Opinion
2:01-CV-0101.
September 12, 2001.
REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS and TO DISMISS FOR FAILURE TO PAY FILING FEE
On March 5, 2001, petitioner WILLIAM HOMER WEBB filed with the United States District Court for the Northern District of Texas, Fort Worth Division, a Writ of Habeas Corpus by a Person in State Custody. Such application was referred to this Court and filed March 9, 2001. By his habeas application, petitioner appears to challenge his December 1, 1997 conviction for the offense of criminal mischief, out of the 181st District Court of Randall County, Texas.
Petitioner did not submit with his habeas application any payment to satisfy the requisite filing fee. Petitioner did submit an Application to Proceed In Forma Pauperis and a certified in forma pauperis data sheet from the institution in which he is confined. By his request, petitioner seeks permission to proceed with this action without first being required to pre-pay fees and costs or otherwise being required to give security therefor.
On August 31, 2001, the undersigned United States Magistrate Judge entered and order which required petitioner to file an updated in forma pauperis data sheet or to pay the requisite filing fee on or before September 10, 2001. Petitioner was admonished that failure to follow the Court's order within the time allowed would result in a recommendation of dismissal without further notice.
In his application received March 9, 2001, petitioner states that he has received $10.00 to $20.00 per month within the previous twelve (12) months, from his Mother. Further, petitioner conceded at the time, that he had funds in prison accounts of approximately $20.00. Petitioner's data sheet reflects receipt of deposits totaling $115.00 during the six-month period prior to the filing of his petition; specifically, his account shows deposits of $50.00 in October, 2000, $15.00 in December, 2000, and $50.00 in February, 2001.
Petitioner does not qualify for a grant of pauper's status. Petitioner possesses, has possessed, or has had access to, the funds needed to pay the $5.00 filing fee in the instant cause and should have included such payment with the submission of his application or complied with the Court's order and provided an updated in forma pauperis data sheet.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that petitioner's "Application to Proceed In Forma Pauperis" be DENIED. It is the further RECOMMENDATION of the Magistrate Judge that the habeas application filed by petitioner WILLIAM HOMER WEBB be DISMISSED for failure to pay the $5.00 filing fee.
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, the recommendation of dismissal will be withdrawn. Petitioner is advised, however, that the payment of the filing fee will not guarantee that this Court will reach the merits of petitioner's application.
IT IS SO RECOMMENDED.