Hendricks et al v. Ohio Department of Rehabilitation & Corrections et al

Filing 25

ORDER AND REPORT AND RECOMMENDATION re 1 Complaint, filed by Gregory Backus, James Carpenter, Robert Austin, Gerald Lupinski, George Coverdale, Mark Randall, Benjamin Hendricks, Earl Steidl, Geoffrey Dupuis, Donald Williams, John Nam eth. The Motions of Plaintiffs Dupuis, Randall, Williams, Coverdale, Lupinski, and Steidl are GRANTED. Plaintiff Hendricks initial Motion for Leave to Proceed in forma pauperis is DENIED as MOOT. Plaintiff Hendricks revised Motion for Leave to Procee d in forma pauperis is GRANTED. It is RECOMMENDED, however, that Plaintiff Nameths Motion for Leave to Proceed in forma pauperis be DENIED. It is RECOMMENDED that Plaintiffs Carpenter and Austin be ASSESSED $40.00, the full amount of the filing fee for which they are responsible for, and that their claims be DISMISSED for want of prosecution. Objections to R&R due by 1/26/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/7/2015. (mas1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BENJAMIN HENDRICKS, et al.,
Plaintiffs,
Civil Action 2:14-cv-1841
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

OHIO DEPARTMENT OF
REHABILITATION & CORRECTIONS, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
On October 8, 2014, Plaintiffs filed their Complaint in the instant action, but failed to pay
the $400.00 1 filing fee or to submit applications to proceed in forma pauperis. (ECF No. 1.) On
October 16, 2014, the Court Ordered Plaintiffs to submit, within thirty (30) days, the required
filing fee, divided equally amongst each Plaintiff, or alternatively, to file applications for leave to
proceed in forma pauperis. (ECF No. 2.) The Court informed Plaintiffs that, if Plaintiffs failed
to comply with the Order, the Court is required to assume that Plaintiffs are not paupers, and it
will: (1) assess Plaintiffs 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. Id. (citing In re Prison Litig. Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997)).
On December 3, 2014, Plaintiffs Dupuis, Randall, Williams, Coverdale, Lupinski,
Nameth, Steidl, and Hendricks filed Motions for Leave to Proceed in forma pauperis under 28
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The Court notes that the filing fee is $350.00 for Plaintiffs proceeding in forma pauperis. The
filing fee for a Civil Complaint, when in forma pauperis status is not granted, is $400.00.

U.S.C. § 1915(a)(1) and (2). (ECF Nos. 6-13.) At that time, Plaintiffs Austin and Carpenter
filed Declarations, asserting that they turned in the required certificate and request for trust fund
statements to the Pickaway Correctional Institution (“PCI”) Cashier, but had received no
response. (ECF Nos. 15, 17.) Accordingly, the Court directed the Cashier to complete the
certificates and attach the required trust fund account statements and ordered Plaintiffs Carpenter
and Austin to file their applications to proceed in forma pauperis, or pay their portion of the
filing fee, by December 24, 2014. (ECF No. 19.) To date, Plaintiffs Carpenter and Austin have
not filed an application to proceed in forma pauperis or paid the filing fee.
In addition, upon receiving notice that he was released from PCI, the Court ordered
Plaintiff Hendricks to file a revised non-prisoner application for leave to proceed in forma
pauperis. (ECF Nos. 20, 23.) On December 30, 2014, Plaintiff Hendricks filed his revised
Motion for Leave to Proceed in forma pauperis. (ECF No. 24.)
I.
Each Plaintiff in this action is proportionately liable for any fees and costs that may be
assessed in this action. In re Prison Litig. Reform Act, 105 F.3d at 1138. “Thus, any fees and
costs that the district court or the court of appeals may impose shall be equally divided among all
of the prisoners.” Id. Accordingly, given that ten Plaintiffs originally filed this lawsuit, each
Plaintiff is liable for one-tenth of the filing fee.
A.

