Opinion
Civil Action No. 11-cv-02532-BNB
12-01-2011
BRANDON C. JOHNSON, Applicant, v. J.W. WANDS, Respondent.
ORDER OF DISMISSAL
Applicant, Brandon C. Johnson, is a prisoner in the custody of the United States Bureau of Prisons who currently is incarcerated at the Federal Correctional Institution in Florence, Colorado. Mr. Johnson initiated this action by filing a pro se "Motion for Preliminary Injunction" on September 28, 2011. By order dated October 3, 2011, Magistrate Judge Boyd N. Boland directed Mr. Johnson to cure certain enumerated deficiencies in the action. Specifically, he directed Mr. Johnson to submit an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the court-approved form in addition to a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On October 19, 2011, Mr. Johnson submitted an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
On October 24, 2011, the Court entered an order denying the Motion for Leave to Proceed to 28 U.S.C. § 1915. The Court noted that subsection (a)(1) of 28 U.S.C. § 1915 allows a litigant to commence a lawsuit without prepayment of fees or security therefor. However, "[t]here is no absolute right nto proceed in court without paying a filing fee in civil matters." Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988); see also 28 U.S.C. § 1914(a). Proceeding in forma pauperis pursuant to § 1915, i.e. without paying a filing fee under § 1914, is a privilege extended to individuals unable to pay such a fee. See Holmes, 852 F.2d at 153. The Court found that the certified copy of Mr. Johnson's account statement, filed on October 19, 2011, demonstrated that he had an available balance of $107.54 in his inmate account as of October 13, 2011. Therefore, the Court found that Mr. Johnson had sufficient funds to pay the $5.00 filing fee. Mr. Johnson was directed to pay the $5.00 filing fee required under 28 U.S.C. § 1915 if he wished to pursue his claims in this action. Mr. Johnson was warned that if he failed to pay the $5.00 filing fee within the time allowed, the action would be dismissed without further notice.
Mr. Johnson has failed to pay the $5.00 filing fee as directed by the October 24 Order. Further, he has not communicated with the Court since October 19, 2011. Therefore, the action will be dismissed without prejudice for Mr. Johnson's failure to pay the filing fee. Accordingly, it is
ORDERED that the Application and the action are dismissed without prejudice for Mr. Johnson's failure to pay the $5.00 filing fee as directed by the October 24, 2011, Order. It is FURTHER ORDERED that all pending motions are denied as moot.
BY THE COURT:
LEWIS T. BABCOCK, Senior Judge
United States District Court