wright United States District Judge
Before the Court is United States Magistrate Judge Hildy Bowbeer's August 20, 2021 Report and Recommendation (R&R), which recommends that this Court dismiss with prejudice Plaintiff Dominic T. Henley's complaint alleging violations of his civil rights under 42 U.S.C. § 1983. For the reasons addressed below, the Court adopts the R&R as modified such that the dismissal is without prejudice.
Henley is incarcerated at the Federal Medical Center in Rochester, Minnesota (FMC-Rochester). Henley alleges that he is eligible for earned-time credits (ETCs) under the First Step Act, see 18 U.S.C. § 3632(d)(4), but that prison officials maintain that he is ineligible. After reviewing Henley's complaint, the magistrate judge determined that Henley's allegations were improperly raised because those claims must be advanced in a petition for a writ of habeas corpus rather than in a civil rights complaint. The magistrate judge provided Henley the opportunity to re-style his complaint as a habeas petition. Henley failed to do so. In the August 20, 2021 R&R, the magistrate judge recommends dismissing the action under 28 U.S.C. § 1915A for failing to state a claim for which this 1 Court may grant relief, reasoning that the action should be brought as a habeas petition. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (explaining that “Congress has determined that habeas corpus is the appropriate remedy for . . . prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of [Section] 1983”).
No objections to the R&R have been filed. In the absence of timely objections, this Court reviews an R&R for clear error. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Having reviewed the R&R, the Court finds no clear error and adopts the R&R as modified.
The Court modifies the R&R to dismiss Henley's complaint without prejudice so as to prevent Henley from incurring a strike under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g) (precludes a prisoner from proceeding in forma pauperis when that prisoner has, on three or more prior occasions, brought an action that was dismissed because it failed to state a claim upon which relief may be granted).
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT IS HEREBY ORDERED:
1. The August 20, 2021 R&R, (Dkt. 9), is ADOPTED AS MODIFIED.
2. Plaintiff Dominic T. Henley's complaint, (Dkt. 1), is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY. 2