Opinion
2:00-CV-0256.
February 27, 2001.
REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS and TO DISMISS FOR FAILURE TO PAY FILING FEE
On July 31, 2000, petitioner FRANK BENAVIDES 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 disciplinary proceeding conducted May 26, 2000 which resulted in the forfeiture of 10 days good time. Petitioner is in respondent's custody pursuant to a conviction for the offense of theft out of the 337th Judicial District Court of Harris County, Texas.
Petitioner did not submit with his habeas application any payment to satisfy the requisite filing fee but, instead, submitted an Application to Proceed In Forma Pauperis and a certified in forma pauperis data sheet from the institution in which he is confined. By his request, petitioner seeks permission to proceed with this action without first being required to pre-pay fees and costs or otherwise being required to give security therefor. In his application, petitioner avers he has received, within the past 12 months, $50.00 a month from a cousin. Petitioner also declares he has $30.00 in his prison account. Petitioner's data sheet reflects a balance of $26.54 as of July 27, 2000, deposits of $225.00 to petitioner's prison account in the preceding 6 months, $100.00 of which was deposited within the prior 3 months. The data sheet also reflects petitioner has maintained an average balance of $11.87 for the 6 months prior to his filing, with an average deposit per month of $37.50.
Petitioner does not qualify for a grant of pauper's status. Petitioner possesses, has possessed, or has had access to, the funds needed to pay the $5.00 filing fee in the instant cause and should have included such payment with the submission of his application or subsequent to such submission.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that petitioner's "Application to Proceed In Forma Pauperis " be DENIED. It is the further RECOMMENDATION of the Magistrate Judge that the habeas application filed by petitioner FRANK BENAVIDES 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, utilizing the inmate correspondence reply card.
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.
IT IS SO RECOMMENDED.