Opinion
2:01-CV-0204.
July 19, 2001.
REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PAY FILING FEE
On May 24, 2001, petitioner MARCUS CHANCE filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner appears to challenge a prison disciplinary proceeding conducted at the William P. Clements Unit in Amarillo, Texas.
Petitioner did not submit with his habeas petition an Application to Proceed In Forma Pauperis, nor has petitioner submitted any payment to satisfy the requisite filing fee. On June 15, 2001, this Court entered its Order granting petitioner permission to proceed in forma paperis temporarily, pending either payment of the $5.00 filing fee or submission of an Application to Proceed In Forma Pauperis and a current certified in forma pauperis data sheet from the institution in which he is incarcerated. Petitioner was given twenty (20) days from the date of the Court's Order in which to properly supplement or pay the filing fee.
As of this date, petitioner has failed to comply with the Court's Order by either payment of the $5.00 filing fee or through supplementation to his petition. The Court is unable to determine whether petitioner qualifies for a grant of pauper's status. Because of petitioner's failure to comply with a direct order from the Court, as well as his failure to prosecute his application, it is the opinion of the undersigned that petitioner has neglected his case to such an extent that it warrants dismissal.
RECOMMENDATION
It is the RECOMMENDATION of the Magistrate Judge that the habeas application filed by petitioner MARCUS CHANCE be DISMISSED for failure to pay the $5.00 filing fee.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party who wishes to object to this Report and Recommendation must do so within fourteen (14) days following the filing date indicated hereon. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
If petitioner pays the $5.00 filing fee within fourteen (14) days after the filing date of this Report and Recommendation, or submits proper documentation evidencing the authorization of the disbursement of the requisite funds, the recommendation of dismissal will be withdrawn. Petitioner is advised, however, that the payment of the filing fee will not guarantee that this Court will reach the merits of petitioner's application, or that the petition will continue past the initial screening process.
IT IS SO RECOMMENDED.