Opinion
No. 3:03-CV-2744-L
April 22, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court filed on February 25, 2004, this action was re-referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Wynne Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case.
Findings and Conclusions: On February 26, 2004, the magistrate judge issued an order informing Petitioner that he had $66.58 in his inmate trust account and, thus, that he had to pay the $5.00 filing fee within thirty days. Miscellaneous Order No. 13 provides in the ninth paragraph that "[a] petitioner whose prison account or other resources exceed fifty ($50.00) dollars must pay appropriate filing fees and may not prosecute a petition in forma pauperis in this District." As of date of this recommendation, the court has received neither the $5.00 filing fee nor a motion for extension of time to pay the filing fee.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter an order denying Petitioner's request to proceed in forma pauperis and directing that the petition be dismissed without prejudice for failure to pay the filing fee.
In light of the disposition of this case, Petitioner's motion for discovery, filed on February 18, 2004, should be denied as moot.
The Clerk will mail a copy of this recommendation to Petitioner.