Opinion
No. 3:03-CV-3016-M.
April 9, 2004
ORDER
The Court has under consideration petitioner's Application to Proceed In Forma Pauperis filed on March 8, 2004. He also filed a computer printout setting forth his trust fund account statement for the six month period immediately preceding the filing of this action, as required by 28 U.S.C. § 1915(a).
On February 23, 2004, the undersigned Magistrate Judge recommended that the Court dismiss this action for the failure of petitioner to comply with an order of the Court dated January 6, 2004, which directed him to submit a request to proceed in forma pauperis or pay the requisite filing fee within twenty days. In view of the instant application to proceed in forma pauperis, the undersigned Magistrate Judge hereby vacates her findings and recommendation dated February 23, 2004. Although the Court does not condone the disregard of its orders, it recognizes that dismissal of this action appears unduly harsh for the filing of the instant application after the allotted twenty-day period.
Nevertheless, after carefully evaluating the trust fund account statement, the Court finds that petitioner has sufficient assets to pay the full filing fee in this action. 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's trust fund account statement indicates that his balance at the time of its filing was $114.19. Petitioner does not indicate that he has any other demands on his financial resources. ( See Application in Support.) The Court, therefore, concludes that petitioner will not suffer undue financial hardship after payment of the $5.00 filing fee. See MISC. ORDER 13.
For the foregoing reasons, the Court VACATES her findings and recommendation dated February 23, 2004. Furthermore, although the Court should deny petitioner's request to proceed in forma pauperis (doc. 4), it appears more appropriate and efficient to grant petitioner thirty days to pay the requisite filing fee before recommending that in forma pauperis be denied. Consequently, unless petitioner tenders the full filing fee of $5.00 to the Clerk of the Court within thirty days of the date of this Order, the undersigned Magistrate Judge will recommend that in forma pauperis be denied and that this action be dismissed without prejudice for failure to comply with a court order under Fed.R.Civ.P. 41(b).