Martin v. Jordan , 137 P.3d 681 ( 2006 )

T0 SHOW CAUSE ORDER FOR PAYMENT OF COSTS.

11 Petitioner is a prisoner in the custody of the Oklahoma Department of Corrections (Department). He seeks an extraordinary writ from this Court for the purpose of reviewing procedures of the Department relating to grievances he submitted to Department employees involving his medical care. The Department argues that the Court should not assume original jurisdiction, and that the action should be dismissed for Petitioner's failure to pay the filing fee in this Court. Petitioner's affidavit in support of his motion to proceed in forma pauperis states that he has one-thousand nine-hundred and seventy four dollars and seventy-eight cents ($1974.78), in his mandatory savings account.

T2 Funds from a prisoner's savings account "may be used by the inmate for fees or costs in filing a civil or criminal action as defined in Section 151 et seq. of Title 28 of the Oklahoma Statutes" or for specified federal court proceedings. 57 0.8.Supp.2004 § 549. See also Daniels v. Kaiser, 1993 OK 51, 851 P.2d 529, 531. The deposit for costs in this Court is Two Hundred Dollars ($200.00) and is required by 20 O.S.Supp. 2004 § 15. A prisoner must pay the costs required by law when an action is filed if the prisoner has sufficient funds available, and mandatory savings and trust accounts are considered for the purpose of determining the sufficiency of available funds. 57 0.8.Supp.2004 § 566.3(A)(1), (B)(8). Application of § 566.3 applies to "an action of any kind" and is not limited to a civil action as defined by Title 28 of the Oklahoma Statutes. Id. § 566.8(A)(1). A prisoner's mandatory savings account may be used for payment of the deposit for costs in this Court required by 20 0.8.8upp.2004 § 15.

13 In Smith v. Moore, 2002 OK 49, 50 P.3d 215, we explained that 12 0.S.2001 § 2008.1 acts "as a guide for the courts in refusing pauper status to prisoners who have institutional accounts exceeding $200.00. . . ." Petitioner's balance of $1974.78 in his mandatory savings account shows that he has sufficient funds to pay the statutory cost deposit in this Court.

T4 Petitioner shall either pay the cost deposit of $200.00 required by 20 0.S.Supp. 2004 § 15, or show cause why he should not be required to pay costs. Cotner v. Golden, 2006 OK 25, 110, 136 P.3d 631, (writ issued April 25, 2006). Petitioner shall pay the cost deposit, or file a response to this order to show cause, within thirty days of the date of this Order. Petitioner is cautioned that failure to pay the cost deposit or file a response as required by this Order may result in dismissal of his action. Okla.Sup.Ct.R. 1.2; 57 0.8.Supp.2004 § 566.3(A)(8).

T5 We note that the Department seeks dismissal for Petitioner's failure to pay costs, but the Department's motion is silent on whether the Petitioner has sought to use his mandatory savings. account for costs in this Court and whether the Department requires a court order before it will act on a prisoner's request for statutory court costs to be paid from a mandatory savings account. See Gamble v. Calbone, 375 F.3d 1021 (10th Cir.2004), and the discussion of the Department's procedures.

T6 When a prisoner seeks to file an action in forma pauperis and has sufficient funds to pay the statutorily required costs, "the prisoner shall be ordered to pay the required costs before the action may commence." 57 O.S.Supp.2004 § 566.3(A)(1). Additionally, the Department shall pay to a court, without a specific order from a court directing payment, the statutory cost deposit upon a prisoner's request for payment of the deposit to a court if the prisoner has the amount of the statutory costs in his mandatory savings account. 57 0.S.Supp.2005 § 549(A)(5); 57 0.S.Supp.2004 $ 566.3. The Department shall thus pay to this Court the $200.00 cost deposit required by 20 O.S8.Supp.2004 § 15 from Petitioner's mandatory savings account upon Petitioner's request if Petitioner has $200.00 in that account.

T7 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 1ST DAY OF MAY, 2006.

T8 WATT, C.J., WINCHESTER, V.C.J., LAVENDER, KAUGER, EDMONDSON, TAYLOR, COLBERT, JJ., Concur. 19 HARGRAVE, OPALA, JJ., Concur in part, Dissent in part.