McGlone II v. Ross Correctional Inst. et al

Filing 9

ORDER 7 ADOPTING REPORT AND RECOMMENDATIONS for 5 Motion for Leave to Proceed in forma pauperis filed by Jerry L. McGlone II,. Signed by Judge Gregory L. Frost on 9/21/15. (kn)(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
JERRY L. McGLONE II,
Plaintiff,

Case No. 2:15-cv-1534
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
ROSS CORRECTIONAL
INST., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of the Magistrate Judge’s August 31,
2015 Report and Recommendation (ECF No. 7) and Plaintiff’s objection (ECF No. 8). For the
reasons that follow, the Court overrules the objection and adopts the Report and
Recommendation.
In the Report and Recommendation, the Magistrate Judge explained that Plaintiff had
previously been afforded the opportunity to either pay the filing fee or to submit a motion for
leave to proceed in forma pauperis. The Magistrate Judge noted that although Plaintiff had then
filed a motion for leave to proceed in forma pauperis, Plaintiff had failed to include the trust
fund statement required under 28 U.S.C. § 1915(a). Therefore, the Magistrate Judge noted,
Plaintiff had been given an additional thirty days from the Magistrate Judge’s June 26, 2015
Order in which to submit the missing statement or else he would be assessed the full filing fee
and his case would be dismissed for want of prosecution without the possibility of reinstatement.
Because Plaintiff filed nothing in response to the Magistrate Judge’s June 26, 2015 Order, the
Magistrate Judge recommended that the Court assess the full filing fee and dismiss this case for
failure to prosecute. (ECF No. 7, at Page ID # 55.)

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Plaintiff objects to this recommendation. When a party objects within the allotted time to
a report and recommendation, the Court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
Plaintiff’s objection fails. The objection bears a case caption for a different case, Case
No. 1:13-cv-126, and initially addresses events that occurred in 2013. Handwritten changes to
the first page of the objection insert the instant case’s case number and include a service date of
September 8, 2015. (ECF No. 8, at Page ID # 56.) But the substance of the first page of the
objection fails to speak to Plaintiff’s failure to file a trust fund statement as ordered by the
Magistrate Judge. In a second, handwritten page attached to the objection, Plaintiff then asserts
that an individual, apparently the correctional institution cashier, had failed to send “the proper
form” and that the form was now “enclosed.” (Id. at page ID # 57.) But the additional
attachments to the objection do not contain a trust fund statement; the attachments are two
requests for the issuance of subpoenas and a subpoena, all made on state court forms. (Id. at
Page ID # 58-60.)
This Court agrees with the reasoning and recommendation of the Magistrate Judge.
Plaintiff has twice been afforded the opportunity to correct the deficient manner in which he
attempted to pursue the instant case. Instead of addressing the deficiency, Plaintiff has filed a
document that presents information that is irrelevant to the deficiency and, despite asserting
otherwise, Plaintiff has still failed to remedy the deficiency, even belatedly. Accordingly,
Plaintiff’s objection is wholly without merit.

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For the foregoing reasons, the Court OVERRULES Plaintiff’s objection (ECF No. 8),
ADOPTS and AFFIRMS the Report and Recommendation (ECF No. 7), ASSESSES Plaintiff
the full filing fee of $400.00, and DISMISSES the case for want of prosecution without the
possibility of reinstatement. The Clerk shall enter judgment accordingly and terminate this case
on the docket records of the United States District Court for the Southern District of Ohio,
Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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