Opinion
Civil Action No. 18-219J
11-06-2018
ROBERT LEAL, Petitioner, v. FCI LORETTO WARDEN, Respondent.
Judge Kim R. Gibson/
Re: ECF No. 1 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the Motion for Leave to Proceed in Forma Pauperis (the "IFP Motion"), ECF No. 1, be denied because Petitioner has more than sufficient funds in his inmate account pay the entire filing fee of $5.00 with sufficient amounts remaining for his personal needs.
II. REPORT
Robert Leal ("Petitioner"), is pro se federal prisoner, who is currently housed in the Federal Correctional Institution at Loretto ("FCI-Loretto"). He seeks IFP status in order to prosecute a Section 2241 habeas petition, challenging the taking away of his Good Conduct Time ("GCT") as a sanction for him being found to have committed prohibited acts after a disciplinary hearing was conducted. Petitioner complains that the disciplinary hearing violated his due process rights. However, because Petitioner's IFP Motion shows that he had a "National Six Months Average Daily Balance" of $156.26 and a "Local Maximum Balance for the previous 30 days" (preceding 10/12/2018) of $250.06 and an average balance for the same previous 30 days of $144.97, ECF No. 1 at 4 and because he receives $5.75 from FCI-Loretto each month, id. ¶ 1, Petitioner has more than sufficient funds and resources to be able to pay the $5.00 filing fee for the present habeas petition. In fact, as of October 12, 2018, Petitioner had an "Available Balance" of $40.46. Id. at 4.
Whether to grant or deny the IFP Motion is committed to the sound discretion of the District Court. See Cotto v. Tennis, 369 F. App'x 321, 322 (3d Cir. 2010) ("We review the denial of leave to proceed IFP for abuse of discretion."). In the sound exercise of our discretion and after reviewing the IFP Motion, we find that Petitioner has not met his burden to show entitlement to IFP status.
The IFP Motion indicates that Petitioner had more than sufficient funds to pay the small filing fee in this case. Moreover, Petitioner has not shown that paying the $5.00 filing fee would "force [him] to abandon what may be a meritorious claim in order to spare himself complete destitution." Cotto, 369 F. App'x at 322 (quoting Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985)).
III. CONCLUSION
For the reasons set forth herein, it is recommended that the pending IFP Motion be denied. If the District Court adopts this Report and Recommendation, Petitioner, of course, may thereafter pay the entire filing fee within a time certain or face dismissal of the Petition for failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
RESPECTFULLY SUBMITTED:
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Date: November 6, 2018 cc: The Honorable Kim R. Gibson
United States District Judge
ROBERT LEAL
58751-060
LORETTO
FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
LORETTO, PA 15940