Opinion
CIV-24-115-HE
03-05-2024
JESSIE WAYNE MENDENHALL, Plaintiff, v. STATE OF OKLAOHMA, Defendant.
REPORT & RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner proceeding pro se, has applied for leave to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. Docs. 2, 6, 9.United States District Judge Joe Heaton has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The undersigned recommends the Court deny Plaintiff's requests to proceed IFP and dismiss this case without prejudice unless Plaintiff pays the full filing fee.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Background.
The Court twice ordered Plaintiff to cure the deficiencies in his IFP applications with the information required by 28 U.S.C. § 1915 and LCvR3.3(b). Docs. 5, 8. Plaintiff had not signed the applications and they were missing financial information and the signature of an authorized prison official. Doc. 2, at 3-4;Doc. 6, at 3-4. Plaintiff also had not attached a certified statement of his prison accounts even though he referenced those accounts in his applications. Doc. 2, at 2-4; Doc. 6, at 2-4. Plaintiff filed a third IFP application, which he signed, but he again did not provide the required certification from a prison official or attach a statement of his prison accounts. Doc. 9, at 3-4. He did state in the application that he thought his son was going to pay the filing fee for him but, if the Court had “not received it by now,” to “[p]lease take [the filing fee] from [his] savings of [$]2818.42.” Id. at 5.
Plaintiff indicated in his first application that he had a balance of $2,687.52 in his prison savings account and a balance of $364.47 in his regular prison account. Doc. 2, at 2.
In his second application, Plaintiff stated both that he has money in his “savings” that he “can't touch” until he discharges in two months and that he has “$2000 in [his] savings” for which he gives “permission . . . to use for legal service.” Doc. 6, at 2-3.
II. Discussion.
Although Plaintiff did not follow the Court's orders, the undersigned can assess from Plaintiff's three IFP applications that he has sufficient funds to prepay the $405.00 filing fee. See 28 U.S.C. § 1914(a). Specifically, Plaintiff states, under penalty of perjury, that he has “over” $2,000 in his prison savings account. Doc. 9, at 3. “Under Oklahoma law, see Okla. Stat. tit. 57, § 549(A)(5), these funds may be used to pay the costs of federal filing fees.” Todd v. Att'y Gen. of Okla., 377 Fed.Appx. 832, 834 (10th Cir. 2010).
The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $55.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
Because Plaintiff has not shown that he is entitled to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915(a)(1), the undersigned recommends the Court deny Plaintiff's requests to proceed IFP.
III. Recommendation and notice of right to object.
Plaintiff is not entitled to proceed IFP, so the undersigned recommends the Court deny his IFP applications. Docs. 2, 6, 9. The undersigned further recommends the Court dismiss this action without prejudice unless Plaintiff pays the full filing fee to the Clerk of Court within twenty-one days of any order adopting this Report and Recommendation. See LCvR3.3(e).
The undersigned advises Plaintiff that he may file an objection to this Report and Recommendation with the Clerk of Court by March 26, 2024. The undersigned further advises Plaintiff that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.