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

Filing 7

REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis filed by William H. Evans, Jr. in that the Court RECOMMENDS the Motion for Leave to Proceed In Forma Pauperis be DENIED. Objections to R&R due by 4/24/2015. Signed by Magistrate Judge Terence P Kemp on 4/7/15. (sem1)(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, 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 for prisoners not granted in forma
pauperis status) at the outset of the case.
Mr. Evans does not address the issue of imminent danger in
his complaint.

Rather, the issues raised by his complaint relate

to alleged RICO violations committed by various state and federal
judges in Ohio.

Essentially, Mr. Evans asserts that these judges

conspired to issue a series of fraudulent rulings ultimately
resulting in his being convicted of murder.

None of these

allegations, however, can be interpreted as asserting any of his
claims in terms of imminent danger.
Mr. Evans mentions briefly in paragraph 18 that he is in
“need of surgery to spine and feet,” that he suffers from
“inability of proper lung functions (which is in part due to COPD
and in part due to Curvature of Spine which touches the lungs
restricting inflation),” and that his disabilities have not been
accommodated.

However, he does not explain how any action or

inaction relating to these conditions has subjected him to
imminent harm.
The Court recognizes that the denial of medical treatment
under specific circumstances may satisfy the imminent danger
requirement.

Vandiver v. Vasbinder, 416 Fed. Appx. 560, 563 (6th

Cir. March 28, 2011).

However, the Court does not read Mr.

Evans’ complaint as asserting a claim for the denial of medical
care just because it contains a passing reference to his physical
conditions.

Further, he has not named as defendants any

individuals responsible for his medical care.

Consequently, the

Court has no basis for construing Mr. Evans’ complaint as
asserting imminent danger resulting from the denial of medical
treatment.
For these reasons, it is recommended that the motion for
leave to proceed in forma pauperis (Doc. 1) be denied, and that
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Mr. Martin be directed to submit the entire $400.00 filing fee
within thirty days if he wishes to proceed with this action.

If

that recommendation is accepted, he should also be advised that
if he does not pay the fee, the action will be dismissed and will
not be reinstated even upon subsequent payment of the filing fee.
See McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir. 1997).
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
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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