Stewart v. Wiedman et al

Filing 5

REPORT AND RECOMMENDATION: It is RECOMMENDED that Plaintiff be ASSESSED the full filing fee of $402.00. It is further RECOMMENDED that this action be DISMISSED without prejudice. (The following document(s) were not submitted to the Office of th e Clerk: Completed Summons forms and US Marshal Forms) filed by Jerry R. Stewart, Jr., 4 Complaint filed by Jerry R. Stewart, Jr. Objections to R&R due by 7/28/2021. Signed by Magistrate Judge Elizabeth Preston Deavers on July 14, 2021. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JERRY R. STEWART, JR,
Plaintiff,
Civil Action 2:21-cv-1876
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.
MATTHEW WIEDMAN, et al.,
Defendants.

REPORT AND RECOMMENDATION
On April 16, 2021, Plaintiff filed a purported motion for leave to proceed in forma
pauperis. (ECF No. 1.) The document was missing pages but the Certificate page indicated that
Plaintiff was incarcerated in the Fayette County Jail. (Id.) On April 21, 2021, the Clerk’s office
issued a Deficiency Notice to Plaintiff advising him that his filing did not comply with 28 U.S.C.
§ 1915 because the motion was not accompanied by a copy of his trust fund account statement.
(ECF No. 2.) The Notice directed Plaintiff to cure the deficiency within 30 days. (Id.) When
Plaintiff did not, the Court issued an Order and Deficiency Notice on June 2, 2021, directing
Plaintiff to file a Motion and to provide a copy of Plaintiff’s prison trust fund account statement
from his institution(s) of incarceration showing at least the past six months' transactions. (ECF
No. 3.) The Court cautioned Plaintiff that his failure to do so would result in dismissal of this
action for failure to prosecute. (Id.) The Court’s docket does not reflect that the mailings to
Plaintiff were returned.

“When a prisoner files a complaint in the district court, the inmate must either pay the
entire filing fee, or request leave to proceed in forma pauperis ‘without prepayment of fees or
security therefor’ under 28 U.S.C. § 1915(a)(1).” In re Prison Litig. Reform Act, 105 F.3d at
1131 (citing 28 U.S.C. § 1915(a) (1). “Submission of an sufficient affidavit and a certified trust
fund account in accordance with [§ 1915(a)(2) ] are statutory requirements for proceeding in
forma pauperis.” McCullough v. Fed. Bureau of Prisons, No. 13–10282, 2013 WL 2147001, at
*1 (E.D. Mich. May 16, 2013) (citing McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir.
1997) (overruled on other grounds)). The United States Court of Appeals for the Sixth Circuit
describes the Court’s responsibility when an individual has failed to pay the filing fee or submit
the required forms as follows:
If an inmate not paying the full filing fee fails to provide an affidavit of indigency
or trust account statement, the district court shall notify the prisoner of the
deficiency and the prisoner shall have thirty (30) days from the date of the
deficiency order to correct the error or pay the full filing fee. If the prisoner does
not comply with the district court’s directions, the district court shall presume that
the prisoner is not a pauper, and assess the inmate the full amount of fees. The
district court must then order the case dismissed for want of prosecution.
In re Prison Litig. Reform Act, 105 F.3d at 1132.
To date, Plaintiff has failed to respond to the Court’s Order. This matter is, therefore,
before the Court for consideration of Plaintiff’s failure to comply with its Order and failure to
prosecute. For the reasons set forth above, it is RECOMMENDED that Plaintiff be
ASSESSED the full filing fee of $402.00. It is further RECOMMENDED that this action be
DISMISSED without prejudice.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: July 14, 2021

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

3