United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
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.
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.
IN FORMA PAUPERIS
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).
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.
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.
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.
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
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
§ 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 ...