Jenkins v. Access Securepak Company et al

Filing 72

ORDER (1) Adopting Recommended Disposition of 57 Report and Recommendation; (2) Vacating 5 Order Granting Plaintiff In Forma Pauperis Status; and (3) Directing Plaintiff to Pay Filing Fee. Signed by District Judge Matthew F. Leitman. (HRya)

Case 4:19-cv-10738-MFL-PTM ECF No. 72, PageID.799 Filed 01/17/23 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VAN JENKINS,
Plaintiff,

Civil No. 19-cv-10738
Hon. Matthew F. Leitman

v.
ACCESS SECUREPAK, CO., et al.,
Defendants.
__________________________________________________________________/
ORDER (1) ADOPTING RECOMMENDED DISPOSITION OF REPORT
AND RECOMMENDATION (ECF No. 57); (2) VACATING ORDER
GRANTING PLAINTIFF IN FORMA PAUPERIS STATUS (ECF No. 5),
AND (3) DIRECTING PLAINTIFF TO PAY FILING FEE
Plaintiff Van Jenkins is a former state inmate who at all relevant times was in
the custody of the Michigan Department of Corrections. In this action, Jenkins
appears to allege that the Defendants retaliated against him and/or interfered with
his prison mail in response to his filing certain complaints against them. (See Sec.
Am. Compl., ECF No. 29.) Shortly after Jenkins filed this action, the Court issued
an order allowing him to proceed in forma pauperis. (See Order, ECF No. 5.) That
order allowed Jenkins to proceed in this action without first paying, in full, the
required filing fee. (See id.)

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The in forma pauperis order was entered in error.

Under the Prison

Litigation Reform Act, “a prisoner may not proceed in forma pauperis where a
federal court [has] dismissed the incarcerated plaintiff’s action (because it was
frivolous, malicious, or failed to state a claim for which relief may be granted) three
or more times.” Jenkins v. Mutschler, 2021 WL 3885898, at *1 (E.D. Mich. Aug.
31, 2021) (citing 28 U.S.C. § 1915(g)).

“A prisoner may avoid three-strikes

dismissal by alleging facts showing he ‘is under imminent danger of serious physical
injury.’” Id. (quoting 28 U.S.C. § 1915(g)). Here, Jenkins was in custody at the
time he filed this action, and at that time, he had filed at least five previous “civil
rights complaints that ha[d] been dismissed by federal courts for being frivolous,
malicious, or failing to state a claim upon which relief could be granted.” Id. (citing
cases filed by Jenkins).

Finally, Jenkins had not alleged that he was under

“imminent danger of serious physical injury.” Id. Thus, Jenkins was not entitled to
proceed in forma pauperis. See id. (denying Jenkins in forma pauperis status and
dismissing his Complaint).
The assigned Magistrate Judge recently recognized that Jenkins was not
eligible for in forma pauperis status. Thus, on October 11, 2022, the Magistrate
Judge issued a report and recommendation in which she recommended that the Court
(1) revoke Jenkins’ in forma pauperis status and (2) instruct Jenkins “to pay the

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entire civil case filing fee within 30 days or suffer the dismissal of his case” (the
“R&R”). (R&R, ECF No. 57, PageID.690.)
At the conclusion of the R&R, the Magistrate Judge informed Jenkins that if
he wanted to seek review of her recommendation, he needed to file specific
objections with the Court within fourteen days. (See id., PageID.690-691.) She
further warned Jenkins that the “[f]ailure to file specific objections constitutes a
waiver of any further right of appeal.” (Id.)
Jenkins has not filed any objections to the R&R. The failure to object to an
R&R releases the Court from its duty to independently review the matter. See
Thomas v. Arn, 474 U.S. 140, 149 (1985). Likewise, the failure to file objections
to an R&R waives any further right to appeal. See Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers
Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Because Jenkins has not filed
objections to the R&R, he is not entitled to any relief. In any event, the Court has
independently reviewed the matter, and it has confirmed that the Magistrate Judge’s
recommendation is correct, and Jenkins is not entitled to proceed in forma pauperis.
Accordingly, for the two independent reasons discussed above, IT IS
HEREBY ORDERED as follows:
 The recommended disposition of the R&R (ECF No. 57) is
ADOPTED;

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 The Court’s prior order granting Jenkins in forma pauperis status (ECF
No. 5) is VACATED and that status is REVOKED; and
 Jenkins shall pay the filing fee for this case, in full, by no later than
February 20, 2023. If Jenkins does not do so, the Court will dismiss
this action.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 17, 2023
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 17, 2023, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

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