Stansberry v. City of Cincinnati

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court OVERRULES Plaintiff's Objection 19 and Adopts the Report and Recommendations 18 in its entirety. The Court DISMISSES this case with prejudice and CERTIFIES that any appeal would be frivolous. Signed by Judge Jeffery P. Hopkins on 5/9/2024. (kmc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRETT STANSBERRY,
Plaintiff,
vs.
(1) CURRITOS,
(2) VILLAGE OF ST. BERNARD,
(3) CITY OF CINCINNATI,
(4) FAMILY DOLLAR,
(5) XAVIER UNIVERISTY, et al.,
Defendants.

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Judge Jeffery P. Hopkins

(1) 1:23-cv-00038-JPH-SKB
(2) 1:23-cv-00100-JPH-KLL
(3) 1:23-cv-00266-JPH-KLL
(4) 1:23-cv-00267-JPH-KLL
(5) 1:23-cv-00268-JPH-KLL

ORDER ADOPTING REPORT AND RECOMMENDATIONS
Before the Court are the Report and Recommendations (“R&Rs”) issued by
Magistrate Judges Karen L. Litkovitz and Stephanie K. Bowman in five cases brought by
Plaintiff Brett Stansberry, all without the assistance of counsel. The Magistrate Judges have
recommended that this Court dismiss all five of these cases for want of prosecution pursuant
to Fed. R. Civ. P. 41(b). This recommendation derives from Plaintiff’s failure to comply with
this Court’s orders directing him to either (1) file new IFP motions for each case or (2) pay
the required filing fee of $402.00 per case. Plaintiff has filed objections to each of the R&Rs.
For the reasons stated below, the Court OVERRULES Plaintiff’s objections and
ADOPTS all five of the R&Rs in their entirety. The Court thus DISMISSES all of these cases
with prejudice and CERTIFIES that any appeals would be frivolous.

The following chart is a listing of the relevant documents in each case, including this
Court’s orders, Plaintiff’s responses, the pending R&Rs, and Plaintiff’s objections:
Case/Defendant
1:23-cv-00038-JPH-SKB
Curritos
1:23-cv-00100-JPH-KLL
Village of St. Bernard
1:23-cv-00266-JPH-KLL
City of Cincinnati
1:23-cv-00267-JPH-KLL
Family Dollar
1:23-cv-00268-JPH-KLL
Xavier University et al
I.

Order
Doc. 21

Response
Doc. 22

R&R
Doc. 25

Objection
Doc. 27

Doc. 17

Doc. 18

Doc. 20

Doc. 22

Doc. 12

Doc. 13

Doc. 18

Doc. 19

Doc. 11

Doc. 12

Doc. 16

Doc. 17

Doc. 10

Doc. 11

Doc. 15

Doc. 16

LAW AND ANALYSIS
A district judge must review de novo any objections to a magistrate judge’s report and

recommendation. Fed. R. Civ. P. 72(b)(3). Review applies only to “any portion to which a
proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL 5487045, at *1
(S.D. Ohio Sept. 30, 2013). If presented with a proper objection, “[t]he district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). General or
unspecific objections are treated the same as a failure to object. Slater v. Potter, 28 F. App’x
512, 513 (6th Cir. 2002) (“The filing of vague, general, or conclusory objections does not meet
the requirement of specific objections and is tantamount to a complete failure to object.”); see
Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Having carefully
reviewed the comprehensive findings and conclusions of the Magistrate Judges and
considered de novo all filings in these cases, while paying particular attention to the issues
which Plaintiff lodged objections to, the Court determines that the R&Rs should be adopted.

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The majority of Plaintiff’s contentions are not viewed as formal objections to the R&Rs
because they relate solely to Plaintiff’s unsubstantiated conspiracy allegations and his various
interactions with courthouse personnel during the pendency of these and his other cases.
Those contentions are not relevant to the R&Rs now under consideration, and thus will not
be addressed by the Court here. The only formal objections that this Court can reasonably
discern from Plaintiff’s filings are his contentions that the Magistrate Judges should have
construed his responses as renewed motions to proceed in forma pauperis.
A court may permit a person to proceed without the payment of the filing fee where
that person submits an “affidavit that includes a statement of all assets such [person]
possesses,” which shows the person’s inability to pay. 28 U.S.C. § 1915(a)(1). The Court
agrees with the Magistrate Judges’ conclusions that Plaintiff has failed to file renewed IFP
motions in these cases. Moreover, even if this Court were to view Plaintiff’s responses as IFP
motions, Plaintiff—as he has done previously—again failed to provide sufficient information
for the Court to meaningfully assess whether he has an inability to pay the filing fee in each
case. For example, while he alleges household expenses and “hundreds to thousands of
dollars” in monthly expenses related to “court costs, false arrests, civil court costs, grievances
and DOJ,” Plaintiff reports a weekly income of approximately $322.00, and bank balances of
$2,442.00 and $2,542.00. Without renewed IFP motions that clearly set forth his income,
assets, expenses, and liabilities, this Court, like before, cannot reasonably discern Plaintiff’s
ability to pay—especially given that he has tendered filing fees in two other cases in this Court.
See 1:22-cv-00667-JPH-KLL, 1:23-cv-00006-JPH-SKB. Plaintiff’s failure to comply with this
Court’s orders warrants its exercise of the Court’s inherent power to dismiss these cases

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pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626,
630–31 (1962).
II.

CONCLUSION
Accordingly, it is hereby ORDERED that Plaintiff’s objections are OVERRULED,

that the Report and Recommendations of the Magistrate Judges are ADOPTED in their
entirety, and that all five cases listed in the caption should be and hereby are DISMISSED
for lack of prosecution. Plaintiff’s remaining motions are therefore DENIED AS MOOT. For
the reasons stated in the Report and Recommendations and pursuant to 28 U.S.C. §
1915(a)(3), the Court certifies that an appeal of this Order would lack an arguable basis in law
or in fact and thus would not be taken in good faith. The Court accordingly DENIES Plaintiff
leave to appeal in forma pauperis. In accordance with Fed. R. App. P. 24(a)(5), Plaintiff remains
free to file a motion for leave to proceed on appeal in forma pauperis in the Sixth Circuit Court
of Appeals. Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).
IT IS SO ORDERED.
Dated: May 9, 2024
Hon. Jeffery P. Hopkins
United States District Judge

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