Boddie v. Van Steyn

Filing 10

REPORT AND RECOMMENDATION that the Court both certify that the appeal is nottaken in good faith, and deny the motion because, as a prisoner subject to the three strikes rule, Mr. Boddie is not entitled to proceed on appeal without paying the filing fee. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 7/17/2015. (agm)(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
EASTERN DIVISION
Howard Boddie, Jr.,

:

Plaintiff,

:

v.

:
:

Scott J. Van Steyn,
Defendant.

Case No. 2:15-cv-06
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION

Plaintiff, Howard Boddie, Jr., a state prisoner, submitted
his complaint in this case on January 2, 2015.

His complaint was

accompanied by a motion for leave to proceed in forma pauperis.
However, Mr. Boddie has had three or more cases or appeals
dismissed in the past as frivolous or for failure to state a
claim on which relief can be granted.

Under that portion of the

Prison Litigation Reform Act codified at 28 U.S.C. §1915(g), the
so-called "three strikes" rule, a prisoner may not bring a suit
in forma pauperis if that prisoner "has, on 3 or more occasions,
while incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed on
the ground that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury."

Thus, Mr.

Boddie was not entitled to proceed in forma pauperis and to pay
either the District Court or appellate filing fee in installments
unless he demonstrated that he met the "imminent danger"
requirement of §1915(g).

Otherwise, he was required to pay the

entire filing fee for filing a case or filing an appeal.
In a prior Report and Recommendation (Doc. 2), the Court
found that Mr. Boddie was required to pay the full filing fee for

this case.

He objected, but that recommendation was upheld by

Judge Smith (Doc. 4) and his motion for reconsideration was
overruled (Doc. 6).

Mr. Boddie then filed a motion for leave to

appeal in forma pauperis and a notice of appeal.
Neither of Judge Smith’s orders are final appealable orders.
Generally speaking, the Court of Appeals has jurisdiction to
consider appeals from orders of the District Courts which are
“final decisions,” see 28 U.S.C. §1291, which grant or refuse to
grant injunctions, see 28 U.S.C. §1292(a), or which are
collateral orders determining claims which are separable from and
collateral to the merits of the case, see Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949).
question are none of these things.

The orders in

Consequently, the notice of

appeal is premature and without effect.

That being the case, it

is recommended that the Court both certify that the appeal is not
taken in good faith, which is one basis on which to deny the
motion for leave to appeal in forma pauperis, and deny the motion
because, as a prisoner subject to the “three strikes” rule, Mr.
Boddie is not entitled to proceed on appeal without paying the
filing fee.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
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or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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