Magistrate Judge Kemp
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Robert Martin, a state prisoner who resides at the Hocking Correctional Facility, submitted his complaint in this case on October 8, 2015. His complaint was accompanied by a motion for leave to proceed in forma pauperis. As has become customary with Mr. Martin's motions for leave to proceed in forma pauperis, that motion was not accompanied by the required trust fund statement from his institution. Once again, as explained below, the Court will not direct Mr. Martin to provide a trust fund statement in order to allow the Court to consider whether to assess a partial filing fee based on that statement.
This Court recently pointed out in denying Mr. Martin's motion for leave to proceed in forma pauperis in Martin v. Ohio Department of Rehabilitation and Corrections, Case No. 2:15-cv-2872, that Mr. Martin has had three or more cases or appeals dismissed in the past as frivolous or for failure to state a claim on which relief can be granted. See Martin v. Aramark Food Corp., Case No. 2:15-cv-1112 (S.D. Ohio); Martin v. Harlan, Case No. 2:14-cv-1553 (S.D. Ohio); Martin v. Woods, Case No. 2:12-cv-341 (S.D. Ohio), citing Martin v. Welch, Case No. 2:10-cv-736 (S.D. Ohio); Martin v. Ohio Supreme Court, Case No. 2:04-cv-613 (S.D. Ohio); Martin v. Mrs. Lowery, Case No. 2:04-cv-641 (S.D. Ohio).
Under that portion of the Prison Litigation Reform Act codified at 28 U.S.C. §1915(g), the so-called "three strikes" rule, a prisoner may not bring a suit in forma pauperis if that prisoner "has, on 3 or more 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 ground that it is 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." Thus, he is not entitled to proceed in forma pauperis and to pay the filing fee in installments unless he can demonstrate that he meets the "imminent danger" requirement of §1915(g). Otherwise, he must pay the entire filing fee (currently $400.00 for prisoners not granted in forma pauperis status) at the outset of the case.
Consistent with several recent cases, Mr. Martin does not address the issue of imminent danger in his complaint. Rather, the issues raised by his complaint appear to be strictly financial in nature. For example, Mr. Martin contends that he did not receive $1304.00 upon his release from prison in 1982. He asserts that, under the Earned Compensation Program, he was entitled to earned compensation in the amount of $1152.00 and interest at the rate of 10%. Further, he claims that filing fees totaling $337.75 for his various state cases have been arbitrarily and illegally seized from him without due process. He also contends he is entitled to restitution in the amount of $282.94 for filing fee payments in his federal cases made by the prison cashier without his consent.
These allegations in no way suggest any issue of imminent danger. For this reason, it is recommended that the motion for leave to proceed in forma pauperis (Doc. 1) be denied, and that Mr. Martin be directed to submit the entire $400.00 filing fee within thirty days if he wishes to proceed with this action. If that recommendation is accepted, he should also be advised that if he does not pay the fee, the action will be dismissed and will not be reinstated even upon subsequent payment of the filing fee. See McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir. 1997).
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).
/s/ Terence P. Kemp
United States Magistrate Judge