Owens v. State of Washington
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 9 Objections to Report and Recommendation filed by Mychal Owens. **3 PAGE(S), PRINT ALL**(Mychal Owens, Prisoner ID: 878377)(TG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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MYCHAL OWENS,
CASE NO. C17-5033 BHS-JRC
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Petitioner,
v.
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ORDER ADOPTING REPORT
AND RECOMMENDATION
STATE OF WASHINGTON,
Respondent.
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This matter comes before the Court on the Report and Recommendation (“R&R”)
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of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 7), and
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Petitioner’s objections to the R&R (Dkt. 9).
On January 17, 2017, Petitioner filed a motion for leave to proceed in forma
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pauperis (“IFP”). Dkt. 1. On February 13, Petitioner filed an amended motion. Dkt. 13.
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On March 7, 2017, Petitioner paid the filing fee of five dollars, notwithstanding his
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pending IFP motion, and the Clerk filed his habeas petition on the Court’s docket. See
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Dkt. 6.
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On March 10, 2017, because Petitioner had paid the filing fee, Judge Creatura
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issued the R&R, denying Petitioner’s IFP motion as moot. Dkt. 8. On March 24, 2017,
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Petitioner objected to the R&R. Dkt. 9.
ORDER - 1
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The district judge must determine de novo any part of the magistrate judge’s
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disposition that has been properly objected to. The district judge may accept, reject, or
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modify the recommended disposition; receive further evidence; or return the matter to the
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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).
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Petitioner argues that the IFP should not have been denied because he had to
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obtain his initial filing fee by requesting money from family. Dkt. 9. He further argues
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that he does not believe he will be able to pay any future fees or costs. Id. However, the
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purpose of Petitioner’s IFP motion was to waive the prepayment of the statutory filing fee
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because funds were presently unavailable. See 28 U.S.C. § 1915(b). If granted, the IFP
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motion would not have relieved Petitioner of his obligation to pay that fee altogether. See
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id. The Court is unaware of any authority suggesting that IFP status may be invoked to
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obtain a refund of filing fees that have already been paid.
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Having paid his filing fee when funds were available, the IFP motion is indeed
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moot and Petitioner is not entitled to a refund of his filing fee. Therefore, the Court
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adopts the R&R. To the extent that Petitioner complains he may be unable to pay future
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costs or fees associated with his petition or any future appeal, he may request IFP status
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again when and if such costs actually arise so that the Court may assess the IFP motion in
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light of the relevant circumstances.
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The Court having considered the R&R, Petitioner’s objections, and the remaining
record, does hereby find and order as follows:
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(1)
The R&R is ADOPTED; and
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(2)
Petitioner’s IFP motion is DENIED.
ORDER - 2
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Dated this 23rd day of May, 2017.
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BENJAMIN H. SETTLE
United States District Judge
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ORDER - 3
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