Spates v. Department of Rehabilitation and Correction

Filing 6

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Antonio Spates. It is RECOMMENDED that Plaintiff's motion be denied. Objections to R&R due by 11/17/2016. Signed by Magistrate Judge Kimberly A. Jolson on 10/31/2016. (pes)(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

ANTONIO SPATES,
Plaintiff,
v.

Civil Action 2:16-cv-935
Judge Algenon L. Marbley
Magistrate Judge Jolson

DEPARTMENT OF
REHABILITATION AND
CORRECTION, et al.,
Defendants.

REPORT AND RECOMMENDATION
On September 28, 2016, Plaintiff moved for leave to proceed in forma pauperis under 28
U.S.C. § 1915(a). (Doc. 1). 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 September 29,
2016, the Court directed Plaintiff to submit to the Court within 30 days a certified account
statement from the prison cashier in compliance with 28 U.S.C. § 1915(a)(2). (Doc. 2). 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)). In response to the Court’s
Order, Plaintiff reiterated his need to proceed in forma pauperis because he and his family have
little money. (Doc. 3).

On October 6, 2016, the Court once again informed Plaintiff that in order to proceed in
forma pauperis, the law required him to submit: “a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6-month period immediately
preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of
each prison at which the prisoner is or was confined.” (Doc. 4). In response to the Court’s
Order, Plaintiff once again responded by explaining his financial situation. (Doc. 5). Plaintiff
has failed to submit a certified copy of his trust fund account statement in accordance with the
Court’s October 6, 2016 Order. Accordingly, it is RECOMMENDED that Plaintiff’s motion for
leave to proceed in forma pauperis be denied. (Doc. 1).
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

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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: October 31, 2016

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

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