IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER PIERRE BROWN §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0951-M

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Christopher Pierre Brown, appearing pro se, has filed an application to proceed

in forma pauperis in this habeas case brought under 28 U.S.C. § 2254. For the reasons stated herein,

the application should be denied. 

I.

Petitioner was convicted of aggravated robbery with a deadly weapon and sentenced to 33

years confinement. His conviction and sentence were affirmed on direct appeal. Brown v. State,

No. 05-02-01388-CR (Tex. App.--Dallas, Mar. 27, 2003, pet. ref'd). Petitioner also filed an

application for state post-conviction relief. The application was denied. Ex parte Brown, No.

60,010-01 (Tex. Crim. App. Jan. 19, 2005). Petitioner then filed this action in federal court. Process

has been withheld pending a determination of the application to proceed in forma pauperis.

II.

The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a). The

district court may authorize the commencement of a civil action without the prepayment of fees or

costs “by a person who submits an affidavit . . . that [he] is unable to pay such fees or give security

 

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therefor.” 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the applicant

in order to determine whether the payment of fees would cause an undue financial hardship. Prows

v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988). The amount of money

available to an inmate in his prison trust account or from other sources should be considered. See

id.; Braden v. Estelle, 428 F.Supp. 595, 601 (S.D. Tex. 1977).

Petitioner has submitted an affidavit in support of his application to proceed in forma

pauperis. A statement of his inmate trust account is attached. The record shows that petitioner has

$184.71 on deposit with prison officials. The filing fee for a habeas petition is $5.00. 28 U.S.C. §

1914(a). The court concludes that petitioner is able to pay this fee without causing undue financial

hardship. 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).

RECOMMENDATION

The application to proceed in forma pauperis should be denied. Petitioner should be ordered

to pay the statutory filing fee by June 20, 2005. If he fails to do so, this case should be dismissed

without further notice.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

 

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DATED: May 23, 2005.

 

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