Saur v. Warden Chillicothe Correctional Institution

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Petitioner is directed to pay the full filing fee or submit an in forma pauperis application by a prisoner WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER. Petitioner is further DIRECTED to clarify the relief he seeks within THIRTY DAYS OF THE DATE OF THIS ORDER. The clerk is DIRECTED to provide Petitioner with standard blank forms for an incarcerated person to proceed without prepayment of fees. Signed by Judge Gregory L Frost on 3/28/13. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD SAUR,
Petitioner,
Civil Action 2:12-cv-895
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
ORDER
This matter is before the Court for consideration of Petitioner’s Objection to the October
4, 2012 Order of the Magistrate Judge. (ECF No. 3.) For the reasons that follow, Petitioner’s
Objections are OVERRULED. The Order of the Magistrate Judge is ADOPTED and
AFFIRMED. Petitioner is DIRECTED to either pay the full filing fee or submit an application
for a prisoner to proceed without prepayment of fees WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS ORDER. Petitioner is further DIRECTED to clarify the relief he seeks
WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. Failure to comply with
the terms of this Order could result in the dismissal of this case.
I.
On October 16, 2012, Petitioner, an inmate at the Chillicothe Correctional Institution,
initiated this action by filing a request to proceed without prepayment of fees. (ECF No. 1.)
Petitioner did not, however, submit the application required for a prisoner or provide a certified
copy of his prison account statement, as required under 28 U.S.C. § 1915(a)(2).

Petitioner also filed a “Petition for a Rule NISI Order Pursuant to 28 U.S.C. 1651(a)(b).”
Id. at Ex. 2. According to the Petition, he seeks a Rule Nisi order because there is “no cause of
detention in the public record.” (Civil Cover Sheet, ECF No. 1-1.) Petitioner further asserts that
“there is no lawful state remedy,” because “no substantive law was invoked” in his underlying
criminal proceedings. (Petition 1, ECF No. 1-2.)
On October 4, 2012, the Magistrate Judge issued an Order directing Petitioner to supply
the appropriate application for a prisoner to proceed without prepayment of fees, along with a
certified copy of his prison account statement. (Order 2, ECF No. 2.) The Magistrate Judge also
directed Petitioner to clarify the relief he seeks, as the Court cannot discern the nature of his
purported cause of action from his Petition. Id. at 2-3.
On October 16, 2012, Petitioner filed an Objection to the Order of the Magistrate Judge.
(ECF No. 3.) First, Petitioner objects to applying as a prisoner to proceed without prepayment of
fees on the grounds that he “is not a prisoner by state and federal law.” (Objection 1, ECF No.
3.) Accordingly, Petitioner maintains that he “will not file an in forma pauperis petition for a
prisoner [a]nd the federal Court may not order him to do so[,] [a]s it would lead him [] to perjure
himself, breaking the law.” Id. at 2. He asserts that he is entitled to move to proceed in forma
pauperis as a non-prisoner. Id. at 1.
Second, Petitioner indicates that he “is not asking for habeas relief.” Id. at 3. Rather
than provide clarity as to the nature of his purported cause of action, however, Petitioner’s
objection adds to the confusion. He maintains that he seeks “[o]nly the truth of the state
involvement on the court record.” Id. Petitioner further posits that “[a] rule nisi order for the
true and lawful cause of petitioner’s detention will resolve all issues raised by the petition, and
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the court.” Id. at 3.
II.
The subject Order of the Magistrate Judge involves a non-dispositive matter. Thus, the
Court applies the “clearly erroneous” or “contrary to law” standard of review set forth in Federal
Rule of Civil Procedure 72(a). A Magistrate Judge’s factual finding is “clearly erroneous” only
when, after reviewing the evidence, the court “is left with the definite and firm conviction that a
mistake as been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). A court will overturn a Magistrate Judge’s legal conclusions only where those
conclusions “contradict or ignore applicable precepts of law, as found in the Constitution,
statutes, or case precedent.” Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992) (internal
quotation marks and citation omitted).
The Court has reviewed the Magistrate Judge’s Order and concludes that it is neither
clearly erroneous nor contrary to law. First, Petitioner must either pay the full filing fee or
submit an application for a prisoner to proceed without prepayment of fees and a certified copy
of his prison account statement. Regardless of the term Petitioner uses to describe himself, the in
forma pauperis statute under which he moves classifies him as a “prisoner.” See 28 U.S.C.
1915(g) (“As used in this section, the term ‘prisoner’ means any person incarcerated or detained
in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law . . . .”). Notwithstanding Petitioner’s apparent objection to the
methods by which he was adjudicated guilty of a crime, Petitioner is a “person incarcerated” in a
“facility” who is “convicted of” a “violation[] of criminal law.” See Criminal Case Detail
attached to Petition as Exhibit A, ECF No. 1-3 (reflecting that Petitioner pleaded guilty to the
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indictment of felonious assault.).
Accordingly, Petitioner’s first objection to the Order of the Magistrate Judge is
OVERRULED. Petitioner is DIRECTED to either submit an application for a prisoner to
proceed without prepayment of fees and a certified copy of his prisoner account statement, or
pay the full filing fee of $5.00 for a habeas corpus petition or $350.00 for a civil complaint,
WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. Petitioner is cautioned
that failure to comply with the terms of this Order may result in the dismissal of this case. If
Petitioner does not comply with this Order, the Court is required to assume that he is not a
pauper, and it will: (1) assess the full amount of the filing fee; (2) dismiss the case for want of
prosecution; and (3) not reinstate the case to the Court’s active docket even if the filing fee is
then paid in full. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997).
Second, Petitioner must provide clarity as to the relief he seeks. As currently drafted, the
Court cannot discern from the Petition the nature of the purported cause of action or what relief
Petitioner seeks. Accordingly, Petitioner’s second objection to the Order of the Magistrate Judge
is OVERRULED. Petitioner is DIRECTED to clarify the relief he seeks WITHIN THIRTY
(30) DAYS OF THE DATE OF THIS ORDER.
III.
Accordingly, Petitioner’s Objections to the Order of the Magistrate Judge are
OVERRULED. The Order of the Magistrate Judge is ADOPTED and AFFIRMED. Petitioner
is DIRECTED to either pay the full filing fee or submit an in forma pauperis application by a
prisoner WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. Petitioner is
further DIRECTED to clarify the relief he seeks WITHIN THIRTY (30) DAYS OF THE
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DATE OF THIS ORDER. For ease of reference, the Clerk is DIRECTED to provide
Petitioner with standard blank forms for an incarcerated person to proceed without prepayment
of fees.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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