Jones v. Oklahoma State of et al

Filing 7

REPORT AND RECOMMENDATION recommending that the Court deny the mtn for leave to proceed in forma pauperis, order payment of the filing fee w/in 20 days and dismiss the action without prejudice if Mr Jones fails to timely pay the filing fee or show go od cause for failure to do so. 1 Petition for Writ of Habeas Corpus, filed by Hershell Jones,, 2 MOTION for Leave to Proceed in forma pauperis filed by Hershell Jones. Objections to R&R due by 11/13/2006. This R&R terminates the referral. Signed by Judge Robert Bacharach on 10/23/06. (ch, )

Jones v. Oklahoma State of et al

Doc. 7

Case 5:06-cv-01157-C

Document 7

Filed 10/23/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA HERSHELL JONES, Petitioner, v. STATE OF OKLAHOMA, et al., Respondents. ) ) ) ) ) ) ) ) )

Case No. CIV-06-1157-C

REPORT AND RECOMMENDATION Mr. Hershell Jones has filed a petition for habeas relief. With the petition, he filed a motion for leave to proceed in forma pauperis. The motion indicates that Mr. Jones has $46.00 in his savings account, and the filing fee is only $5.00.1 Because Mr. Jones has adequate funds for the filing fee,2 the undersigned recommends that the Court: (1) deny the motion for leave to proceed in forma pauperis, (2) order payment of the filing fee within twenty days,3 and (3) dismiss the action without prejudice if Mr. Jones fails to timely pay the filing fee or show good cause for the failure to do so.4

1

See 28 U.S.C. § 1914(a) (2000).

2

Oklahoma law governing the statutory savings account expressly allows inmates to withdraw funds from the account to pay fees under 28 U.S.C. § 1911, et seq. Okla. Stat. tit. 57 § 549(A)(5); see also Williams v. Austin, 890 P.2d 416, 418 (Okla. Ct. App. 1994) ("A prisoner's savings held by the Department of Corrections may be used to pay fees or costs in filing a civil action." (citations omitted)).
3

See W.D. Okla. LCvR 3.3(e).

4

See W.D. Okla. LCvR 3.3(e); see also Cosby v. Meadors, 351 F.3d 1324 (10th Cir. 2003) (upholding dismissal of a federal inmate's civil rights complaint based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay).

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Case 5:06-cv-01157-C

Document 7

Filed 10/23/2006

Page 2 of 2

The Petitioner is advised of his right to object to this report and recommendation by November 13, 2006. See W.D. Okla. Local Civil Rule 72.1(a). If the Petitioner does object, he must file a written objection with the Court Clerk for the United States District Court, Western District of Oklahoma. The Petitioner is further advised that if he does not timely object, he would waive his right to appellate review over a denial of pauper status in the district court. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This report and recommendation terminates the referral. Entered this 23rd day of October, 2006.

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