Evans, Jr. v. Scioto County Common Pleas Court and Judge's of General, Domestic & Probate Divisions et al

Filing 28

REPORT AND RECOMMENDATION that 27 MOTION for Leave to Appeal in forma pauperis filed by William H. Evans, Jr. be denied and that Plaintiff be advised that if he wishes to appeal, he must pay the full appellate filing fee. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 3/31/2016. (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
William H. Evans, Jr.,

:

Plaintiff,

:
:

v.
Scioto County Common Pleas
Court and Judge’s of General,
Domestic & Probate Divisions,
et al.,
Defendants.

Case No. 2:15-cv-769
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:
:
:

REPORT AND RECOMMENDATION
Plaintiff, William H. Evans, Jr., a state prisoner who
resides at the Ross Correctional Institution, submitted his
complaint in this case on March 2, 2015.

His complaint was

accompanied by a motion for leave to proceed in forma pauperis.
However, as the United States Court of Appeals for the Sixth
Circuit has recognized, Mr. Evans 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.

See Evans v. Owen,

No. 09-3078 (6th Cir. June 1, 2009).
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. Evans is not entitled to

proceed in forma pauperis and to pay either the District Court or
appellate 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 for filing a case or
filing an appeal.
In a prior Report and Recommendation (Doc. 7), the Court
found that Mr. Evans was required to pay the full filing fee for
this case.

He objected, but that recommendation was upheld by

Judge Smith.

(Doc. 10).

Mr. Evans then filed a motion for leave

to appeal in forma pauperis and a notice of appeal.

On August

27, 2015, this Court denied leave to proceed in forma pauperis on
appeal, again citing the “three strikes” rule.

(Doc. 19).

That

appeal has since been dismissed.
On November 25, 2015, the Court, noting that Mr. Evans had
never paid the filing fee, dismissed the case.
Evans has also appealed that order.
proceed on appeal in forma pauperis.

(Doc. 24).

Mr.

He has again requested to
For the same reasons which

supported the Court’s denial of that request in connection with
the previous appeal, the Court should deny this latest motion.
It is therefore recommended that the motion for leave to appeal
in forma pauperis (Doc. 27) be denied and that Mr. Evans be
advised that if he wishes to appeal, he must pay the full
appellate 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
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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

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