Martin v. HFC et al

Filing 7

REPORT AND RECOMMENDATION re 1 & 6 MOTION for Leave to Proceed IFP: The Magistrate Judge RECOMMENDS that Plaintiff's Motions be DENIED, that plaintiff be granted thirty days to pay the full filing fee and that Plaintiff be advised that his f ailure to do so will result in the dismissal of the action for want of prosecution. Objections to R&R due within fourteen days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 8/4/2015. (er)(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 MARTIN,
Plaintiff,
vs.

Case No. 2:15-cv-2435
Judge Marbley
Magistrate Judge King

HFC, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, initiated this civil rights action
with a motion for leave to proceed without payment of fees or costs.
Motion for Leave to Proceed in Forma Pauperis, ECF No. 1. However,
that motion was not accompanied by the trust fund statement from his
prison institution, as required by the Prison Litigation Reform Act
(“PLRA”). See 28 U.S.C. § 1915(a)(2). On June 24, 2015, plaintiff was
granted thirty (30) days to file an application that complies with the
PLRA: “[I]n particular, plaintiff must submit the required executed
trust fund statement from his institution.” Opinion and Order, ECF No.
2, at p. 2. Plaintiff was also specifically advised that his “failure
to do so will result in the denial of leave to proceed in forma
pauperis.” Id.1 Plaintiff has filed an objection to that order,
Objection, ECF No. 5, which remains pending. This matter is now before
the Court on plaintiff’s August 3, 2015 Leave to Proceed in Forma
1

The Court also found that the Complaint alleges “imminent danger of serious
physical injury” sufficient to overcome the “three strikes” provision of the
PLRA, 28 U.S.C. § 1915(g). Opinion and Order, ECF No. 2, pp. 2-3.

1

Pauperis Do [sic] to Indigence, Status Below Poverty Level Attested to
in 28 USC 1746 Affidavit Under Penalties for Perjury, ECF No. 6. This
motion is supported by only plaintiff’s declaration that his income
falls below federal poverty standards. Affidavit of Poverty, ECF No.
6, pp. 3-4. Plaintiff has never submitted the prison trust fund
certification required by the PLRA.
In his most recent motion, plaintiff insists, once again, that he
need not comply with the requirements of the PLRA. Plaintiff is
mistaken. See, e.g., Martin v. Lowery, Case No. 05-3258 (6th Cir. Sept.
30, 2005); Martin v. Woods, 2:12-cv-341, Report and Recommendation
(S.D. Ohio July 2, 2012).
It is therefore RECOMMENDED that plaintiff’s motions for leave to
proceed without prepayment of fees or costs, ECF No. 1, ECF No. 6, be
denied, that plaintiff be granted thirty (30) days to pay the full
filing fee, and that plaintiff be advised that his failure to do so
will result in the dismissal of the action for want of prosecution.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

2

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

August 4, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

3

to