Plaintiffs Dupuis, Randall, Williams, Coverdale, Lupinski, and Steidel
The Motions of Plaintiffs Dupuis, Randall, Williams, Coverdale, Lupinski, and Steidl are

GRANTED. (ECF Nos. 6, 7, 8, 9, 10, 12.) Each of the six prisoner-Plaintiffs who are

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proceeding in forma pauperis 2 (“prisoner-IFP Plaintiffs”) are required to pay $35.00, or onetenth of the $350.00 filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of the prisoner-IFP Plaintiffs’ inmate
trust accounts at PCI is DIRECTED to submit to the Clerk of the United States District Court
for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the
average monthly deposits to the inmate trust accounts or the average monthly balance in the
inmate trust accounts, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the
inmates’ preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until each prisoner-IFP Plaintiff has paid $35.00, their portion of the
filing fee, to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks
should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoners’ names and this case number must be included on each check.
It is ORDERED that Plaintiffs Dupuis, Randall, Williams, Coverdale, Lupinski, Steidl
be allowed to prosecute this action without prepayment of fees or costs and that judicial officers
who render services in this action shall do so as if the costs had been prepaid.
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Steidl (Inmate No. A597544), Dupuis (Inmate No. A656015), Williams (Inmate No. A180910),
Coverdale (Inmate No. A668217), Randall (Inmate No. A631725), and Lupinski (Inmate No.
A137158).
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The Clerk of Court is DIRECTED to mail a copy of this Order to the prisoner IFP
Plaintiffs and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of
this Order to the Court’s financial office in Columbus.
B.

Plaintiff Hendricks
Plaintiff Hendricks’ initial Motion for Leave to Proceed in forma pauperis is DENIED as

MOOT. (ECF No. 13.) Plaintiff Hendricks’ revised Motion for Leave to Proceed in forma
pauperis is GRANTED. (ECF No. 24.) Because Plaintiff Hendricks is a non-prisoner
proceeding in forma pauperis, his portion of the filing fee is $0. All judicial officers who render
services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).
C.

Plaintiff Nameth
It is RECOMMENDED, however, that Plaintiff Nameth’s Motion for Leave to Proceed

in forma pauperis be DENIED. (ECF No. 11.)
The United States Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331 (1948), set forth the legal standards governing applications to proceed in forma pauperis.
The Adkins Court advised that “one must not be absolutely destitute to enjoy the benefit of the
statute” and that the statute does not require an individual to “contribute . . . the last dollar they
have or can get.” Id. at 339. Rather, what is required is a demonstration via affidavit that
“because of his [or her] poverty,” the applicant cannot pay the fee and continue to provide for the
necessities of life. Id.
In the instant action, Plaintiff Nameth’s affidavit reveals that he currently possesses
$3,555 in his prison account. Plaintiff Nameth’s portion of the $400.00 filing fee is $40.00
dollars. Under these circumstances, Plaintiff Nameth will not suffer significant financial burdens
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or be deprived of the necessities of life by paying his portion of the filing fee. Accordingly, it is
RECOMMENDED that Plaintiff Nameth’s Motion for Leave to Proceed in forma pauperis be
DENIED and that Plaintiff be required to $40.00, his portion of the filing fee, in order to proceed
in this action. (ECF No. 11.) Plaintiff Nameth must submit the requisite $40.00 filing fee within
TWENTY-ONE (21) DAYS. Failure to do so will result in dismissal of Nameth’s claims for
failure to prosecute.
D.

Plaintiffs Carpenter and Austin
Plaintiffs Carpenter and Austin have failed to comply with this Court’s Order to pay the

filing fee or to file an application to proceed in forma pauperis. As a result, it is
RECOMMENDED that Plaintiffs Carpenter and Austin be ASSESSED $40.00, the full amount
of the filing fee for which they are responsible for, and that their claims be DISMISSED for
want of prosecution. In re Prison Litig. Reform Act, 105 F.3d at 1132. Further, it is
RECOMMENDED that their claims not be reinstated to the Court’s active docket even if the
filing fee is then paid in full. Id.
II.

PROCEDURE ON OBJECTIONS

If Plaintiffs seek review by the District Judge of this Report and Recommendation, they
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiffs are specifically advised that the failure to object to the Report and
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Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
III.
The Court will conduct an initial screening of the Complaint under 28 U.S.C. § 1915A as
soon as practicable to determine whether or not any claims are subject to dismissal as frivolous,
malicious, failing to state a claim, or because the Complaint seeks monetary relief from a
Defendant who is immune from such relief. The Court will then enter an appropriate order and
direct service of summons and complaint on Defendants.
IT IS SO ORDERED.

Date: January 7, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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