Sudberry v. Warden, Lebanon Correctional Facility et al

Filing 8

DECISION AND ENTRY adopting Report and Recommendations re 6 Report and Recommendations. Signed by Judge Timothy S. Black on 12/23/2020. (rrs)

Case: 1:18-cv-00246-TSB-SKB Doc #: 8 Filed: 12/23/20 Page: 1 of 4 PAGEID #: 39

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES D. SUDBERRY, R.,
Plaintiff,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION, et.
al.,
Defendants.

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Case No. 1:18-cv-246
Judge Timothy S. Black
Magistrate Judge Stephanie K.
Bowman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 6) AND
TERMINATING THIS CASE IN THIS COURT
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on November 30,
2020, submitted a Report and Recommendation, recommending that this case be
dismissed for Plaintiff’s failure to pay the full filing fee as ordered by the Court. (Doc.
6). Plaintiff filed objections.1 (Doc. 7).

Plaintiff’s objections are not well-taken. (Doc. 7). Plaintiff argues that the Court should allow
him to proceed in forma pauperis, because he cannot pay the filing fee, and because “there is
much merit to [his] claim.” (Id. at 2–3). But, as the Court has already explained in its Order
dated October 16, 2020, Plaintiff has violated 28 U.S.C. § 1915(g)’s three strikes rule, and
Plaintiff has failed to show that he qualifies for 28 U.S.C. § 1915(g)’s “imminent danger”
exception. (Doc. 5 at 1–2); see generally Bloodworth v. Mohr, No. 1:16-cv-1049, 2016 WL
6829647 (S.D. Ohio Nov. 21, 2016). Plaintiff’s objections do not remedy these deficiencies.
(See Doc. 7 at 1–3). And, as such, Plaintiff is not entitled to proceed in forma pauperis.
Plaintiff’s objections are overruled.
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Case: 1:18-cv-00246-TSB-SKB Doc #: 8 Filed: 12/23/20 Page: 2 of 4 PAGEID #: 40

As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court finds that the
Report and Recommendation should be and is hereby adopted in its entirety.
Accordingly, for the reasons stated above:
1.

The Report and Recommendation (Doc. 6) is ADOPTED.

2.

Plaintiff’s objections (Doc. 7) are OVERRULED.

3.

This case is DISMISSED for Plaintiff’s failure to pay the full filing fee as
ordered by the Court.

4.

Plaintiff is ASSESSED the full filing fee of $400.00.

5.

The Clerk of Court is DIRECTED to mail a copy of this Order adopting
the Report and Recommendation, along with the attached instructions, to
the Cashier of the prison at which Plaintiff is confined, and the Cashier is
directed as follows:
The prison’s Cashier shall deduct, and forward to the Clerk of Court,
20% of the preceding month’s income credited to Plaintiff’s account
each time the amount in the account exceeds $10.00 until the full fee
has been paid.2

6.

The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would not be taken in good faith and therefore DENIES Plaintiff
leave to appeal in forma pauperis.

7.

The Clerk of Court shall enter judgment accordingly, whereupon this case
is TERMINATED from the docket of this Court.

The prison cashier’s office shall not send payments aggregating more than the amount of the
full fee.
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Case: 1:18-cv-00246-TSB-SKB Doc #: 8 Filed: 12/23/20 Page: 3 of 4 PAGEID #: 41

IT IS SO ORDERED.
Date:

12/23/2020

s/Timothy S. Black
Timothy S. Black
United States District Judge

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Case: 1:18-cv-00246-TSB-SKB Doc #: 8 Filed: 12/23/20 Page: 4 of 4 PAGEID #: 42

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
INSTRUCTIONS FOR PAYMENT OF PRISONER FILING FEE
The prisoner shown as the Plaintiff on the attached Order owes the Court a fee.
Pursuant to 28 U.S.C. § 1915 and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), the fee is to be paid as follows:
The prison cashier shall forward to the Clerk of Court located in Cincinnati, Ohio
monthly payments of twenty percent (20%) of the preceding month’s income
credited to the prisoner's account each time the amount in the account exceeds ten
dollars ($10.00) until the full fee of four hundred dollars ($400.00) has been paid
to the Clerk of the Court. Payments should be forwarded to the address below.
If the prisoner has filed more than one case, he is required to pay a fee in each
case. The prison cashier’s office shall make the monthly calculations and
payments for each case in which it receives an order granting in forma pauperis
status or otherwise ordering the collection of the full filing fee.
The prisoner’s name and case number must be noted on each remittance.
Checks are to be made payable to:

Clerk, U.S. District Court

Checks are to be sent to:

Prisoner Accounts Receivable
103 Potter Stewart United States Courthouse
100 East 5th Street
Cincinnati, Ohio 45202

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