Penate v. Byrd

Filing 7

ORDER ADOPTING 5 Report and Recommendation to the extent it recommends that petitioner's application for leave to proceed ifp be denied; DENYING 4 Motion for Leave to Proceed in forma pauperis filed by Alex S Penate. 5 Report and Recomm endation is DECLARED MOOT to the extent it recommends that this action be dismissed w/o prejudice unless petitioner pays the $5.00 filing fee in full to the clerk of the court within 20 days of any order adopting the Report and Recommendation. This action is RE-REFERRED to United States Magistrate Judge Shon T. Erwin for further proceedings in accordance with 28 U.S.C. § 636 and 3 12/19/2016 referral order. Signed by Honorable Stephen P. Friot on 1/12/2017. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

ALEX S. PENATE,

)
)
)
)
)
)
)
)
)

Petitioner,
-vsRAYMOND BYRD, Warden,
Respondent.

Case No. CIV-16-1442-F

ORDER
On December 22, 2016, United States Magistrate Judge Shon T. Erwin issued
a Report and Recommendation, recommending that petitioner’s application for leave
to proceed in forma pauperis be denied and that he be ordered to prepay the filing fee
of $5.00. Magistrate Judge Erwin further recommended that this action be dismissed
without prejudice to refiling unless petitioner pays the $5.00 filing fee in full to the
clerk of the court within 20 days of any order adopting the Report and
Recommendation.
The clerk of the court has received a payment of the $5.00 filing fee from
petitioner. See, doc. no. 6. In light of petitioner’s payment of the filing fee, the court
ORDERS as follows:
(1) The Report and Recommendation issued by United States Magistrate Judge
Shon T. Erwin on December 22, 2016 (doc. no. 5) is ACCEPTED, ADOPTED and
AFFIRMED to the extent it recommends that petitioner’s application for leave to
proceed in forma pauperis be denied.
(2) Petitioner’s Application for Leave to Proceed In Forma Pauperis, filed
December 16, 2016 (doc. no. 4), is DENIED.

(3) The Report and Recommendation issued by United States Magistrate Judge
Shon T. Erwin on December 22, 2016 (doc. no. 5) is DECLARED MOOT to the
extent it recommends that this action be dismissed without prejudice unless petitioner
pays the $5.00 filing fee in full to the clerk of the court within 20 days of any order
adopting the Report and Recommendation.
(4) This action is re-referred to United States Magistrate Judge Shon T. Erwin
for further proceedings in accordance with 28 U.S.C. § 636 and the court’s previous
referral order of December 19, 2016 (doc. no. 3).
DATED January 12, 2017.

16-1442p001.wpd

2