Opinion
No. 3:03-CV-2192-L
April 5, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE TUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND
A. Parties and Matters Before the Court
In September 2003, petitioner filed the instant federal petition for writ of habeas corpus (Pet.) pursuant to 28 U.S.C. § 2241 to obtain "release on personal recognizance bond pending resolution" of his habeas petition in Cause No. 3:03-CV-0960-N. (Pet. at 5-7; Attached Mem. at 1.) He names K.J. Wendt, Warden of the federal prison facility that formerly housed him, as respondent.
In October 2003, petitioner filed an application to proceed in forma pauperis, but failed to provide a certificate of inmate trust account. (See Application to Proceed In Forma Pauperis.) In January 2004, he filed a motion to stay proceedings for 180 days. (Mot. to Stay.)
B. Petitioner's Habeas History in This Court
The instant action is the sixth § 2241 petition filed by petitioner. In March 2003, he filed a habeas petition that was dismissed on June 16, 2003. See Davis v. Wendt, No. 3:03-CV-0466-N (N.D. Tex.). In April 2003, he filed a habeas petition that was unfiled and consolidated with Cause No. 3:03-CV-0466-N. See Davis v. Wendt, No. 3:03-CV-0675-L (N.D. Tex.). In May 2003, he filed a habeas petition that was dismissed on October 22, 2003. See Davis v. Wendt, No. 3:03-CV-0960'N (N.D. Tex.). In June 2003, he filed a petition that was administratively closed and consolidated with Cause No. 3:03-CV-0960-N. See Davis v. Wendt, No. 3:03-CV-1314-N (N.D. Tex.). In July 2003, he filed a habeas petition that was denied on August 8, 2003. See Davis v. Wendt, No. 3:03-CV-1466-G (N.D. Tex.). In September 2003, he filed the instant action to obtain release on bond pending resolution of his habeas action in Cause No. 3:03-CV-0960-N. (Pet. at 5-6; Attached Mem. at 1.)
II. IN FORMA PAUPERIS
Before the Court is petitioner's application to proceed in forma pauperis in the instant action. Within that application, he states that he receives about $100 per month from family and his prison job. Whether to permit or deny an applicant to proceed in forma pauperis is within the sound discretion of the Court. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); see also, 28 U.S.C. § 1915 (a). Courts should make the assessment of financial ability after considering whether payment of the filing fee will result in the petitioner "suffering undue financial hardship." Prows at 140. "This entails a review of other demands on individual plaintiffs' financial resources, including whether the expenses are discretionary or mandatory." Id.
Petitioner indicates that he receives $100 per month from various sources that he uses for copies and postage for legal proceedings. He does not indicate that he has any other demands on his financial resources. The Court, therefore, concludes that petitioner will not suffer undue financial hardship after payment of the $5.00 filing fee. Consequently, the Court should deny petitioner's request to proceed in forma pauperis.
III. JURISDICTION
Not only should the Court deny the request to proceed in forma pauperis in this action, but it should dismiss the action for lack of jurisdiction. "Article III of the Constitution limits federal `Judicial Power,' that is, federal-court jurisdiction, to `Cases' and `Controversies.'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395 (1980). A case becomes moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Id. at 396 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). "If a dispute has been resolved or if it has evanesced because of changed circumstances, including the passage of time, it is considered moot." American Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988). Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter."By the instant petition for writ of habeas corpus, petitioner seeks release on bond pending resolution of his habeas petition filed in Cause No. 3:03-CV-0960-N. On October 22, 2003, the Court dismissed that habeas petition with prejudice. On March 12, 2004, the Court denied petitioner's motion to alter or amend the judgment filed in that case. The Court has thus resolved petitioner's habeas action in Cause No. 3:03-CV-0960-N. Such resolution moots the instant petition for writ of habeas corpus. Consequently, the Court should dismiss the instant petition for lack of jurisdiction. It should also deny the pending motion to stay proceedings. There is no need to stay an action that has been rendered moot during the course of time.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. It is further recommended that the Court DENY the application to proceed in forma pauperis and the motion to stay proceedings for the reasons stated herein.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBTECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).