Starner v. Clark

Filing 21

ORDER adopting 15 Report and Recommendations & denying 14 Motion regarding Special Pleader Pursuant to S.D. Ohio Civ. R. 7.2. Signed by Judge Gregory L. Frost on 12/22/2015. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Danny Starner, 595-877 @ Chillicothe Correctional Institution, PO Box 5500, 15802 State Route 104 North, Chillicothe OH 45601])

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANNY E. STARNER,
Plaintiff,
v.

Case No. 2:15-cv-2764
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

ADMINISTRATOR SHANE CLARK,
Defendant.

ORDER
This matter is before the Court for consideration of the Magistrate Judge’s November 23,
2015 Report and Recommendation (ECF No. 15) and Plaintiff’s objections (ECF No. 16). For
the reasons that follow, the objections are not well taken.
Plaintiff, Danny E. Starner, filed his complaint and a motion for leave to proceed in
forma pauperis in August 2015. (ECF Nos. 1, 2.) The Magistrate Judge granted the motion in
September 2015 and directed the custodian of Plaintiff’s inmate trust account follow a payment
plan that included the submission of 20% of Plaintiff’s monthly income when the amount in
Plaintiff’s account exceeds $10.00 until the full filing fee has been paid to this Court. (ECF No.
3, at Page ID # 43-44.)
Thereafter, Plaintiff filed a document titled “SPECIAL PLEADER Pursuant to S.D. Ohio
Civ. R. 7.2.” (ECF No. 14.) In this filing, Plaintiff indicated that he has two other lawsuits
pending and that debits to his inmate account caused by all three cases are placing his account
into the red. He asserted that the policy and procedures that the Ohio Department of
Rehabilitation and Correction follow in handling inmate accounts are unreasonable and restrict

his access to the courts. Plaintiff asked this Court to order his correctional institution to
reimburse him for any amount over $10.00 per month that has been deducted from his account.
On November 23, 2015, the Magistrate Judge issued a Report and Recommendation on
the “SPECIAL PLEADER pursuant to S.D. Ohio Civ. R. 7.2.” filing. (ECF No. 15.) In the
Report and Recommendation, the Magistrate Judge construed Plaintiff’s filing as a motion for
injunctive relief and recommended that this Court deny the motion because “courts consistently
deny motions for [injunctive relief] where the requested relief is unrelated to the conduct alleged
in the complaint.” (Id. at Page ID # 103.) The Magistrate Judge recognized that “the bases upon
which Plaintiff seeks injunctive relief are unrelated to the retaliation claims he raised in his
Complaint” and that “the individuals from whom Plaintiff seeks relief are not named as
defendants in this action.” (Id. at Page ID # 104.)
Plaintiff objects to the Magistrate Judge’s Report and Recommendation. (ECF No. 16.)
Briefing on the objection has closed, and the Report and Recommendation and objections are
ripe for disposition.
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).
In his objections, Plaintiff insists that he is not seeking injunctive relief, but simply “an
order commanding the [Chillicothe Correctional Institution] cashier to only debit his account
when it raises [sic] above $10.00.” (ECF No. 16, at page ID # 107.) Semantics do not evade the

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fact that, regardless of the label applied to Plaintiff’s filing, the filing fails to present grounds
warranting the action Plaintiff requests.
First, the relief Plaintiff seeks is outside the scope of this action. The Court cannot see
how this case provides a mechanism through which Plaintiff can assert claims of a constitutional
violation against non-parties and pursue relief based on those purported violations. This alone
defeats Plaintiff’s filing.
Second, even if Plaintiff could pursue the relief he seeks in this context, he has failed to
demonstrate any violation. Courts have consistently upheld the Prison Litigation Reform Act’s
filing fee provision against constitutional challenges. See Taylor v. Delatoore, 281 F.3d 844,
847-49 (9th Cir. 2002) (collecting cases). The Sixth Circuit has previously addressed the
specific access-to-the-courts issue in Erdman v. Martin, 52 F. App’x 801 (6th Cir. 2002), a case
involving withdrawals from an inmate’s prison account caused by multiple cases. The court of
appeals explained:
Erdman contends that the withdrawals denied him access to the courts.
Inmates have a constitutionally protected right of access to the courts. See
Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
However, the right of access to the courts is not unrestricted and does not mean
that an inmate must be afforded unlimited litigation resources. See Lewis v.
Casey, 518 U.S. 343, 352-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). There is
no generalized right to litigate which is protected by the First Amendment.
Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999). In Lewis, the Supreme
Court held that an inmate claiming that he was denied his right to the courts must
show that he suffered an actual litigation related injury or legal prejudice because
of the actions of the defendants. Lewis, 518 U.S. at 349-51, 116 S.Ct. 2174.
Erdman has not identified any case in which he has suffered injury or
prejudice because fees were withdrawn to pay his debts. The existence of this
very appeal establishes that he is not being deprived access to the courts. The
argument is meritless.
Id. at 803. Similarly, Plaintiff has failed to demonstrate injury or prejudice here. Although
Plaintiff asserts that the self-inflicted debits about which he complains create a block to filing in
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his case, he has not shown this Court how that is true. In fact, he is continuing to file documents
on a regular and timely basis, undercutting his own premise.
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (ECF No. 16),
ADOPTS and AFFIRMS the Report and Recommendation (ECF No. 15), and DENIES
Plaintiff’s “SPECIAL PLEADER Pursuant to S.D. Ohio Civ. R. 7.2.” filing (ECF No. 14).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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