Rivers v. Kelley, No. 5:2018cv00287 - Document 6 (E.D. Ark. 2018)
Court Description: ORDER approving and adopting 4 findings and recommendations as this Court's findings in all respects in their entirety. Judgment dismissing this petition will be entered accordingly. A certificate of appealability will not issue because Rivers has not made a substantial showing of the denial of a constitutional right. Signed by Judge Susan Webber Wright on 11/28/2018. (cmn)
Download PDF
<![CDATA[
Rivers v. Kelley Doc. 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION DEVONTAE MARQUEZ RIVERS ADC # 153025 V. PETITIONER CASE NO. 5:18-CV-00287-SWW-JTK WENDY KELLEY, Director Arkansas Department of Correction ORDER RESPONDENT The Court has received proposed findings and recommendations from United States Magistrate Judge Jerome T. Kearney. After careful review of the findings and recommendations and the timely objections thereto, as well as a de novo review of the record, the Court concludes that the findings and recommendations should be, and are hereby, approved and adopted as this Court’s findings in all respects in their entirety. In his objections, Rivers argues that the Magistrate Judge erred in finding this a successive petition for which he must obtain Eighth Circuit approval to file because the judgment dismissing his prior petition, Rivers v. Kelley, No. 5:14-cv-00266, stated that the dismissal of his petition was without prejudice. Rivers argues he thus has a right to file this petition as if the prior petition had never been filed.1 In support of this argument, Rivers cites Glaus v. Anderson, 408 F.3d 382, 385-86 (7th Cir. 2005), which noted that in the usual case, when a case is dismissed without prejudice, the plaintiff is free to re-file the It appears the judg e t i No. : c should ha e stated that the dis issal of Ri ers’ petitio as ith prejudice as the Proposed Fi di gs a d Reco e ded Dispositio that the Court adopted stated that ery thi g. Dockets.Justia.com case. There is an exception, however, “if there is no amendment [a plaintiff] could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations.” Id. at 386 (citation and internal quotation marks omitted). Rivers’ petition in No. 5:14-cv-00266 was dismissed as time-barred, and the Magistrate Judge in this case, as an alternative ground for dismissal, found that Rivers’ petition is time-barred. Accordingly, the rule in the usual case that a plaintiff may re-file a case that was dismissed without prejudice is not here applicable. Judgment dismissing this petition will be entered accordingly. A certificate of appealability will not issue because Rivers has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). IT IS SO ORDERED this 28th day of November, 2018. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
