Boddie v. Van Steyn

Filing 16

REPORT AND RECOMMENDATION that 15 MOTION for Leave to Appeal in forma pauperis filed by Howard Boddie, Jr. be denied. Objections to R&R due by 3/18/2016. Signed by Magistrate Judge Terence P. Kemp on 3/1/2016. (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.

In a second

Report and Recommendation (Doc. 10), the Court found that the
notice of appeal was premature and without effect and that, as a
prisoner subject to the “three strikes” rule, Mr. Boddie was not
entitled to proceed on appeal without paying the filing fee.
That recommendation also was upheld (Doc. 12).

By order dated

November 25, 2015, this case was dismissed for Mr. Boddie’s
failure to pay the filing fee (Doc. 13).
Following the dismissal, Mr. Boddie has filed another notice
of appeal and motion for leave to appeal in forma pauperis.

It

is recommended that the Court deny the motion (Doc. 15) because,
as a prisoner subject to the “three strikes” rule, Mr. Boddie is
not entitled to proceed on appeal without paying the filing fee.
It is further recommended that he be assessed the appellate
filing fee and be given thirty days within which to pay it.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen 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 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
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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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