Hillman v. O'Shaughnessy et al

Filing 2

REPORT AND RECOMMENDATION that 1 MOTION for Leave to Proceed in forma pauperis be denied - Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/19/2015. (agm1)(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
Robert L. Hillman,

:

Plaintiff,

:

v.

:
:

JUDGE MICHAEL H. WATSON

:

Maryellen O’Shaughnessy,
et al.,

Case No. 2:15-cv-625

Magistrate Judge Kemp

Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Robert L. Hillman, a state prisoner, filed this
civil rights action under 42 U.S.C. §1983 against Maryellen
O’Shaughnessy, the Franklin County Clerk of Courts and John
O’Grady, the former Franklin County Clerk of Courts and current
Franklin County Commissioner.

Mr. Hillman

has not paid the

filing fee, but has filed a motion for leave to proceed in forma
pauperis.

That motion was accompanied by the required trust fund

statement from his institution.

In the usual case, the Court

would assess a partial filing fee based on that trust fund
statement.
However, Mr. Hillman has had three or more cases dismissed
in the past as frivolous or for failure to state a claim.

See,

e.g., Hillman v. Simms, 2008 WL 5273912, Case No. 2:08-cv-717
(S.D. Ohio December 17, 2008), affirmed 2009 WL 650486 (S.D. Ohio
March 11, 2009)(dismissed for failure to state a claim); Hillman
v. Simms, 2009 WL 4682448, Case No. 2:09-cv-810 (S.D. Ohio
December 3, 2009)(dismissed for failure to state a claim); Muff
v. Collins, 2009 WL 233561, Case No. 2:08-cv-1027 (S.D. Ohio
January 29, 2009)(dismissed for failure to state a claim).

This

fact was noted by the Court in Hillman v. Edwards, Case No. 2:12cv-850, see Opinion and Order (Doc. 6).

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, he is not entitled to proceed in

forma pauperis and to pay the filing fee in installments unless
he can demonstrate that he meets the “imminent danger”
requirement of §1915(g).

Otherwise, he must pay the entire

filing fee (currently $400.00) at the outset of the case.
For purposes of determining whether a pleading satisfies
this exception, the court considers whether the plaintiff is in
imminent danger at the time of the filing of the complaint.
Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. March 28,
2011)(table)(noting that “the plain language of 1915(g) requires
the imminent danger to be contemporaneous with the complaint’s
filing”).

Although the Court of Appeals has not offered a

precise definition of “imminent danger,” it has suggested that
the threat of serious physical injury “must be real and
proximate.”

Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir.

August 20, 2008).

Moreover, “[a]llegations that the prisoner has

faced danger in the past and allegations that are conclusory,
ridiculous, or clearly baseless do not suffice to allege imminent
harm.”

Tucker v. Pentrich, 2012 WL 1700701, at *1 (6th Cir. May

15, 2012), citing Rittner, supra.
Mr. Hillman has not addressed the issue of “imminent danger”
in his initial motion (#1).

Further, imminent danger is not

apparent from the allegations of the complaint.

Rather, the

focus of Mr. Hillman’s complaint relates to the alleged misfiling
-2-

of a criminal complaint submitted by Mr. Hillman as a civil
complaint.
In summary, Mr. Hillman has failed to show that he was under
imminent danger of serious physical injury as defined by §1915(g)
for purposes of his current complaint filed while he was
incarcerated at the Chillicothe Correctional Institution.
Consequently, the Court recommends that the pending motion to
proceed in forma pauperis be denied and that Mr. Hillman be
required to pay the entire $400.00 filing fee.

The Court further

recommends that, if Mr. Hillman fails to pay the entire filing
fee within thirty days of an order adopting this Report and
Recommendation, this action be dismissed without prejudice for
failure to prosecute and that Mr. Hillman still be assessed the
$400.00 filing fee.

See, e.g., Cohen v. Growse, 2011 WL 947085,

*5-6 (E.D. Ky. March 14, 2011); see also In re Alea, 286 F.3d
378, 381 (6th Cir. 2002).
IV.

Recommended Decision

Based on the above discussion, it is recommended that the
motion to proceed in forma pauperis (#1) be denied and that
plaintiff be required to pay the entire $400.00 filing fee.

It

is further recommended that plaintiff’s failure to do so within
30 days of an order adopting this Report and Recommendation
should result in this action being dismissed without prejudice
for failure to prosecute and the assessment of the $400.00 filing
fee against plaintiff.
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).
of this Court shall make a de novo determination of those
-3-

A judge

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
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

-4-