Burgess v. Daniels

Filing 7

ORDER denying 3 Motion for Leave to Proceed in Forma Pauperis. FURTHER ORDERED that the request 6 by Mr. Burgess for a copy of the Local Rules of Practice for this Court is denied as moot. FURTHER ORDERED that the clerk of the Court supplement the docketing records for ECF No. 6 and this action to indicate that the clerk of the Court mailed a copy of the Local Rules to Mr. Burgess on February 19, 2013, by Judge Lewis T. Babcock on 2/22/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00293-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
COREY BURGESS,
Applicant,
v.
CHARLES A. DANIELS,
Respondent.

ORDER DENYING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915

Applicant, Corey Burgess, is a prisoner in the custody of the United States
Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High
Security, in Cañon City, Colorado. Mr. Burgess, acting pro se, submitted to the Court
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1), a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action (ECF No. 3), and a certified copy of his trust fund account
statement (ECF No. 5). As part of the Court’s review pursuant to D.C.COLO.LCivR 8.2,
the Court has determined that the submitted documents are in proper form. For the
reasons stated below, the § 1915 motion will be denied because Mr. Burgess does not
qualify for leave to proceed pursuant to § 1915.
Subsection (a)(1) of 28 U.S.C. § 1915 allows a litigant to commence a lawsuit
without prepayment of fees or security therefor. However, “[t]here is no absolute right
to proceed in court without paying a filing fee in civil matters.” Holmes v. Hardy, 852

F.2d 151, 153 (5th Cir. 1988); see also 28 U.S.C. § 1914(a). Proceeding in forma
pauperis pursuant to § 1915, i.e. without paying a filing fee under § 1914, is a privilege
extended to individuals unable to pay such a fee. See Holmes, 852 F.2d at 153.
The certified copy of Mr. Burgess’s account statement filed on February 19,
2013, shows that he has an available balance of $85.18 in his inmate account as of
February 14, 2013. Therefore, the Court finds that Mr. Burgess has sufficient funds to
pay the $5.00 filing fee. The § 1915 motion will be denied. Mr. Burgess will be directed
to pay the $5.00 filing fee required pursuant to 28 U.S.C. § 1914 if he wishes to pursue
his claims in this action.
Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) submitted by
Applicant, Corey Burgess, is denied. It is
FURTHER ORDERED that Mr. Burgess shall pay the full $5.00 filing fee within
thirty (30) days from the date of this order if he wishes to pursue his claims in this
action. It is
FURTHER ORDERED that, if Mr. Burgess fails to pay the $5.00 filing fee within
the time allowed, the action will be dismissed without further notice. It is
FURTHER ORDERED that the request (ECF No. 6) by Mr. Burgess for a copy of
the Local Rules of Practice for this Court is denied as moot. The clerk of the Court
mailed a copy of the Local Rules to Mr. Burgess on February 19, 2013. (ECF No. 6 at
1). It is

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FURTHER ORDERED that the clerk of the Court supplement the docketing
records for ECF No. 6 and this action to indicate that the clerk of the Court mailed a
copy of the Local Rules to Mr. Burgess on February 19, 2013.
DATED at Denver, Colorado, this

22nd day of

February

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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