Opinion
CIV-21-1142-C
12-10-2021
LISA ADAMS, Petitioner, v. ABOUTANAA ELHABTE, Warden of Mabel Bassett Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a pro se state prisoner, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). She has also filed an Application for Leave to Proceed In Forma Pauperis (“IFP, ” without prepaying fees or costs). (Doc. 2). United States District Judge Robin J. Cauthron referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5).
The filing fee for an application for a writ of habeas corpus is $5.00. 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), a district court has discretion to permit the commencement of an action without prepayment of fees or security therefor. See Grimes v. TCF Bank, 769 Fed.Appx. 659, 660 (10th Cir. 2019) (reviewing a district court order denying an IFP application for an abuse of discretion); Cabrera v. Horgas, 1999 WL 241783, at *1 (10th Cir. 1999) (“The decision to grant or deny in forma pauperis status under § 1915 lies within the sound discretion of the trial court.”).
Proceeding IFP “in a civil case is a privilege, not a right - fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). “[T]o succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees.” Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). The court evaluates “an application to proceed [IFP] . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008).
Having reviewed the Application, the undersigned finds that Petitioner has sufficient financial resources to pay the filing fee. In her Application, Petitioner lists her current account balance as $200 (Doc. 2, at 2), and her official Statement of Institutional Accounts confirms this. (Id. at Ex. 1). In fact, upon review of Petitioner's exhibit, it appears that her account balance remained well above the $5.00 required here for the last six months. (Id.) Because she does not qualify for authorization to proceed without prepayment of the filing fee, Petitioner's Application should be denied, and she should be required to pay the full filing fee for this action to proceed.
Even if the court were to grant IFP in this case, Petitioner's initial payment would still be the full filing fee of $5.00. Even when IFP is granted, prisoners are normally directed to pay “twenty percent (20%) of the greater of (1) the average monthly deposits, or (2) the average monthly balance in Plaintiff's prison accounts for the six-month period immediately preceding the filing of the complaint” pursuant to 28 U.S.C. § 1915(b)(1).
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the Court DENY Petitioner's Application for Leave to Proceed IFP (Doc. 2). The undersigned further recommends that if Petitioner does not pay the $5.00 filing fee in full to the Clerk of the Court within 21 days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to the refiling. LCvR 3.3(e).
Petitioner is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court by January 3, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives her right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.