Kubico v. Hoffman et al

Filing 7

REPORT AND RECOMMENDATIONS that Plaintiff's 2 MOTION for Leave to Proceed in forma pauperis be denied and that this action be dismissed for failure to prosecute. Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Kimberly A. Jolson on 1/3/2017. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION PHILLIP J. KUBICO, Plaintiff, v. Civil Action 2:16-cv-910 Chief Judge Edmund A. Sargus, Jr. Magistrate Judge Jolson WILLIAM B. HOFFMAN, et al., Defendants. REPORT AND RECOMMENDATION On November 16, 2016, Plaintiff moved for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). (Doc. 2). Plaintiff’s motion for leave did not include a certified copy of his trust fund account statement, which is required by 28 U.S.C. § 1915(a)(2). On November 17, 2016, the Court directed Plaintiff to submit to the Court within 30 days a certified copy of his trust fund account statement from the prison cashier in compliance with 28 U.S.C. § 1915(a)(2). (Doc. 4). The Court informed Plaintiff that his failure to follow the Court’s direction would require the Court to “presume that the prisoner is not a pauper, . . . assess the inmate the full amount of fees[,] . . . [and] then order the case dismissed for want of prosecution.” (Id. (quoting In re Prison Litig. Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997)). Plaintiff has failed to submit a certified copy of his trust fund account statement in accordance with the Court’s November 17, 2016 Order. Accordingly, it is RECOMMENDED that Plaintiff’s motion for leave to proceed in forma pauperis be denied (Doc. 2) and that this action be DISMISSED for failure to prosecute. 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 findings or recommendations to which objection is made, together with supporting authority for the objection(s). A Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a 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 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: January 3, 2017 /s/ Kimberly A. Jolson KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE 2

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