Sevilla v. O'Brien et al

Filing 21

REPORT AND RECOMMENDATIONS re 20 MOTION for Leave to Vacate Court Cost Pursuant to Fed. R. Civ. P. 60(B), filed by Jesus Sevilla. It is Recommended that this Motion be Denied. Objections to R&R due by 3/2/2018. Signed by Magistrate Judge Norah McCann King on 2/16/2018. (daf)(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

JESUS SEVILLA,
Plaintiff,
Civil Action 2:15-cv-2979
JUDGE JAMES L. GRAHAM
Magistrate Judge King

vs.
RON O’BRIEN, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brought this civil rights action
under 42 U.S.C. § 1983, complaining of alleged misconduct on the part
of the defendant prosecutors and other alleged deficiencies in
connection with his state criminal trial. Final judgment dismissing
the action was entered following the initial screen of the Complaint,
ECF No. 1. Order, ECF No. 7; Judgment, ECF No. 8. That judgment was
affirmed by the United States Court of Appeals for the Sixth Circuit.
Sevilla v. O’Brien, No. 16-3006 (6th Cir. May 24, 2016). The United
States Supreme Court denied Plaintiff’s petition for a writ of
certiorari. Sevilla v. O’Brien, No. 16-5548 (Sup. Ct., Oct. 11, 2016).
This matter is now before the Court on Plaintiff’s Motion for Leave to
Vacate Court Cost pursuant to Fed. R. Civ. P. 60(B), ECF No. 20
(“Plaintiff’s Motion”).
Plaintiff was granted leave to proceed in forma pauperis at the
outset of the case. Order, ECF No. 4. Consistent with that Order and
with the express provisions of 28 U.S.C. § 1915(b)(2), however,

1

partial payments of the full filing fee have been deducted from
Plaintiff’s prison account since that time. Plaintiff’s Motion asks
that this Court direct that further deductions not be made. He
contends that these deductions from his “meager state allowance
create[] an unnecessary financial burden on him,” id. at PageID# 120;
he represents that he is willing to perform “community service” in the
prison in lieu of such payments. Id. at PageID# 119.
This Court is without authority to waive payment by plaintiff of
the full filing fee in this action. The United States Court of Appeals
for the Sixth Circuit has addressed this issue:
In the Prisoner Litigation Reform Act of 1995 (the
“PLRA”), Congress amended 28 U.S.C. § 1915 by adding
language requiring all prisoner litigants to pay the full
filing fees for civil actions and appeals. The intent of
the amendment was to deter frivolous and vexatious prisoner
litigation by exposing prisoners to the same financial
risks and considerations faced by other litigants. See Lyon
v. Krol, 127 F.3d 763, 764 (8th Cir.1997); Leonard v. Lacy,
88 F.3d 181, 185 (2d Cir.1996). This court noted the result
of that amendment:
Pauper status for inmates, as we previously knew it,
no longer exists. While incarcerated, all prisoners
must now pay the required filing fees and costs....
Prisoners are no longer entitled to a waiver of fees
and costs.
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997).
Congress understood that many prisoners would not be able
to pay the full filing fees immediately. It therefore
provided that prisoners (who would have been eligible for a
complete or partial waiver of fees prior to 1995) would now
be assessed an initial filing fee with a requirement that
the full fee be paid by means of future periodic deductions
from their prison accounts. See 28 U.S.C. § 1915(b). . . .
***
In McGore, supra, this court also held that the
obligation to pay the full filing fee under § 1915(b)

2

arises at the time a civil complaint is filed and that the
subsequent dismissal of the action, even if voluntary, does
not negate that obligation. 114 F.3d at 607.
In re Alea, 286 F.3d 378, 380–81 (6th Cir. 2002)(footnotes omitted).
It is therefore RECOMMENDED that Plaintiff’s Motion for Leave to
Vacate Court Cost pursuant to Fed. R. Civ. P. 60(B), ECF No. 20, be
DENIED.

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).

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

of

pretrial

motion

3

by

failing

to

timely

object

to

magistrate

judge’s

report

and

recommendation).

Even

when

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

to

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

“vague,

general,

or

conclusory

objections

does

not

meet

the

requirement of specific objections and is tantamount to a complete
failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th Cir.
2002) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).

February 16, 2018

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

4