McQueen v. White

Filing 2

ORDER directing Plaintiff to either pay the $400.00 filing fee or request leave to proceed in forma pauperis within thirty days. Signed by Magistrate Judge Terence P. Kemp on 2/29/2016. (agm)(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
John McQueen,

:
Plaintiff,

:
:

Mark A. White,
Defendant.

JUDGE ALGENON L. MARBLEY

:

v.

Case No. 2:16-cv-0152

Magistrate Judge Kemp

:
ORDER

Plaintiff John McQueen filed this action against Mark A.
White, who appears to be a doctor from whom Mr. McQueen sought
treatment.

Mr. McQueen has neither paid the filing fee for a

civil case ($400.00) nor has he submitted an application to
proceed in forma pauperis.
case can proceed.

One or the other is needed before the

He will be directed either to pay the fee or

move for leave to proceed in forma pauperis.
The Court adds this note.

Should Mr. McQueen file an in

forma pauperis application, the Court will then review his
complaint under 28 U.S.C. §1915(e)(2), which provides that in
proceedings in forma pauperis, "[t]he court shall dismiss the
case if ... (B) the action ... is frivolous or malicious [or]
fails to state a claim on which relief can be granted...."

The

purpose of this section is to prevent suits which are a waste of
judicial resources and which a paying litigant would not initiate
because of the costs involved.
319 (1989).

See Neitzke v. Williams, 490 U.S.

It appears that Mr. McQueen’s complaint would not

survive such a review.
In his complaint, Mr. McQueen states that he is attempting to
appeal a decision of the Ohio Supreme Court which upheld the
dismissal of a state court action he filed against Dr. White (as

the complaint says, “Plaintiff, John McQueen, requests this
honorable court to accept jurisdiction of his appeal form the
judgment of the Ohio Supreme Court entered Feb. 10, 2016, under
Case No. 2015-1817...”).

The background of that case can be

found in McQueen v. White, 2015 WL 5703293 (Franklin Co. App.
Sept. 29, 2015), appeal not allowed 144 Ohio St.3d 1478 (Feb. 10,
2016).

But a United States District Court has no jurisdiction to

hear an appeal from a decision of a state court. See Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416 (1923)(“The jurisdiction
possessed by the District Courts is strictly original”)(original
in this context means “not appellate”). The only federal court
which has appellate jurisdiction to review state court judgments
is the United States Supreme Court. As the Supreme Court has
said, it “is vested, under 28 U.S.C. §1257, with jurisdiction
over appeals from final state-court judgments. We have held that
this grant of jurisdiction is exclusive.” Lance v. Dennis, 546
U.S. 459, 463 (2006). Nevertheless, this Court cannot make any
decision - even a decision that the case cannot proceed and must
be dismissed for lack of jurisdiction - until Mr. McQueen either
pays the filing fee or asks to be relieved of that obligation
because he cannot afford it.
It is therefore ordered that, within thirty days, Mr.
McQueen either pay the $400.00 filing fee or request leave to
proceed in forma pauperis. He can find an application to proceed
without prepayment of fees and affidavit on the Court’s website
under “Forms.” If he does neither, the case will be dismissed
for failure to pay the filing fee, although, as noted above, even
if he does pay the fee or ask for leave to proceed in forma
pauperis, the case will likely be dismissed for lack of
jurisdiction.
/s/ Terence P. Kemp
United States Magistrate Judge

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