Martin v. Zariwala et al, No. 2:2018cv00270 - Document 16 (S.D. Ohio 2019)

Court Description: OPINION and ORDER adopting 15 the Report and Recommendation; denying without prejudice 13 Defendant's Motion to Dismiss. Signed by Judge Michael H. Watson on 4/26/19. (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. Zariwala et al Doc. 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION William E. Martin, Plaintiff, V. Zamvir Zarlwala, Defendants. Case No. 2:18-cv-270 Judge Michael H. Watson Chief Magistrate Judge Deavers OPINION AND ORDER William E. Martin ("Plaintir) filed this action on March 27, 2018, and moved to proceed in forma pauperis. Mot., EOF No. 1. The Magistrate Judge issued a Report and Recommendation ("R&R") recommending that the Court dismiss most of PlaintifTs claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A but permit Plaintiff to proceed with his claims against Zamir Zariwala ("Defendant"). R&R, EOF No. 3. The Court adopted the R&R on October 4, 2019. ECF No. 9. Thereafter, Defendant moved to dismiss Plaintiffs Complaint on the basis that Plaintiff has had three prisoner civil rights cases dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim ("three strikes"). Mot. to Dismiss, ECF No. 13. Plaintiff opposed Defendant's motion. Resp., ECF No. 14. On April 2,2019, the Magistrate Judge issued a R&R recommending that Defendant's motion to dismiss be denied without prejudice because Plaintiffs Dockets.Justia.com three strikes do not require outright dismissal of the lawsuit. R&R 5-6, ECF No. 15. instead, the Magistrate Judge recommended that: PiaintifTs in forma pauperis status be revokedQ; that Plaintiff be required to pay the entire $400 fee required to commence this action ($350 filing fee plus $50 administrative fee) within thirty (30) days of an Order adopting this Report and Recommendation; and that Plaintiff be notified that his failure to pay the full fee within thirty (30) days will result in the dismissal of the action. R&R 6-7, ECF No. 15. The R&R also recommended that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the reasons provided in the R&R, any appeal of the Order adopting the R&R would not be taken in good faith and to therefore deny Plaintiff leave to appeal in forma pauperis. Id. at 7. Finally, the R&R notified the parties of their right to file objections to the R&R pursuant to 28 U.S.C. § 636(b)(1). Id. The R&R advised the parties that the failure to object to the R&R within fourteen days would result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the decision of the District Court adopting the R&R. Id. The deadline for filing such objections has passed, and no objections were filed. Having received no objections, the R&R is ADOPTED. Defendant's motion to dismiss is DENIED WITHOUT PREJUDICE. ECF No. 13. PiaintifTs in forma pauperis status is hereby REVOKED. Case No. 2:18-cv-270 Page 2 of 3 Accordingly, Plaintiff is ORDERED to pay the entire $400 fee required to commence this action ($350 filing fee plus $50 administrative fee) within thirty (30) days of this Order. Plaintiff is warned that his failure to pay the full filing fee within thirty (30) days will result in the dismissal of the action. Finaiiy, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the reasons provided in the R&R, any appeal of the Order adopting the R&R would not be taken in good faith and therefore DENIES Plaintiff leave to appeal in forma pauperis. IT IS SO ORDERED. IICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:18-cv-270 Page 3 of 3

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