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Henry N. Harper v. Lindsey K. Donehue

November 18, 2011

HENRY N. HARPER, PLAINTIFF,
v.
LINDSEY K. DONEHUE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge E.A. Preston Deavers

Judge Peter C. Economus

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Henry Harper's Motion for Leave to Proceed in forma pauperis is GRANTED. (ECF No. 1.) Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff's application, however, reveals that he currently possesses insufficient funds to pay the full filing fee.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust account (Inmate A638859) at the Chillicothe Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:

Prisoner Accounts Receivable 260 U.S. Courthouse 85 Marconi Boulevard Columbus, Ohio 43215 The prisoner's name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.

This matter is also before the Court for an initial screen of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff, a pro se prisoner, attempts to bring this action against the trial attorney who represented him in his criminal case for constitutional violations, negligence, and malpractice. For the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff's purported federal causes of action for failure to state a claim. Additionally, it is RECOMMENDED that the Court DECLINE to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and that the Court DISMISS these claims pursuant to 28 U.S.C. § 1367(c)(3) without prejudice.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to "lower judicial access barriers to the indigent." Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, "Congress recognized that 'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)*fn1 as part of the statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

(B) the action or appeal--(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A (requiring the Court to screen a prisoner's complaint "as soon as practicable" and dismiss any portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e) and § 1915A require sua sponte dismissal of an action upon the Court's determination that the action is frivolous ...


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