Dease v. Barney et al

Filing 11

ORDER ADOPTING IN PART 8 Report and Recommendation, to the extent that it recommends dismissal of the complaint w/o prejudice in the event that plf fails to submit a completed IFP application or fails to pay the $400 filing fee. Plf's ti me for submitting either the $400 filing fee or a completed & otherwise satisfactory IFP application is EXTENDED to 21 days from this date. 10 Plaintiff's Objections to the Report are GRANTED IN PART & DENIED IN PART. Plf's objectio ns are GRANTED but only to the ltd extent that addl time has now been provided for plf to pay the $400 filing fee or submit a completed IFP application. In all other respects, plf's objections are DENIED. 2 Application for Leave to Proce ed in forma pauperis filed by William H Dease will continue to pend; however, the application is insufficient as it now stands. 9 Motion to Compel filed by William H Dease is DENIED. Clerk is DIRECTED to send to plf 2 copies of this order, 2 copi es of doc. no. 2, & 2 copies of doc. no. 5. Clerk is directed to mail a copy of this order to Sheriff John Whetsel w/a cover ltr directing his attn to the paragraph at the top of pg 3 of this order. Signed by Honorable Stephen P. Friot on 9/9/14. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM HENRY DEASE,
Plaintiff,
vs.
LT. BARNEY, et al.,
Defendants.

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Case No. CIV-14-0673-F

ORDER
On August 15, 2014, Magistrate Judge Suzanne Mitchell entered a Report and
Recommendation (the Report), doc. no. 8, which recommended that the complaint in
this civil rights action be dismissed without prejudice, due to plaintiff’s failure to pay
the filing fee or cure errors in his application for leave to proceed in forma pauperis.
Plaintiff has objected to the Report. Doc. no. 10. Plaintiff has also filed a motion to
compel. Doc. no. 9. Plaintiff proceeds pro se, and his pleadings are liberally
construed. The court has reviewed all objected to matters de novo.
Plaintiff first objects to the Report by arguing that it incorrectly states the
deadline which the magistrate judge gave plaintiff for responding to the magistrate
judge. The deadline in question is that set by the magistrate judge for curing the errors
in plaintiff’s application for leave to proceed in forma pauperis. See, doc. no. 7,
setting deadline of August 6, 2014. The Report accurately describes the deadline, and
this particular objection is denied.
The rest of plaintiff’s objections relate in one way or another to plaintiff’s
contentions that officials at the Oklahoma County Jail, where plaintiff is in custody,
refuse to provide the necessary financial information to complete plaintiff’s

application for leave to proceed in forma pauperis, and that they refuse to make sure
the completed application is mailed to this court although plaintiff has attempted to
obtain their assistance in this regard.
The magistrate judge identified the ways in which plaintiff’s original
application for in forma pauperis status was deficient. Doc. no. 5. As stated there, the
original in forma pauperis application lacked financial information and the signature
of an authorized officer of the penal institution in which plaintiff is in custody. Id.
Also as stated there, the original application lacked a certified copy of plaintiff’s
institutional account statement for the required six-month period. Id. Plaintiff’s
motion to compel, doc. no. 9, which is cited as the basis of one of plaintiff’s
objections to the Report, contends that after the magistrate judge sent him an
additional application he then took various steps to obtain the missing matters from
“Inmate Trust/Prisoner Accounting” to no avail. Doc. no. 9, pp. 3-4.
The court makes no findings regarding the accuracy of plaintiff’s implied
assertions regarding the lack of cooperation of jail officials. What is clear, however,
is that plaintiff is incarcerated at the Oklahoma County Jail; that jail officials have
control over the only matters which the magistrate judge has identified as missing
from plaintiff’s original application for leave to proceed in forma pauperis; and that
plaintiff has now asserted his inability to obtain assistance from jail officials, although
he says he has repeatedly requested it, in providing the missing matters.
The clerk is DIRECTED to enclose the following documents to be mailed to
the plaintiff: two copies of this order: two copies of the incomplete application
previously submitted by the plaintiff (doc. no. 2, plaintiff’s original application for
leave to proceed in forma pauperis relief, which the magistrate judge ordered plaintiff
to cure); and two copies of the magistrate judge’s order identifying the information
which was missing from plaintiff’s original in forma pauperis application (doc. no. 5).
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These documents are intended to facilitate plaintiff’s ability, with the assistance of jail
officials upon his request, to assess and provide the missing information in a revised
and completed application for in forma pauperis status. The previously missing
matters may be added to plaintiff’s original application for in forma pauperis status,
and the revised application may then be submitted by plaintiff as a new and revised
application. Plaintiff is advised that he may present this order and the enclosed
documents to custodial officials to facilitate submission of the completed in forma
pauperis forms. The court fully expects that Oklahoma County Jail personnel will
cooperate by promptly providing the necessary information.

The clerk is

DIRECTED to mail a copy of this order to Sheriff John Whetsel, with a cover letter
directing his attention to this paragraph.
Rulings
Extension. Plaintiff’s time for submitting either the $400 filing fee or a
completed and otherwise satisfactory application to proceed in forma pauperis is
hereby EXTENDED to twenty-one days from the date of this order. Failure to timely
comply will result in dismissal of the complaint without prejudice, as recommended
in the Report.
Objections to the Report. Plaintiff’s objections are GRANTED IN PART and
DENIED IN PART. Plaintiff’s objections to the Report are GRANTED but only to
the limited extent that additional time has now been provided for plaintiff to pay the
$400 filing fee or submit a completed application to proceed in forma pauperis. In all
other respects, plaintiff’s objections to the Report are DENIED.
The Report. The Report of the magistrate judge is adopted to the extent that it
recommends dismissal of the complaint without prejudice in the event that plaintiff
fails to submit a completed application for in forma pauperis status, or fails to pay the
$400 filing fee. However, the court has now permitted an additional twenty-one days
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for submission of the completed application or for payment of the filing fee.
Accordingly, the complaint is not dismissed at this time and the Report is therefore
ADOPTED IN PART. The court notes that when the magistrate judge issued her
Report, she did not have before her, in pleading form, all of plaintiff’s contentions
regarding his repeated efforts to submit a completed application for in forma pauperis
status.
The application for in forma pauperis status, doc. no. 2, will continue to pend.
Plaintiff is advised, however, that the application is insufficient as it now stands. If
a revised application with the required matters is not submitted in a timely fashion, the
current application will be denied.
The Motion to Compel. Plaintiff’s motion to compel, doc. no. 9, seeks an order
requiring defendants to comply with the court’s rules, an order requiring defendants
to establish specific guidelines for processing inmates’ legal matters, and asks the
court to impose a fine for every day that the plaintiff requested assistance with his
application for leave to proceed in forma pauperis but was allegedly deprived of such
assistance. The instant order takes steps to alleviate any alleged problems with
obtaining the required matters from custodial officials. Moreover, the substance of
the motion to compel has been considered as part of plaintiff’s objections to the
Report. No additional relief is required or appropriate. The motion to compel is
DENIED.
Dated this 9th day of September, 2014.

14-0673p001.wpd

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