Owens v. State of Washington

Filing 11

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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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 MYCHAL OWENS, CASE NO. C17-5033 BHS-JRC 7 Petitioner, v. 8 9 ORDER ADOPTING REPORT AND RECOMMENDATION STATE OF WASHINGTON, Respondent. 10 11 This matter comes before the Court on the Report and Recommendation (“R&R”) 12 13 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 7), and 14 Petitioner’s objections to the R&R (Dkt. 9). On January 17, 2017, Petitioner filed a motion for leave to proceed in forma 15 16 pauperis (“IFP”). Dkt. 1. On February 13, Petitioner filed an amended motion. Dkt. 13. 17 On March 7, 2017, Petitioner paid the filing fee of five dollars, notwithstanding his 18 pending IFP motion, and the Clerk filed his habeas petition on the Court’s docket. See 19 Dkt. 6. 20 On March 10, 2017, because Petitioner had paid the filing fee, Judge Creatura 21 issued the R&R, denying Petitioner’s IFP motion as moot. Dkt. 8. On March 24, 2017, 22 Petitioner objected to the R&R. Dkt. 9. ORDER - 1 1 The district judge must determine de novo any part of the magistrate judge’s 2 disposition that has been properly objected to. The district judge may accept, reject, or 3 modify the recommended disposition; receive further evidence; or return the matter to the 4 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 5 Petitioner argues that the IFP should not have been denied because he had to 6 obtain his initial filing fee by requesting money from family. Dkt. 9. He further argues 7 that he does not believe he will be able to pay any future fees or costs. Id. However, the 8 purpose of Petitioner’s IFP motion was to waive the prepayment of the statutory filing fee 9 because funds were presently unavailable. See 28 U.S.C. § 1915(b). If granted, the IFP 10 motion would not have relieved Petitioner of his obligation to pay that fee altogether. See 11 id. The Court is unaware of any authority suggesting that IFP status may be invoked to 12 obtain a refund of filing fees that have already been paid. 13 Having paid his filing fee when funds were available, the IFP motion is indeed 14 moot and Petitioner is not entitled to a refund of his filing fee. Therefore, the Court 15 adopts the R&R. To the extent that Petitioner complains he may be unable to pay future 16 costs or fees associated with his petition or any future appeal, he may request IFP status 17 again when and if such costs actually arise so that the Court may assess the IFP motion in 18 light of the relevant circumstances. 19 20 The Court having considered the R&R, Petitioner’s objections, and the remaining record, does hereby find and order as follows: 21 (1) The R&R is ADOPTED; and 22 (2) Petitioner’s IFP motion is DENIED. ORDER - 2 1 Dated this 23rd day of May, 2017. A 2 3 BENJAMIN H. SETTLE United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 3

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