Davis v. Oklahoma State of

Filing 6

REPORT AND RECOMMENDATION it is recommended thatPetitioner's motion [Doc. No. 2] be denied and that he be ordered to prepay the full $5filing fee for this action to proceed. It is further recommended that unless Petitioner pays the $5 filing fee in full to the Clerk of the Court within twenty (20) days of any order adopting this Report andRecommendation, this action be dismissed without prejudice to refiling. Petitioner isadvised of his right to file an objection to this Report an d Recommendation with theClerk of this Court by April 10, 2006, in accordance with 28 U.S.C. 636 and Local CivilRule 72.1. Petitioner is further advised that failure to timely object to this Report andRecommendation waives the right to appellate rev iew of both factual and legal issuescontained herein. Moore v. United States, 950 F. 2d 656 (10th Cir. 1991).The Clerk is hereby ordered not to forward a copy of the petition to the appropriatestate agency until further order of the Court.ENTERED this 21st day of March, 2006.re 2 MOTION for Leave to Proceed in forma pauperis filed by Gilbert Dean Davis,, 1 Complaint, filed by Gilbert Dean Davis, Objections to R&R due by 4/10/2006. Signed by Judge Bana Roberts on 3/21/06. (sr, )

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Davis v. Oklahoma State of Doc. 6 Case 5:06-cv-00277-M Document 6 Filed 03/21/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA GILBERT DEAN DAVIS, Petitioner, vs. JUSTIN JONES,1 Respondent. ) ) ) ) ) ) ) ) ) Case No. CIV-06-277-M REPORT AND RECOMMENDATION Petitioner, a state prisoner appearing pro se, has filed a motion for leave to proceed in forma pauperis and supporting affidavit. Pursuant to an order entered by United States District Judge Vicki Miles-LaGrange 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 said motion, the undersigned finds that Petitioner has sufficient funds to prepay the filing fee of $5. Because he does not qualify for authorization to proceed without prepayment of the filing fee, it is recommended that Petitioner's motion [Doc. No. 2] be denied and that he be ordered to prepay the full $5 filing fee for this action to proceed. 28 U.S.C. 1915(a)(1). See Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (magistrate judge should have issued a report and recommendation, recommending denial of the motion to proceed in forma pauperis.). It is further recommended that unless Petitioner pays the $5 filing fee in full to the The Petitioner listed the State of Oklahoma as respondent. However, where the applicant is presently in custody pursuant to the state judgment in question, the state officer having custody of the applicant is the properly named respondent. Rule 2, Rules Governing Section 2254 Cases in the United States District Courts. Therefore, Justin Jones, the Director of the Department of Corrections is substituted as Respondent for the State of Oklahoma. 1 Dockets.Justia.com Case 5:06-cv-00277-M Document 6 Filed 03/21/2006 Page 2 of 2 Clerk of the Court within twenty (20) days of any order adopting this Report and Recommendation, this action be dismissed without prejudice to refiling. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 10, 2006, in accordance with 28 U.S.C. 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F. 2d 656 (10th Cir. 1991). The Clerk is hereby ordered not to forward a copy of the petition to the appropriate state agency until further order of the Court. ENTERED this 21st day of March, 2006. 2

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