PONDER v. BROWNLEE, 227 Fed.Appx. 533 (8th Cir. 2007)

John P. PONDER, Appellant, v. Leroy BROWNLEE, Arkansas Post Prison Transfer Board; Larry Zeno, Arkansas Post Prison Transfer Board; William Walker, Arkansas Post Prison Transfer Board; John Felts, Arkansas Post Prison Transfer Board; Carolyn Robinson, Arkansas Post Prison Transfer Board; John Belken, Arkansas Post Prison Transfer Board; Erma Hendrix, Arkansas Post Prison Transfer Board; Michael D. Huckabee, Governor, State of Arkansas, Appellees.

Page 534

No. 06-2648.United States Court of Appeals, Eighth Circuit.Submitted: June 28, 2007.
Filed: July 5, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Eastern District of Arkansas.

John P. Ponder, Grady, AR, pro se.

Before BYE, COLLOTON, and SHEPHERD, Circuit Judges.

[UNPUBLISHED]
PER CURIAM.

John Ponder appeals the district court’s 28 U.S.C. § 1915A
pre-service dismissal without prejudice of his 42 U.S.C. § 1983 action claiming that a change in clemency guidelines constituted an ex post facto violation. We grant Ponder’s motion to appeal in forma pauperis, and, upon de novo review, we reverse. See Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (standard of review). While the district court found that Ponder’s claim should be brought in a habeas action, we find that his claim was cognizable in a section 1983 action, as success on the claim would not necessarily spell a speedier release, but would at most speed consideration of his clemency application. See Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). Accordingly, we remand to the district court for consideration of Ponder’s claim on the merits.