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Sinkovitz v. Cook

United States District Court, S.D. Ohio, Eastern Division

March 28, 2018

PAUL SINKOVITZ, Plaintiff,
v.
BRYAN COOK, WARDEN, et al., Defendants.

          Judge, George C. Smith

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Sinkovitz, a state inmate who is proceeding without the assistance of counsel, brings this action against the Warden of the Lancaster Correctional Facility and the Ohio Department of Rehabilitation and Correction (“ODRC”), alleging that the prison's refusal to provide him with certain tax forms and also the marking of his outgoing mail with the word “inmate” violate his constitutional rights. This matter is before the Court for the initial screen of Plaintiff's Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff's Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted.

         I.

         Although Plaintiff's Complaint lacks clarity, in his first claim, he appears to challenge the prison's refusal to provide him with certain forms he maintains he needs to file his taxes. The body of Plaintiff's Complaint lacks specificity, stating only that he is “being denied his right to the forms provided by the federal government to file his tax returns.” (Pl.'s Compl. 1, ECF No. 1.) Some of the informal grievances Plaintiff attaches to his Complaint, however, provide additional insight. In the January 2018 informal grievances Plaintiff sent to Warden Cook, he twice requests a “W-2 form, ” (ECF No. 1-1 at 7, 9), and once complains that ODRC's policy set forth in 75-MAL-01(H) to deny the issuance of “IRS Form 1090 . . . does not address the legal right of filing a Federal Tax Return, ” (id. at 11). As relevant to this claim, Plaintiff also attaches a copy of ODRC Policy Number 75-MAL-01, showing an effective date of November 2016, as well as a document Plaintiff has captioned “Memorandum of Support Supremacy Clause Art. VI of U.S. Constitution, ” in which he references his “bid to claim [his] right to the funds available made certain by the fulfilment of contract between the government of these United States in service of the U.S. Navy for a term of 22 years.” (Id. at 2.)

         In his second claim, Plaintiff challenges “the marking of private mail with the words ‘inmate, ' arguing that “the mail service is of the federal government and not of the state.” (Pl.'s Compl. 1, ECF No. 1.)

         II.

         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)[1], which provides in pertinent part as follows:

(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. Thus, § 1915(e) requires suasponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action ...


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