Martin v. Gardner et al

Filing 10

REPORT AND RECOMMENDATIONS that the 8 MOTION for Leave to Proceed in forma pauperis filed by Robert Martin be DENIED and that this case be DISMISSED without prejudice under 28 USC § 1915(a)(2) for want of prosecution. Objecti ons to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Kimberly A. Jolson on 8/4/2016. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Robert Martin, #138-186 @ Marion Correctional Institution, PO Box 57, Marion OH 43302])

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT MARTIN, et al.,
Plaintiffs,
v.

Civil Action 2:16-cv-451
Judge Michael H. Watson
Magistrate Judge Jolson

BUREAU OF MEDICAL
SERVICES (BOMS), et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Robert Martin, a prisoner at the Marion Correctional Institution, submitted a
complaint to this Court on May 16, 2016. (Doc. 1). At the time he filed his complaint, Plaintiff
had neither paid the $400.00 filing fee nor submitted a request for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a). On June 16, 2016, this Court issued an Order directing
Plaintiff either to pay the filing fee or submit a proper motion for leave to proceed in forma
pauperis within thirty days. (Doc. 6). The Order also advised Plaintiff that his failure to comply
could result in the dismissal of this action for want of prosecution.
On July 13, 2016, Plaintiff moved to proceed in forma pauperis. (Doc. 8). Pursuant to
28 U.S.C. § 1915(a)(2), such a motion must include a copy of the prisoner’s trust fund account
statement “for the 6-month period immediately preceding the filing of the complaint.” The
statement must be certified by “the appropriate official of each prison at which the prisoner is or
was confined.” Id. Plaintiff’s July 13, 2016, motion to proceed in forma pauperis did not
contain a properly certified statement. (Doc. 8 at 5). Instead, it contained Plaintiff’s in forma
pauperis application, in which Plaintiff noted that he does not consent to the prison cashier

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taking funds from his account to pay a partial filing fee in this case. (See, e.g., Doc. 8 at 5, 7;
Doc. 8-1 at 12).
Plaintiff has raised this argument in at least one prior case:
Mr. Martin now claims that he does not consent to the prison cashier taking
funds from his account to pay even a partial filing fee in this case and asserts
that Congress had no power to adopt those provisions of the PLRA which
authorize such deductions from a prisoner’s account. He apparently has not,
and will not, submit the account statement which is mandated by § 1915(a)(2).
There are a number of problems with Mr. Martin’s approach to this
issue. First, the filing fee provision of the PLRA has consistently been upheld
against constitutional attack. See, e.g., Hampton v. Hobbs, 106 F.3d 1281, 1288
(6th Cir. 1997) (holding that a balancing of the various factors involved in a
Due Process analysis “compel[s] the conclusion that the Act does not violate a
prisoner's right to procedural due process”); see also Murray v. Dosal, 150 F.3d
814 (8th Cir. 1998) (same). Consequently, there is simply no merit to Mr.
Martin’s assertion that the Court cannot constitutionally apply the PLRA to him
or require him to submit his account statement if he wishes to proceed without
paying the filing fee in full at the outset of the case.
Martin v. Woods, No. 2:12-CV-341, 2012 WL 2564812, at *1 (S.D. Ohio July 2, 2012), report
and recommendation adopted, No. 2:12-CV-341, 2012 WL 4364264 (S.D. Ohio Sept. 24, 2012).
In other words, Mr. Martin’s argument does not do away with the indigency-application
requirements.
Based upon the above, Plaintiff was given thirty days to file a proper application to
proceed in forma pauperis, accompanied by a certified trust account statement, or pay the full
filing fee.

He failed to do either.

According to the Sixth Circuit, a court facing such a

circumstance “must presume that the prisoner is not a pauper, assess the inmate the full fee, and
order the case dismissed for want of prosecution.” Davis v. United States, 73 F. App’x 804, 805
(6th Cir. 2003).
It is therefore RECOMMENDED that Plaintiff’s motion to proceed in forma pauperis
(Doc. 8) be DENIED and that this case be DISMISSED without prejudice under 28 U.S.C. §
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1915(a)(2) for want of prosecution. See Davis, 73 F. App’x at 805; In re Prison Litig. Reform
Act, 105 F.3d 1131, 1132 (6th Cir. 1997); Burkowski v. Smith, No. CV 15-11384, 2015 WL
6750781, at *2 (E.D. Mich. Nov. 5, 2015) (“The Court dismisses the complaint without prejudice
for want of prosecution, because of Plaintiff's failure to comply with Magistrate Judge Whalen’s
deficiency order by failing to timely pay the filing fee or to provide the requested documentation
needed to proceed in forma pauperis.”); Labreck v. Mich. Dep’t of Treasury, No. 2:13-CV15275, 2014 WL 688192, at *2 (E.D. Mich. Feb. 21, 2014) (“The Court will dismiss the
complaint without prejudice for want of prosecution, because of Plaintiff’s failure to comply
with the deficiency order by failing to timely pay the filing fee or to provide the requested
documentation needed to proceed in forma pauperis.”); Fields v. Cottrill, No. 2:14-CV-483,
2014 WL 3530861, at *1 (S.D. Ohio July 15, 2014) (dismissal under the same circumstances).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed finding or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specific proposed findings or recommendations
to which objection is made. Upon proper objection, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the findings or recommendations made herein, may receive
further evidence or may recommit this matter to the Magistrate Judge with instructions.
28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report

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and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: August 4, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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