IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREGORY S. SMALL,

Plaintiff,

v. Civil Action 2:17-cv-737

Judge Algenon L. Marbley

Magistrate Judge Jolson

WALT HOLLEY, et al., 

Defendants.

REPORT AND RECOMMENDATION

On August 21, 2017, Plaintiff moved for leave to proceed in forma pauperis under 28 

U.S.C. § 1915(a). (Doc. 1). Plaintiff’s motion for leave did not include a certified copy of his 

trust fund account statement, which is required by 28 U.S.C. § 1915(a)(2). On August 28, 2017, 

the Court directed Plaintiff to submit to the Court within thirty days a certified copy of his trust 

fund account statement from the prison cashier in compliance with 28 U.S.C. § 1915(a)(2). 

(Doc. 2). The Court informed Plaintiff that his failure to follow the Court’s direction would 

require the Court to “presume that the prisoner is not a pauper, . . . assess the inmate the full 

amount of fees[,] . . . [and] then order the case dismissed for want of prosecution.” (Id. (quoting

In re Prison Litig. Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997)). 

Plaintiff filed an objection to the Court’s Order on September 6, 2017. (Doc. 3). 

Plaintiff’s objection was unclear, but seemed to convey a belief that the Court’s Order was 

“void” because “28 U.S.C. 1915(a)(1) is a special remedial federal statute,” and he is imprisoned 

for a violation of state law. (Id. at 1). In other words, Plaintiff appeared to argue that 

§ 28 U.S.C. 1915(a) did not apply to him.
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On September 7, 2017, the Court informed Plaintiff that § 28 U.S.C. 1915(a) applies to 

any prisoner filing an action in federal court, regardless of whether they are a state or federal 

inmate. (Doc. 4). Thus, the Court explained, once again, that a certified copy of Petitioner’s 

trust fund account statement was a statutory requirement that he must comply with. (Id. at 1–2). 

Plaintiff was also reminded that failure his failure to comply would result in this Court’s 

recommendation that he is not a pauper and that the action be dismissed for want of prosecution. 

(Id. at 2).

Plaintiff has failed to submit a certified copy of his trust fund account statement in 

accordance with the Court’s August 28, 2017 and September 6, 2017 Orders. Accordingly, it is 

RECOMMENDED that Plaintiff’s motion for leave to proceed in forma pauperis be denied 

(Doc. 1) and that this action be DISMISSED for failure to prosecute and comply with the 

Court’s Orders. 

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) 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).
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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).

IT IS SO ORDERED.

Date: October 2, 2017 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE