Harris v. Oklahoma

Full title: CHRISTIAN X. HARRIS, Petitioner, v. STATE OF OKLAHOMA, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Date published: Jun 25, 2019

Case No. CIV-19-530-PRW (W.D. Okla. Jun. 25, 2019)

Opinion

Case No. CIV-19-530-PRW

06-25-2019

CHRISTIAN X. HARRIS, Petitioner, v. STATE OF OKLAHOMA, Respondent.

BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2254, [Doc. No. 1], and United States District Judge Patrick R. Wyrick referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). At issue is Petitioner's second application for leave to proceed in forma pauperis, [Doc. No. 7].¹

1 The Court ordered Petitioner to cure his first application, [Doc. No. 3], as it was missing updated financial information. [Doc. No. 6].

Petitioner's application and attached financial documents show a balance of $20.11 in his inmate account and $47.72 in his savings account.² See id. at 7-8. 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).

2 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").

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). Adoption of this Report and Recommendation will moot Plaintiff's first application for leave to proceed in forma pauperis, [Doc. No. 3].

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 16, 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 25^th day of June, 2019.

/s/_________

BERNARD M. JONES

UNITED STATES MAGISTRATE JUDGE