Opinion
Civil Action 2:12-cv-850
10-15-2012
ROBERT L. HILLMAN, Plaintiff, v. WILLIAM JOSEPH EDWARDS et al. , Defendants.
Judge Frost
Magistrate Judge King
OPINION AND ORDER
Plaintiff, a state inmate, sought to initiate this action without prepayment of fees or costs. On September 21, 2012, the Magistrate Judge issued a Report and Recommendation,Doc. No. 2, recommending that plaintiff's application for leave to proceed in forma pauperis be denied. Specifically, the Magistrate Judge concluded that plaintiff was prohibited from proceeding in forma pauperis under 28 U.S.C. § 1915(g) (also known as the "3-Strikes Provision"). Plaintiff has filed timely objections, Doc. No. 4, and a motion to supplement the objections because of an inadvertent failure to attach an exhibit mentioned in the objections. Doc. No. 5. Plaintiff's motion to supplement the objections, Doc. No. 5, is GRANTED. For the reasons that follow, plaintiff's objections are OVERRULED. The Report and Recommendation, Doc. No. 2, is ADOPTED and AFFIRMED.
The Prison Litigation Reform Act ["PLRA"] prohibits the grant of leave to proceed in forma pauperis under certain circumstances:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if28 U.S.C. § 1915(g). The Magistrate Judge concluded that plaintiff "has, on at least 3 occasions, brought an action in this Court that was dismissed for failure to state a claim upon which relief can be granted. Hillman v. Simms, 2:09-cv-810 (S.D. Ohio December 3, 2009); Hillman v. Simms, et al.,2:08-cv-717 (S.D. Ohio March 11, 2009); Muff, et al. v. Collins, 2:08-cv-1[0]27 (S.D. Ohio January 29, 2009)." Report and Recommendation, pp. 1-2.
the 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 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.
Plaintiff objects to the Report and Recommendation on the basis that Muff v. Collins, 2:08-cv-1027 (S.D. Ohio January 29, 2009), cannot be his "third strike" for purposes of 28 U.S.C. § 1915(g).Plaintiff argues that there is "nothing in the records of the Court that (Hillman) Plaintiff consented to inmate Muff using his name in said legal proceeding, or any request made by (Hillman) Plaintiff in the proceeding." Doc. No. 4, p. 6. To the contrary, plaintiff was a named plaintiff in Muff v. Collins, 2:08-cv-1027 (S.D. Ohio January 29, 2009), and the Complaint in that case, Doc. No. 4, bears plaintiff's signature. Id. at 9, 11. That civil action was also dismissed for failure to state a claim upon which relief may be granted. See Muff v. Collins, No. 2:08-cv-1027, 2009 WL 233561, at *3 (S.D. Ohio Jan. 29, 2009). Accordingly, Muff v. Collins,2:08-cv-1027 (S.D. Ohio January 29, 2009), is the third action brought by plaintiff in this Court during his incarceration that was dismissed for failure to state a claim upon which relief can be granted. Plaintiff is therefore prohibited under 28 U.S.C. § 1915(g) from proceeding in forma pauperis in this action.
Plaintiff also objects on the basis that Hillman v. Simms, et al., 2:08-cv-1089; Hillman v. Edwards, 2:11-cv-501; and Hillman v. O'Brien, et al., 2:11-cv-607, should not be counted against him for purposes of the 3 Strike Rule. The Magistrate Judge did not, however, count any of these cases against plaintiff for purposes of the 3 Strike Rule. See Report and Recommendation, p. 2 n.1.
Plaintiff does not object to the Magistrate Judge's conclusion that Hillman v. Simms, 2:09-cv-810 (S.D. Ohio December 3, 2009), and Hillman v. Simms, et al.,2:08-cv-717 (S.D. Ohio March 11, 2009), count against him for purposes of 28 U.S.C. § 1915(g). Plaintiff also does not object to the conclusion that the claims sought to be asserted in this action do not suggest that he is under imminent danger of serious physical injury.
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Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of the Report and Recommendation. This Court has carefully considered the entire record. For the foregoing reasons and for reasons detailed in the Magistrate Judge's Report and Recommendation, plaintiff's objections, Doc. No. 4, are OVERRULED. The Report and Recommendation, Doc. No. 2, is ADOPTED and AFFIRMED. Plaintiff's motion for leave to proceed in forma pauperis, Doc. No. 1, is DENIED.
If plaintiff intends to pursue this action, he must pay the full $350.00 filing fee within thirty (30) days. His failure to do so will result in the dismissal of the action for failure to prosecute.
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Gregory L. Frost
United States District Judge