Sayre v. Thompson

Filing 6

MEMORANDUM OPINION AND ORDER directing that Plaintiff's 5 OBJECTIONS are OVERRULLED; the Court ADOPTS the 4 Proposed Findings and Recommendations by Magistrate Judge, and DENYS Plaintiff's 1 Application to Proceed without Prepayment of Fees or Costs; further directing Plaintiff to pay the $350 filing fee within ten days of entry of this order; if Plaintiff fails to pay the filing fee, the Court will dismiss this action with prejudice. Signed by Judge Thomas E. Johnston on 12/20/2011. (cc: attys; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

KENNY DREW SAYRE,
Plaintiff,
v.

CIVIL ACTION NO. 2:10-cv-00157

ATTORNEY JACK THOMPSON,
Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Kenny Drew Sayre’s Complaint [Docket 2]. By Standing Order
entered August 1, 2006, and filed in this case on February 18, 2010, this action was referred to
United States Magistrate Judge Mary E. Stanley for submission of proposed findings and a
recommendation (PF&R). Magistrate Judge Stanley filed her PF&R [Docket 4] on March 24, 2010,
recommending that this Court deny Plaintiff’s Application to Proceed In Forma Pauperis, give
Plaintiff ten days to pay the $350 filing fee, and, if Plaintiff fails to do so, dismiss this action with
prejudice. Plaintiff timely filed objections to the PF&R on April 8, 2010, and the matter is now ripe
for the Court’s consideration.
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a party “makes general and conclusory objections

that do not direct the Court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Plaintiffs objections are the type of vague and conclusory objections contemplated by
Opriano that do not merit review by this Court. Additionally, the objections do not address the
issues discussed in the PF&R. Therefore, Plaintiff’s objections [Docket 5] are OVERRULED.
As stated in the PF&R, a prisoner is prohibited from bringing a civil action without
prepayment of fees when:
[T]he prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it was frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. §1915(g). Plaintiff has exceeded the limit of § 1915(g), thus prohibiting him from
proceeding without prepayment of fees. At least three of Plaintiff’s cases were dismissed as either
frivolous, malicious, or for failing to state a claim upon which relief may be granted. Sayre v. Mount
Olive Corr. Complex, No. 5:01-cv-434 (S.D. W. Va. Oct 17, 2001); Sayre v. Painter, No. 5:00-cv-99
(S.D. W. Va March 30, 2000); Sayre v. Painter, No. 5:99-cv-748 (S.D. W. Va. Dec. 30, 1999).
Further, in Sayre v. Mount Olive Corr. Complex, Judge Faber found that Plaintiff’s action was the
third action to be dismissed as frivolous, malicious, or for failing to state a claim upon which relief
can be granted. Accordingly, cases that Plaintiff filed after Sayre v. Mount Olive Corr. Complex
were dismissed where he was not under imminent danger of serious physical injury pursuant to
§1915(g). As Plaintiff has long been prohibited from filing without prepayment of fees and Plaintiff
is not currently under imminent danger of serious physical injury, the Court must require him to pay
the filing fee before going forward in the instant matter.

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Therefore, the Court ADOPTS the PF&R [Docket 4] and DENIES Plaintiff’s Application
to Proceed In Forma Pauperis [Docket 1]. The Court ORDERS Plaintiff to pay the $350 filing fee
within ten days of entry of this order. If Plaintiff fails to pay the filing fee, the Court will dismiss
this action with prejudice.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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December 20, 2011