Myton v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Rasene Myton
v. 	Case No. 22-cv-72-SM
Robert Hazlewood, Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Petitioner Rasene Myton has filed a motion (Doc. No. 10) to
proceed in forma pauperis (“IFP”) in his appeal of this matter,
asserting that he “is unable to pay the costs” of his appeal.
Doc. No. 10, at 1. 	The filing fee for an appeal is $505. 	The
Court may authorize a prisoner to bring an appeal without
prepayment of the filing fee if the prisoner “is unable to pay”
that fee. 	28 U.S.C. § 1915(a)(1).
In support of his request to proceed IFP in his appeal, Mr.
Myton has filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the
filing of his notice of appeal, as required by § 1915(a)(2).
The Court’s review of that information reveals that, for the
six-month period immediately preceding the filing of his notice
of appeal, the average monthly balance in Mr. Myton’s prison
trust account was $5,938.32, and that at the time he filed the
instant motion, the balance in that account was $5,614.65. 	The
Court therefore finds that Mr. Myton has sufficient funds in his
prison trust account to pay the filing fee in this matter, and
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recommends that the District Judge deny his motion to proceed
IFP.1 	See Lay v. Okla. Dep’t of Corrs., 746 F. App’x 777, 780
(10th Cir. 2018) (finding District Court acted within its
discretion when it denied prisoner’s IFP motion on the basis
that the $550.67 in his prison account “sufficed to prepay” the
$402 filing fee); Noe v. U.S. Gov’t, No. 21-cv-00780-GPG, 2021
U.S. Dist. LEXIS 100022, at *2, 2021 WL 2093242, at *1 (D. Col.
May 11, 2021) (denying prisoner’s request to proceed IFP because
prisoner had $3660 in his prison account when he applied for IFP
status, and after sending $3000 to family, still had $660 in his
prisoner account and therefore had “sufficient funds” to pay
$402 filing fee).
Conclusion
For the foregoing reasons, the District Judge should deny
Mr. Myton’s motion to proceed IFP on appeal (Doc. No. 10). 	Any
objections to this Report and Recommendation (“R&R”) must be
filed within fourteen days of receipt of this notice. 	See Fed.
1 The Court notes that even if it granted Mr. Myton’s motion
and allowed him to proceed without prepayment of the filing fee,
28 U.S.C. § 1915(b)(1) requires the Court to assess an “initial
partial filing fee of 20 percent of the greater of – (A) the
average monthly deposits to the prisoner’s account; or (B) the
average monthly balance in the prisoner’s account for the 6-
month period immediately preceding the filing of the . . .
notice of appeal.” 	Here, that would be $1187.66, which is more
than double the $505 filing fee.
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R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion.
Failure to file specific written objections to this R&R
within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016). 	“Only those issues fairly
raised by the objections to” this Report and Recommendation “are
subject to review in the district court and those not preserved
by such objection are precluded on appeal.” 	Id. (citations
omitted).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 22, 2022
cc: 	Rasene Myton, pro se
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