Opinion
3:02-CV-28-R
April 25, 2002
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 in implementation thereof, this cause has been 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 federal prisoner pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is presently incarcerated at the Federal Medical Center (FMC) in Fort Worth, Texas. Respondent is the Warden of FMC Fort Worth. No process has been issued in this case.
Findings and Conclusions: On March 6, 2002, the magistrate judge issued an order informing Petitioner that he had $302.00 in his inmate trust account and, thus, that he had to pay the $5.00 filing fee within thirty days. Miscellaneous Order No. 13, which governs proceedings pursuant to 28 U.S.C. § 2254 and 2255, 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." In this court's discretion such a rule has been extended to proceedings pursuant to § 2241. 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 Petitoner's request to proceed in forma pauperis and directing that the petition be dismissed without prejudice, within twenty (20) days of the District Court's order, unless Petitioner tenders the $5.00 filing fee to the Court Clerk.
The Clerk will mail a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Serv's. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.