Opinion
CIV-23-1086-F
12-19-2023
JEREMIAH CHRISTAIN PITTMAN, Petitioner, v. WARDEN MILLER, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus, (ECF No. 1). United States District Judge Stephen P. Friot has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
In accordance with that referral, the undersigned reviewed the pleadings filed by Petitioner and entered an Order (ECF No. 5), notifying Petitioner that he must either pay the $5.00 filing fee or be granted leave to proceed without prepayment of fees. The Petitioner was ordered to cure this deficiency by December 18, 2023. The Clerk of Court provided the Petitioner with the necessary forms to enable him to comply with the Court's order. Petitioner was further advised that if the deficiency was not cured, the undersigned would recommend dismissal of the action without prejudice and without further notice.
Petitioner has now submitted an Application to Proceed without Prepayment of Fees and attached an inmate account summary current through May 3, 2023. See ECF No. 6. Having reviewed said motion and attachment, the undersigned finds that Petitioner has sufficient funds to prepay the filing fee of $5.00. Although Petitioner did not fully comply with the undersigned's order, he did attest in his application that he receives money from family and friends and his savings account. Petitioner also attempted to complete the required certification portion and although some information Petitioner attempted to fill in is difficult to discern, he does indicate at least $20.00 in his account. See ECF No. 5, at 3 and 4. Thus, the Petitioner has not shown that he is entitled to this Court's authorization to proceed without prepayment of the $5 filing fee.
Despite the Court ordering him to cure specific deficiencies by December 18, 2023, Petitioner did not provide with his application the required certification portion, including the signature of an authorized prison official nor did he attach a current inmate account statement. Petitioner, did however, sign and date the form and attest that he receives money from family and friends and his savings account. See ECF No. 6, see also Rule 3, Rules Governing Section [2241] Cases in the United States District Courts (stating that the petitioner must either pay the filing fee or submit “a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution”).
Because he does not qualify for authorization to proceed without prepayment of the filing fee, it is recommended that Petitioner's motion, (ECF No. 6) 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 refiling 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 5, 2024 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.