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Lee v. Davis

United States District Court, N.D. Texas, Dallas Division

February 15, 2018

BERNARDIST DEVOTE LEE, ID # 808134, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order 3-251, this pro se habeas case has been automatically referred for pretrial management. Based on the relevant filings and applicable law, the Application to Proceed in Forma Pauperis, received on January 3, 2018 (doc. 5), should be denied, and the case should be dismissed without prejudice for failure to prosecute or follow orders of the court.

         I. BACKGROUND

         Bernardist Devote Lee (Petitioner), an inmate currently incarcerated in the Texas Department of Criminal Justice, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 and an application to proceed in forma pauperis (IFP) with a certificate of inmate trust account (CTA) that were received on January 3, 2018. (See docs. 3, 5.) The CTA showed a balance of $153.70 as of the date of its preparation, and a six-month average balance of $325.35. (See doc. 5.) Based on this information, the Court issued an order on January 4, 2015, finding that Petitioner had sufficient assets with which to pay the filing fee and that he should be denied leave to proceed IFP, but giving him thirty days to pay the required $5.00 filing fee. (doc. 6.) The order warned that failure to pay the fee could result in a formal recommendation that IFP status be denied and that his case be dismissed. (Id.) More than thirty days have passed, but Petitioner has not paid the filing fee, otherwise responded to the order to pay the fee, or filed anything else in the case.

         II. IN FORMA PAUPERIS

         Whether to permit or deny an applicant to proceed in forma pauperis is within the sound discretion of the Court. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); 28 U.S.C. § 1915(a). Courts should make the assessment of financial ability after considering whether payment of the filing fee will result in the plaintiff “suffering undue financial hardship.” Prows, 842 F.2d at 140. “This entails a review of other demands on individual plaintiffs' financial resources, including whether the expenses are discretionary or mandatory.” Id.; see also Misc. Order 13 at ¶ 9 (N.D. Tex. Feb. 1, 1977) (requiring habeas petitioner to pay filing fee if prison account and other resources exceed $50.00).

         As noted, Petitioner's CTA showed a balance of $153.70, and a six-month average balance of $325.35. He has not shown that he has any demands on his financial resources or that he will suffer undue financial hardship after payment of the $5.00 filing fee for this habeas action. His IFP motion should therefore be denied.

         III. INVOLUNTARY DISMISSAL

         Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Petitioner was given 30 days to pay the filing fee, and he was specifically warned that failure to do so could result in dismissal of this action. He still has not paid the fee or otherwise responded to the order to pay the fee. Because he failed to comply with the order that he pay the $5 filing fee, and has not otherwise responded to it, this case should be dismissed for failure to prosecute or follow an order of the court.

         IV. RECOMMENDATION

         Petitioner's application to proceed in forma pauperis should be denied, and this case should be dismissed without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute or follow orders of the court, unless Petitioner pays the filing fee within the time for objecting to this recommendation, or by some other deadline set by the court.

         SO RECOMMENDED

         INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

         A copy of these findings conclusions and recommendation shall be served on all parties in the manner provided by law Any party who objects to any part of these findings conclusions and recommendation must file specific written objections within 14 days after being served with a copy See 28 USC ยง 636(b)(1); Fed R Civ P 72(b) In order to be specific an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection and specify the place in the magistrate judge's findings conclusions and recommendation where the disputed determination is found An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific Failure to file specific written objections will bar the aggrieved party from appealing the factual ...


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