Farley v. Allbaugh

Filing 7

ORDER ADOPTING 5 REPORT AND RECOMMENDATION, denying as moot 2 Petitioner's motion to proceed in forma pauperis, and recommitting this action to the Magistrate Judge for further proceedings. Signed by Honorable Patrick R Wyrick on 6/11/2019. (ks)

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

JAMIE GLENN FARLEY,
Petitioner,
v.
JOE M. ALLBAUGH,
Respondent.

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Case No. CIV-19-00370-PRW

ORDER
On April 29, 2019, United States Magistrate Judge Bernard M. Jones issued a
Report and Recommendation (Dkt. 5) in this action. The Magistrate Judge recommends
that Petitioner’s motion for leave to proceed in forma pauperis (Dkt. 2) be denied and the
action be dismissed without prejudice unless Petitioner pays the full filing fee within 21
days of any order adopting his Report and Recommendation. Petitioner was advised that
he has a right to object to the Report and Recommendation by May 20, 2019, and that
failure to make a timely objection would waive any right to appellate review of the in forma
pauperis issue.
A review of the file reveals that Petitioner paid the filing fee on May 10, 2019.
Accordingly, it is clear that Petitioner does not object to the Magistrate Judge’s Report and
Recommendation (Dkt. 5). 1 Therefore, Petitioner has waived further review of the issues

1

See Duvall v. Okla. State Bd. of Osteopathic Examiners, No. 5:17-cv-00247-F, 2017 WL
1379393, at *1 (W.D. Okla. Apr. 14, 2017).
1

addressed in the Report and Recommendation. 2 Moreover, his motion for leave to proceed
in forma pauperis (Dkt. 2)—at least insofar as it concerns payment of the initial filing fee—
is now moot. 3
Upon de novo review, the Court:
(1)

ADOPTS IN PART the Report and Recommendation (Dkt. 5) issued by the
Magistrate Judge on April 29, 2019. The recommendation to deny the motion
for leave to proceed in forma pauperis is ADOPTED. However, the
recommendation to dismiss the action without prejudice to refiling in the
event Petitioner fails to pay the filing fee within 21 days is rendered MOOT
because the Petitioner has already paid the $5.00 filing fee.

(2)

DENIES Petitioner’s motion to proceed in forma pauperis (Dkt. 2) as moot;
and

(3)

RECOMMITS this action to the Magistrate Judge for further proceedings.

IT IS SO ORDERED this 11th day of June, 2019.

2

Olivera v. Cate, No. 5:14-cv-00162-D, 2016 WL 1436694, at *1 (W.D. Okla. Apr. 11,
2016) (citing Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); United States v.
2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996)).

3

See Hymel v. Harvenek, No. 5:14-cv-00273-F, 2014 WL 2117866, at *1 (W.D. Okla. May
21, 2014); accord Lipscomb v. Madigan, 221 F.2d 798 (9th Cir. 1955).
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