Opinion
2:02-CV-0079
April, 24, 2002
REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PAY FILING FEE AND FILE AMENDED PETITION
On March 11, 2002, petitioner JOHNNY LEE STERLING filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner appears to challenge a prison disciplinary proceeding at the William P. Clements Unit in Amarillo, Potter County, Texas.
Petitioner did not submit with his habeas petition an Application to Proceed In Forma Pauperis, nor did petitioner submit any payment to satisfy the requisite filing fee. in addition, petitioner submitted an incomplete petition for writ of habeas corpus which did not contain answers to the questions pertaining to the disciplinary proceeding he appears to challenge. On March 25, 2002, this Court entered a Briefing Order directing petitioner to either pay the $5.00 filing fee cr submit an Application to Proceed In Forma Pauperis together with a current certified in forma pauperis data sheet from the institution in which he is incarcerated. In addition, the Briefing Order directed petitioner to file an Amended Petition with complete information as to what action he is challenging and what relief he is requesting. Petitioner was given twentxr (20) days from the date of the Court's Order in which to properly supplement or pay the filing fee.
As of this date, petitioner has failed to comply with the Court's Orders by either payment of the $5.00 filing fee or through supplementation or amendment to his petition. The Court is unable to determine whether petitioner qualifies for a grant of pauper's status. Because of petitioner's failure to comply with a direct order from the Court, as well as his failure to prosecute his application, it is the opinion of the undersigned that petitioner has neglected his case to such an extent that it warrants dismissal.
RECOMMENDATION
It is the RECOMMENDATION of the Magistrate Judge that the habeas application filed by petitioner JOHNNY LEE STERLING be DISMISSED for failure to pay the $5.00 filing fee and to file an amended petition as ordered.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party who wishes to object to this Report and Recommendation must do so within fourteen (14) days following the filing date indicated hereon. See 28 U.S.C. § 636 (b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
If petitioner pays the $5.00 filing fee within fourteen (14) days after the filing date of this Report and Recommendation, or submits proper documentation evidencing the authorization of the disbursement of the requisite funds, and submits a fully completed amended petition, the recommendation of dismissal will be withdrawn. Petitioner is advised, however, that the payment of the filing fec will not guarantee that this Court will reach the merits of petitioner's application, or that the petition will continue past the initial screening process.
IT IS SO RECOMMENDED.