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)
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?