Thomas v. Smith

Full title: Lewis Thomas, III, Plaintiff, v. Karen Smith, et. al., Defendants

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

Date published: Dec 1, 2008

Case No. 2:08-cv-938 (S.D. Ohio Dec. 1, 2008)

Opinion

Case No. 2:08-cv-938.

December 1, 2008

OPINION AND ORDER

TERENCE KEMP, Magistrate Judge

This matter comes before the Court on the request of plaintiff Lewis Thomas, III to combine or merge his fee payment in Case No. 2:06-cv-672 with his fee payment in Case No. 2:08-cv-938. For the following reasons, the Court will deny the plaintiff's request.

I.

The plaintiff, Mr. Thomas, requests that he be allowed to make one fee payment of $10.86 to meet his obligation pursuant to 28 U.S.C. 1915(b)(2). That statute states that, "[a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account." The statute does not explicitly state whether the fee is to be applied on a "per case" or "per prisoner" basis. Neither the Sixth Circuit nor the Southern District of Ohio has ruled on this question; however, two courts within the Sixth Circuit have applied the "per case" rule. Suggs v. Caballero, Civil Action No. 06-13931, 2007 WL 541909 (E.D. Mich. Feb. 16, 2007); Lyon v. Kentucky State Penitentiary, 2005 WL 2044955 (W.D. Ky. Aug. 23, 2005). The Fifth, Seventh, and Eighth Circuits have also held that the "per case" rule is the proper interpretation. See Atchison v. Collins, 288 F.3d 177 (5^th Cir. 2002); Newlin v. Helman, 123 F.3d 429, 436 (7^th Cir. 1997) ( overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7^th Cir. 2000) and Walker v. O'Brien, 216 F.3d 626 (7^th Cir. 2000)); Lefkowitz v. Citi-EquityGroup, Inc., 146 F.3d 609 (8^th Cir. 1998). In Suggs, the district court adopted the Seventh Circuit's reasoning that, under a "per prisoner" rule, "a prisoner could file multiple suits for the price of one, postponing payment of the fees for later-filed suits until after the end of imprisonment (and likely avoiding them altogether)." Newlin, 123 F.3d at 436. This Court agrees with the analysis in the above cases and concludes that the fees are to be applied on a "per case" basis and not a "per prisoner" basis.

II.

Based on the foregoing, the plaintiff's request (#7) is DENIED.

Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.