Opinion
Case No. CIV-19-540-C
06-27-2019
ROBERT ALLEN CUSTARD, Petitioner, v. JOSEPH ALLBAUGH, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2241, [Doc. No. 1], and United States District Judge Robin J. Cauthron referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). At issue is Petitioner's application for leave to proceed in forma pauperis, [Doc. No. 5].
Petitioner's attached financial documents show a balance of $28.15 in his savings account. See id. at 5. Petitioner labels this money "non-spendable," id.; however, in Oklahoma, inmates may use their institutional savings accounts to pay court filing fees. See Okla. Stat. tit. 57, § 549(5) ("Funds from [an inmate's savings] account may be used by the inmate for fees or costs in filing a civil or criminal action . . . ."); see also Todd v. Attorney General of Oklahoma, 377 F. App'x 832, 834 (10th Cir. 2010) (affirming the district court's IFP denial where the inmate had sufficient funds in his savings account and "under Oklahoma law . . . these funds may be used to pay the costs of federal filing fees"). Thus, the Court finds that Petitioner is financially able to prepay the $5.00 filing fee of this proceeding. Because Petitioner has not shown that he qualifies for authorization to proceed without prepayment of the filing fee, it is recommended that Petitioner's application be denied. See 28 U.S.C. § 1915(a)(1); see also Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Petitioner's application is missing any information regarding his institutional prison account. However, the Court declines to order Petitioner to cure the application as it can be denied based on the financial information that is included.
It is further recommended that if Petitioner does not pay the $5.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling, pursuant to LCvR 3.3(e).
NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objection must be filed with the Clerk of the Court on or before July 18, 2019. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
ENTERED this 27th day of June, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE