Martin v. Gardner et al, No. 2:2016cv00451 - Document 12 (S.D. Ohio 2016)

Court Description: OPINION and ORDER adopting 10 the Report and Recommendations. Signed by Judge Michael H. Watson on 10/21/16. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Martin v. Gardner et al Doc. 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Robert Martin, etal., Plaintiffs, V. Gardner, et aL, Case No. 2:16-cv-451 Judge Michael H. Watson Defendants. OPINION AND ORDER This prisoner civil rights case was transferred to this district on May 20, 2016. EOF No. 3. On June 2. 2016, Robert Martin ("PlaintifT) filed an amended complaint. Am. Compl., EOF No. 4. On June 16, Magistrate Judge Jolson, to whom this case is assigned, ordered Plaintiffto file a civil cover sheet and either pay the $400 filing fee or file the required affidavit of indigency within thirty days. Order, EOF No. 6. The Order warned Plaintiff that a failure to obey could result in the immediate assessment of the full filing fee and the dismissal of the action for want of prosecution. Id. On July 13,2016, Plaintiff filed a motion for leave to proceed in forma pauperls, Mot., EOF No. 8, but did not submit the required certified copy of his trust fund account statement for the six-month period immediately preceding the filing of the complaint. On August 4, 2016, Magistrate Judge Jolson issued a Report and Recommendation ("R&R") recommending that PlaintifTs application for leave to Dockets.Justia.com proceed in forma pauperis be denied and that his complaint be dismissed without prejudice for failure to prosecute. R&R, ECF No. 10. Under Federal Rule of Civil Procedure 72(b), "a party may serve and file specific written objections to the proposed findings and recommendations" in an R&R. Fed. R. Civ, P. 72(b)(2). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). Plaintiff objects to the R&R, ECF No. 11, arguing that he filed an affidavit of indlgency that was accepted by the Supreme Court of Ohio in an unrelated case. He argues that res judlcata bars this Court from rejecting a similar affidavit of indlgency in this case. Specifically, he contends that the issue of his indlgency has already been adjudicated in his favor, and he should not have to re-litigate it in federal court. Plaintiffs objection is overruled. First, the exhibit he attaches from the Supreme Court of Ohio does not show that his affidavit of indlgency was accepted and that fees were waived. Ex. A, ECF No. 9-1. Exhibit A is merely a two sentence entry in a Supreme Court of Ohio case that dismisses, sua sponte, a habeas corpus petition Plaintiff had filed. It nowhere mentions fees or Plaintiffs application to proceed in forma pauperis. Case No. 2:16-cv-451 Page 2 of 4 More importantly, however, res judicata does not apply In this circumstance. For one, neither this Court nor the defendants In this case were parties to, or In privity with a party to, the prior proceeding. Plaintiff next argues that the affidavit he submitted In this case Is sufficient under Walton v. Wheatly Co., No. 92—3379, 986 F.2d 1423 (6th CIr. 1993), because his affidavit compiled with 28 U.S.C. § 1746. PlalntlfTs argument misses the point. The R&R did not recommend dismissal because his affidavit was Inadequate; It recommended dismissal because Plaintiff failed to file the required certified copy of his trust fund account. Section 1915 requires the certified copy of the trust fund account statement in addition to an adequate affidavit. 28 U.S.C. § 1915(a)(2). Likewise, PlalntlfTs argument that he meets the standard of Indlgency under the Ohio Administrative Code and thus Is entitled to appointment of counsel Is Inapposite for many reasons, one of which Is that the Ohio Administrate Code does not apply In these federal proceedings. Plaintifffurther argues that this case was referred to the magistrate judge In violation of 28 U.S.C. § 636(c)(1) and (c)(2) and Federal Rule of Civil Procedure 73 because he did not consent to disposition of this case by the magistrate judge. PlalntlfTs objection Is again overruled as this case was not referred to the magistrate judge under § 636(c) or Rule 73 but was rather referred under § 636(b) and Rule 72 for a recommendation only. Case No. 2:16-cv-451 Page 3 of 4 Plaintiffs continued argument that the requirement of a certified cashier statement is against the law is also meritless. The Court has reviewed the R&R on this matter and finds that it correctly sets forth the law. To the extent Plaintiff attempts to raise new arguments as to the legality of the requirement (that it violates the Financial Privacy Act and the E-Government Act of 2002), the Court will not consider those arguments as they are raised for the first time in an objection to the R&R. Ward v. United States, No. 98-1872, 208 F.3d 216, at *1 (6th Cir. 2000) ("a claim raised for the first time in objections to a magistrate judge's report is deemed waived.") (citation omitted). Accordingly, Plaintiffs objections, ECF No. 11, are OVERRULED, the R&R. ECF No. 10, is ADOPTED, and Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE for failure to prosecute. The Clerk shall terminate this case. IT IS SO ORDERED. IICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:16-cv-451 Page 4 of 4

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