Boddie v. Van Steyn

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C. Smith on 11/17/15. (lvw)(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,
vs.

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

SCOTT J. VAN STEYN,
Defendants.

ORDER
On July 17, 2015, the United States Magistrate Judge issued a Report and
Recommendation recommending that the Court “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.” (See Report and Recommendation at 2, Doc.
10). The parties were advised of their right to object to the Report and Recommendation. This
matter is now before the Court on Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation. (See Doc. 11). The Court will consider the matter de novo. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff’s Objections continue to challenge the Magistrate Judge’s conclusion and this
Court’s adoption that the “three strikes” rule applies to this case. However, that issue has been
ruled upon and is no longer pending before this Court. Further, the Defendant notes that despite
filing an appeal, he is confused as to why this matter is still before this Court. The Magistrate

Judge correctly explained this in the Report and Recommendation. The Court of Appeals only
has jurisdiction to hear final appealable orders, but none have been issued in this case.
Accordingly, the notice of appeal is premature.
The Court has carefully reviewed the Report and Recommendation and Plaintiff’s
objections. The Court agrees with the findings of the Magistrate Judge that the appeal in this
case is not taken in good faith. And, for that same reason, Plaintiff’s motion to proceed in forma
pauperis is denied. Further, Plaintiff, a prisoner subject to the “three strikes” rule, is not entitled
to proceed on appeal without paying the filing fee.
Therefore, for the reasons stated in the Report and Recommendation, this Court finds that
Plaintiff’s objections are without merit and are hereby OVERRULED.
The Clerk shall remove Documents 8 and 10 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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