Edwards v. Dayton Veterans Medical Center et al

Filing 17

REPORT AND RECOMMENDATIONS REGARDING APPEAL IN FORMA PAUPERIS - Since the case was dismissed without prejudice, he is not barred by res judicata from refiling it. The Court should deny leave to appeal in forma pauperis and certify to the Court of Ap peals that the appeal, which has already been taken, is objectively frivolous. Objections to R&R due by 4/27/2015. Signed by Magistrate Judge Michael R Merz on 4/10/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
DRAKE A. EDWARDS,
Plaintiff,

-

vs

:

Case No. 3:14-cv-374

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-

DAYTON VETERANS MEDICAL CENTER,

Defendant.

:

REPORT AND RECOMMENDATIONS REGARDING APPEAL IN
FORMA PAUPERIS

This case is before the Court on Plaintiff’s Motion to Proceed on Appeal in forma pauperis (Doc.
No. 15). The case was dismissed without prejudice because Plaintiff failed, despite notice, to
achieve service of process on the Defendant within 120 days of filing. When the Magistrate
Judge recommended dismissal on that basis, Plaintiff responded with Objections mentioning
writs of execution under the Ohio Revised Code.

Since the case was dismissed without

prejudice, he is not barred by res judicata from refiling it. But an appeal is objectively
frivolous. The Court notes that this is one of sixteen cases filed by Plaintiff in the last fifteen
years, none of which has resulted in an award.

1

The Court should deny leave to appeal in forma pauperis and certify to the Court of
Appeals that the appeal, which has already been taken, is objectively frivolous.

April 10, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

2