United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
referred for findings, conclusions, and recommendation.
Before the Court is the petitioner's Application to
Proceed In District Court Without Prepaying Fees or
Costs, received on December 26, 2018 (doc. 5). Based on
the relevant findings and applicable law, the application
should be DENIED, and the case should be
dismissed without prejudice for failure to follow an order of
Mrina (Petitioner), a citizen of Tanzania detained by the
Immigration and Customs Enforcement (ICE) at the Prairieland
Detention Center, filed a civil action against ICE and ICE
property manager Mr. Tucker under the Federal Tort Claims Act
(FTCA). (No. 3:18-CV-3400-L, doc. 3.) He alleged that he was
detained on July 23, 2007, for overstaying his visa, and that
on May 11, 2009, he was transferred from the Haskell
Detention Center to Dallas County jail without his property.
ICE officials confiscated other property of his at the Dallas
County jail. He was released on June 18, 2010, but ICE was
not able to locate his property. Petitioner filed his tort
claim form with ICE on June 7, 2011. Because Petitioner's
FTCA suit also sought his release from detention and a stay
of removal pending its conclusion, his challenge to his
detention pending removal from the United States was
construed as a habeas petition under 28 U.S.C. § 2241.
The habeas claims were severed from the FTCA action and
opened in this habeas case. (See doc. 6.)
application to proceed in forma pauperis (IFP) in
the FTCA action showed that his inmate trust account had a
balance of $41.96 as of the date of its preparation, and a
balance of $71.49 at the beginning of December 2018. It
showed that he had sufficient funds to pay the $5.00 filing
fee. Based on this information, the Court issued an order on
December 28, 2018, finding that Petitioner should be denied
leave to proceed in forma pauperis (IFP) in this
habeas case, but giving him thirty days to pay the required
$5.00 filing fee. (doc. 7.) The order warned that failure to
pay the fee could result in a formal recommendation that IFP
status be denied and that his habeas case be dismissed.
(Id.) More than thirty days have passed, but
Petitioner has not paid the filing fee or otherwise responded
to the order to pay the fee for this habeas 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 IFP application showed a balance of
$41.96 as of the date of its preparation, and a balance of
$71.49 at the beginning of December 2018. It showed that he
had sufficient funds to pay the $5.00 filing fee. 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 sua sponte an action for failure to
prosecute or follow orders of the court. McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). 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 habeas 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
habeas case should be dismissed for failure to prosecute or
follow an order of the court.
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 an
order of the court, unless Petitioner pays the $5.00 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
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 U.S.C. § 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 ...