United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM Magistrate Judge King
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge
a state prisoner, brought this civil rights action under 42
U.S.C. § 1983, complaining of alleged misconduct on the
part of the defendant prosecutors and other alleged
deficiencies in connection with his state criminal trial.
Final judgment dismissing the action was entered following
the initial screen of the Complaint, ECF No. 1.
Order, ECF No. 7; Judgment, ECF No. 8. That
judgment was affirmed by the United States Court of Appeals
for the Sixth Circuit. Sevilla v. O'Brien, No.
16-3006 (6th Cir. May 24, 2016). The United States
Supreme Court denied Plaintiff's petition for a writ of
certiorari. Sevilla v. O'Brien, No. 16-5548
(Sup. Ct., Oct. 11, 2016). This matter is now before the
Court on Plaintiff's Motion for Leave to Vacate Court
Cost pursuant to Fed.R.Civ.P. 60(B), ECF No. 20
was granted leave to proceed in forma pauperis at
the outset of the case. Order, ECF No. 4. Consistent
with that Order and with the express provisions of
28 U.S.C. § 1915(b)(2), however, partial payments of the
full filing fee have been deducted from Plaintiff's
prison account since that time. Plaintiff's
Motion asks that this Court direct that further
deductions not be made. He contends that these deductions
from his “meager state allowance create an
unnecessary financial burden on him, ” id. at
PageID# 120; he represents that he is willing to perform
“community service” in the prison in lieu of such
payments. Id. at PageID# 119.
Court is without authority to waive payment by plaintiff of
the full filing fee in this action. The United States Court
of Appeals for the Sixth Circuit has addressed this issue:
In the Prisoner Litigation Reform Act of 1995 (the
“PLRA”), Congress amended 28 U.S.C. § 1915
by adding language requiring all prisoner litigants to pay
the full filing fees for civil actions and appeals. The
intent of the amendment was to deter frivolous and vexatious
prisoner litigation by exposing prisoners to the same
financial risks and considerations faced by other litigants.
See Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997);
Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.1996).
This court noted the result of that amendment:
Pauper status for inmates, as we previously knew it, no
longer exists. While incarcerated, all prisoners must now pay
the required filing fees and costs.... Prisoners are no
longer entitled to a waiver of fees and costs.
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th
Cir.1997). Congress understood that many prisoners would not
be able to pay the full filing fees immediately. It therefore
provided that prisoners (who would have been eligible for a
complete or partial waiver of fees prior to 1995) would now
be assessed an initial filing fee with a requirement that the
full fee be paid by means of future periodic deductions from
their prison accounts. See 28 U.S.C. § 1915(b).
. . .
In McGore, supra, this court also held that the
obligation to pay the full filing fee under § 1915(b)
arises at the time a civil complaint is filed and that the
subsequent dismissal of the action, even if voluntary, does
not negate that obligation. 114 F.3d at 607.
In re Alea, 286 F.3d 378, 380-81 (6th Cir.
therefore RECOMMENDED that
Plaintiff's Motion for Leave to Vacate Court
Cost pursuant to Fed.R.Civ.P. 60(B), ECF No. 20, be
party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14)
days, file and serve on all parties objections to the
Report and Recommendation, specifically designating
this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Response to
objections must be filed within fourteen (14) days after
being served with a copy thereof. Fed.R.Civ.P. 72(b).
parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of
the right to de novo review by the District Judge
and waiver of the right to appeal the judgment of the
District Court. See, e.g., Pfahler v.
Nat'l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir.
2007) (holding that “failure to object to the
magistrate judge's recommendations constituted a waiver
of [the defendant's] ability to appeal the district
court's ruling”); United States v.
Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court's denial
of pretrial motion by failing to timely object to magistrate
judge's report and recommendation). Even when timely
objections are filed, appellate review of issues not raised
in those objections is waived. Robert v. Tesson, 507
F.3d 981, 994 (6th Cir. 2007) (“[A] general objection
to a magistrate judge's report, which fails to specify
the issues of contention, does not suffice to preserve an
issue for appeal . . . .”) (citation omitted)). ...