Opinion
Case No. CIV-16-1442-F
12-22-2016
ALEX S. PENATE, Petitioner, v. RAYMOND BYRD, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed an Application (Motion) for Leave to Proceed In Forma Pauperis and supporting affidavit (ECF No. 4). Pursuant to an order entered by United States District Judge Stephen P. Friot, this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the Motion, the undersigned finds that Petitioner has sufficient funds to prepay the filing fee of $5.00. Because he does not qualify for authorization to proceed without prepayment of the filing fee, it is recommended that Petitioner's Motion, (ECF No. 4) be DENIED and that he be ordered to prepay the full $5.00 filing fee for this action to proceed. 28 U.S.C. § 1915(a)(1). Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (magistrate judge should issue a report and recommendation when denying motion to proceed in forma pauperis.).
It is further recommended that this action be dismissed without prejudice to re-filing unless Petitioner pays the $5.00 filing fee in full to the Clerk of the Court within twenty (20) days of any order adopting this Report and Recommendation.
Petitioner is advised that he may file an objection to this Report and Recommendation with the Clerk of this Court by January 9, 2017, in accordance with 28 U.S.C. § 636 and Federal Rule Civil Procedure 72. Petitioner is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This report and recommendation terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.
ENTERED on December 22, 2016.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE