Whiteside v. Collins et al

Filing 145

OPINION AND ORDER re 127 OVERRULES Report and Recommendation, SUSTAINS Plaintiffs objections 135 and DENIES 108 Motion to revoke IFP status and orders the return of the filing fee. Signed by Judge James L Graham on 12/30/11. (ds)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION NORMAN V. WHITESIDE, Plaintiff, vs. Civil Action 2:08-CV-875 Judge Graham Magistrate Judge King TERRY COLLINS, et al., Defendants. OPINION AND ORDER Plaintiff, a state inmate proceeding without the assistance of counsel, brings this action under 42 U.S.C. § 1983, alleging that Rules (C)(28), (50) and (51) under O.A.C. § 5120-9-06 are vague and lack fair notice. In a Report and Recommendation issued on August 23, 2011, the United States Magistrate Judge recommended that defendants’ motion to revoke plaintiff’s in forma pauperis status be granted and that plaintiff be required to pay the full $350.00 filing fee. Report and Recommendation, Doc. No. 127. This matter is now before the Court on plaintiff’s objections, Doc. No. 135, to that Report and Recommendation which the Court will consider de novo. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). In finding that the defendants’ motion to revoke in forma pauperis status was meritorious, the Magistrate Judge concluded that plaintiff had brought, on three or more occasions while incarcerated, an action that was dismissed on the ground that it fails to state a claim upon which relief may be granted. Report and Recommendation, pp. 3-4 (citing Whiteside v. ODRC, Case No. 2:03-CV-439 (S.D. Ohio March 31, 2004); Whiteside v. Ghee, Case No. 2:96-CV-916 (S.D. Ohio Oct. 30, 1996); Whiteside v. Wilkinson, Case No. 2:00-CV-596 (S.D. Ohio May 18, 2000)). Plaintiff objects to the Court’s decision to characterize the last case, Whiteside v. Wilkinson, No. 2:00-CV-596, as a strike because he was not a party to that case. p. 1. Doc. No. 135, In reviewing that case, the undersigned agrees that the Wilkinson litigation should not count as a strike against plaintiff. See Whiteside v. Wilkinson, No. 00-3902, 3 Fed. Appx. 372, at *372 (6th Cir. Feb. 1, 2001) (stating that the district court did not recognize, inter alios, Norman Whiteside as a party to the Wilkinson litigation). In light of this conclusion, the Court finds that plaintiff does not have three “strikes” against him and defendants’ motion to revoke plaintiff’s in forma pauperis status is without merit. Accordingly, plaintiff’s objections, Doc. No. 135, are welltaken and the Report and Recommendation, Doc. No. 127, is OVERRULED. Defendants’ motion to revoke plaintiff’s in forma pauperis status, Doc. No. 108, is DENIED. The Court notes that a non-party, Karen G. Thimmes, paid the filing fee on behalf of plaintiff. Doc. No. 132. The Clerk is DIRECTED to refund to Ms. Thimmes, whose address appears on Doc. No. 132, the full $350.00 filing fee. Date: December 30, 2011 s/James L. Graham James L. Graham United States District Judge 2 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?