Payne v. Mohr et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis. It is RECOMMENDED that Plaintiff's motion for leave to proceed in forma pauperis be denied and that this action be DISMISSED for failure to prosecute and comply with the Court's Orders. Objections to R&R due by 12/23/2016. Signed by Magistrate Judge Kimberly A. Jolson on 12/6/2016. (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

LOWELL N. PAYNE, JR.,
Plaintiff,
v.

Civil Action 2:16-cv-965
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson

GARY MOHR, et al.,
Defendants.

REPORT AND RECOMMENDATION
On October 6, 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 October 11, 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. 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)). Plaintiff filed an objection to the
Court’s Order on October 24, 2016. Plaintiff’s objection was unclear, but it conveyed a belief
that 28 U.S.C. §1915(a)(2) was inapplicable to him, since he “is not a prisoner as defined by both
state and federal remedial law.” (Id. at 1).

On October 27, 2016, the Court confirmed that Plaintiff was, indeed, a “prisoner” as
defined in 28 U.S.C. § 1915. (Doc. 5). The Court also informed Plaintiff, once again, that in
order to proceed in forma pauperis, he had until November 11, 2016 to submit “a certified
account statement from the prison cashier that complies with 28 U.S.C. § 1915(a)(2).” (Id. at 2).
Plaintiff has failed to submit a certified copy of his trust fund account statement in accordance
with the Court’s October 27, 2016 Order. Accordingly, it is RECOMMENDED that Plaintiff’s
motion for leave to proceed in forma pauperis be denied (Doc. 1) and that this action be
DISMISSED for failure to prosecute and comply with the Court’s Orders.
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).

2

IT IS SO ORDERED.

Date: December 6, 2016

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

3