Davis v. Lincoln Crawford Care Center

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI ANTHONY DAVIS, : Case No. 1:24-cv-00433 Plaintiff, Judge Matthew W. McFarland

é LINCOLN CRAWFORD CARE CENTER, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 11)

This action is before the Court on Magistrate Judge Stephanie K. Bowman’s Report and Recommendation (Doc. 11). The Magistrate Judge recommended that Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. 10) should be denied. Plaintiff filed Objections (Doc. 12), making the matter ripe for the Court’s review. Plaintiff's objections argue that he should be allowed to amend his complaint to include his EEOC right-to-sue letter, an argument he had made in response to the Magistrate Judge’s previous Report & Recommendation (Doc. 4), which this Court adopted (Doc. 6). As part of his argument, Plaintiff alleges that, even though the letter was mailed on May 20, 2024, he did not know about the letter’s existence until September 24, 2024. (Objections, Doc. 12, Pg. ID 60). He states that, while he first had given the EEOC an P.O. Box address, he then attained a residential address; his letter, though, had been sent to the P.O. Box. (Id.) This objection, however, does not confront the issue addressed

in the Report, which is whether to grant Plaintiff leave to file his appeal in forma pauperis. On this issue, Plaintiff fails to identify anything specific he believes may be incorrect in the Magistrate Judge’s findings. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). His objections are, in effect, restatements of prior arguments and amount to a failure to object. Bradley v. United States, No. 18-1444, 2018 WL 5084806, at *3 (6th Cir. Sept. 17, 2018); Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001). Furthermore, this Court, in its first Order Adopting Report and Recommendation (Doc. 6), certified that an appeal of its decision would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3). And, an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. Fed. R. App. P 24(a). Asa result, granting Plaintiff's Motion would be improper. As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the Court has made a de novo review of the record in this case. Upon such review, the Court finds that Plaintiff's Objections (Doc. 12) are not well-taken and are accordingly OVERRULED. The Court ADOPTS the Report and Recommendations (Doc. 11) in its entirety and Plaintiffs Motion for Leave to Appeal in forma pauperis (Doc. 10) is DENIED. Plaintiff MAY FILE, within thirty (30) days of this Order, a motion with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal; such motion must include a copy of the affidavit filed with this Court and this Court's statement as to the reasons for denying pauper status on appeal. IT IS SO ORDERED.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO Woh Wels By: JUDGE MATTHEW W. McFARLAND