Hillman v. O'Shaughnessy et al

Filing 4

OPINION and ORDER adopting 2 the Report and Recommendation; denying 1 Plaintiff's Motion for Leave to Proceed in forma pauperis. Signed by Judge Michael H. Watson on 5/27/15. (jk) (This document has been sent 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

Robert L. Hillman,
Plaintiff,

v.

Case No. 2:15-cv-625

Maryellen O'Shaughnessy, eta/.,

Judge Michael H. Watson

Defendants.
OPINION AND ORDER
On February 17, 2015, Plaintiff moved for leave to proceed in forma pauperis
in this prose prisoner civil rights case. Mot., ECF No. 1. On February 19, 2015,
Magistrate Judge Kemp issued a report and recommendation ("R&R")
recommending that Plaintiff's motion be denied. Specifically, Judge Kemp
concluded that Plaintiff was prohibited from proceeding in forma pauperis under 28
U.S.C. § 1915(g) (also known as the "three-strikes provision").
Federal Rule of Civil Procedure 72(b)(2) provides that "[w]ithin 14 days after
being served with a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and recommendations." Fed.

R. Civ. P. 72(b)(2). "The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge
may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ.
P. 72(b)(3).

The R&R notified the parties of their right to object, and Plaintiff has timely
objected, ECF No.3. For the reasons that follow, Plaintiff's objections are
OVERRULED, and the R&R is ADOPTED.

Plaintiff is a prisoner subject to the provisions of the Prisoner Litigation
Reform Act ("PLRA") and, as such, any application to proceed in forma pauperis
must conform to 28 U.S.C. § 1915(a)(2). The PLRA prohibits the grant of leave to
proceed in forma pauperis under certain circumstances:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3
or more prior 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 grounds 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.
28 U.S.C. § 1915(g).
Judge Kemp concluded that Plaintiff "has had three or more cases dismissed
in the past as frivolous or for failure to state a claim." R&R 1, ECF No.2 (citing
Hillman v. Simms, No. 2:08-cv-717, 2009 WL 650486, at *2-3 (S.D. Ohio Mar. 11,

2009), adopting 2008 WL 5273912, at *2 (S.D. Ohio Dec. 17, 2008) (recommending
dismissal of the case for failure to state a claim); Hillman v. Simms, No. 2:09-cv810, 2009 WL 4682448, at *2 (S.D. Ohio Dec. 3, 2009) (dismissing the case for
failure to state a claim); Muff v. Collins, No. 2:08-cv-1 027, 2009 WL 233561, at *45 (S.D. Ohio Jan. 29, 2009) (dismissing the case for failure to state a claim)). Judge
Kemp also accounted Hillman v. Edwards, No. 2:12-cv-850, slip op. at 2-3 (S.D.
Ohio Oct. 15, 2011 ), in which Judge Gregory Frost has previously prohibited Plaintiff
from proceeding in forma pauperis under the three-strikes provision. R&R 1, ECF
Case No. 2: 15-cv-625

Page 2 of 4

No. 2. In the matter sub judice, Judge Kemp determined that Plaintiff "has not
addressed the issue of 'imminent danger' in his initial motion ... [and] imminent
danger is not apparent from the allegations of the complaint." /d. at 2. Judge Kemp
recommends the Court deny Plaintiff's motion and require Plaintiff to pay the entire
$400 filing fee. See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002) ("The intent of the
PLRA was to deter such [frivolous] litigation and it would be anomalous for a
provision of that Act to provide a means for the repeated filing of frivolous actions
without financial consequences to the prisoner litigant.").
Plaintiff admits that "the [M]agistrate is right about the number of civil
complaints filed by plaintiff." Obj. 2, ECF No. 3. Plaintiff argues that Judge Kemp "is
wrong in his opinion that plaintiff should be charged one way or the other." /d.
Plaintiff fails to cogently respond to Judge Kemp's findings. Rather, his
objections merely reiterate claims made in prior complaints. Plaintiff states that "had
this court listened to either one of plaintiff's civil complaints, the plaintiff would not
have felt the need to continue filing other civil matters associated with the same
issues." Obj. 1, ECF No.3. These objections do not indicate Judge Kemp erred in
his findings, and indeed, the Court finds no error.
Plaintiff requests that he be allowed to voluntarily dismiss his Complaint "and
not seek to punish Plaintiff ... simply because Plaintiff wants to exercise a
constitutional right." Obj. 2, ECF No. 3. However, it is this precise situation, a pro
se plaintiff filing the same claims over and over, in which the Sixth Circuit

determined that "the requirement that a prisoner litigant be liable for the payment of
the full filing fee despite the dismissal of his action may be burdensome, it is not
Case No. 2: 15-cv-625

Page 3 of 4

unfair." In re Alea, 286 F.3d at 382. Failure to impose the court cost on Plaintiff
would permit Plaintiff, who has been subject to the three-strikes provision twice now,
to continue to file frivolous civil complaints-taking valuable time away from other
non-frivolous litigation-without any consequences beyond their mere dismissal
under§ 1915(g). 1 /d.
As Plaintiff has not shown any portion of the R&R to be in error, Plaintiff's
objections are OVERRULED. The R&R is ADOPTED. Plaintiff's motion for leave to
proceed in forma pauperis, ECF No. 1, is DENIED. Plaintiff shall pay the $400 filing
fee within thirty (30) days. If Plaintiff fails to pay the fee, Plaintiff's complaint will be
dismissed without prejudice for failure to prosecute and an assessment of $400 will
be assessed against Plaintiff.
IT IS SO ORDERED.

1

The Court notes that the first instance in which Plaintiff was subject to the three-strikes provision,
Judge Frost did not impose the court cost on Plaintiff. See Hillman v. Edwards, No. 2:12--cv-850,
slip op. at 3 (S.D. Ohio Oct. 15, 2011 ).
Case No. 2: 15-cv-625

Page 4 of 4