IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ricardo Jones, :

Plaintiff, :

v. : Case No. 2:13-cv-32

Warden Samuel Tambi, et al., : JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

Defendants. :

REPORT AND RECOMMENDATION

On January 30, 2013, the Court, noting that its records

appeared to reflect the fact that plaintiff had accumulated three

or more dismissals of prior cases under circumstances which

triggered the “three strikes” provision of the Prison Litigation

Reform Act, 28 U.S.C. §1915(g), directed plaintiff to show cause

why the full $350.00 filing fee should not be assessed. In

response, plaintiff argued that four of his prior cases, Cases

1:88-cv-389, 1:88-872, 1:88-cv-589, and 1:89-cv-281, were all

related and were consolidated for trial, so that they were not

dismissed in a way that would count as a “strike” under 1915(g). 

The Court’s records do not bear out plaintiff’s claim about

his prior cases. The Magistrate Judge’s Report and

Recommendation in Case No. 1:88-cv-589, Jones v. Couch,

recommended dismissal because the claim raised in that case, that

a corrections officer directed plaintiff and others not to make

noise on the officer’s shift, did not rise to the level of a

constitutional violation. The same Report and Recommendation

noted that the case was similar to, but not identical to, Case

No. 1:88-cv-389; that the prior case involved a claim that

corrections officers called plaintiff various names; and that

that case was also dismissed for failure to state a claim because

name-calling is not actionable under the Constitution. Judge

Rubin of this Court adopted the Report and Recommendation in Case

No. 1:88-cv-589, so both that case and Case No. 1:88-cv-389 were 

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dismissed for failure to state a claim upon which relief can be

granted - a triggering event for §1915(g) - and neither were

consolidated with any other case or tried to a jury.

The Court’s docket for Case No. 1:88-cv-872 also shows

something different from what plaintiff has represented. That

case was, according to the docket, never consolidated with any

other case. It was referred to Magistrate Judge Sherman, who

issued a Report and Recommendation on June 5, 1989, recommending

that the defendant’s motion to dismiss be granted. The docket

further shows that Judge Rubin adopted that recommendation and

dismissed the case. That would be the third “strike” under

§1915(g). Although not necessary to the Court’s analysis, it

appears that the fourth case to which plaintiff refers, Case No.

1:89-cv-281, was also never consolidated with any other case,

never tried, and dismissed by Judge Weber on motion of the

defendants, so that would be a fourth strike.

Plaintiff did file a case which went to trial. That was

Case No. 1:88-cv-973. The Court’s records show that it was tried

before a jury, with Judge Spiegel presiding, on July 16 and 17,

1989, and that the jury returned a defense verdict. There is

nothing on the docket sheet in that case which shows that any

other case was ever consolidated with the case for trial or other

purposes.

Plaintiff did not submit any documentation with his response

to the show cause order. In the absence of any contrary

evidence, this Court must conclude that its docket sheets, rather

than plaintiff’s unsupported statements about how the prior cases

were disposed of, are correct. That conclusion compels the Court

to find that plaintiff is, indeed, subject to §1915(g) and that

if he wishes this case to proceed, he must pay the full filing

fee.

It is therefore recommended that the motion for leave to

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proceed in forma pauperis (Doc. 1) be denied and that plaintiff

be directed to pay the full filing fee within thirty days. He

should also be advised that if he does not do so within thirty

days of any order adopting this Report and Recommendation, the

fee will be assessed and this case will be dismissed for failure

to prosecute. The later payment of the fee will not result in

the reopening of the case.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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