Legg v. Evans

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 4/29/2010. Petitioner shall, w/in 21 days of filing date of this Order, submit appropriate filing fee of $5.00 to Clerk and he is cautioned that failure to pay fee will result in recommendation that action be dismissed. (Marciel, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. M. S. EVANS, Warden, Respondent. / Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole in 2008, together with an application to proceed in forma pauperis. Pursuant to federal statute, a filing fee of $5.00 is required to commence a habeas corpus action in federal district court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action "without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." 28 U.S.C. § 1915(a). Petitioner's in forma pauperis affidavit certifies that petitioner earns $48.00 a month and that his trust account has, over the past six months, held an average monthly balance of $342.60. See Dkt. No. 7. The amounts of petitioner's earnings and savings demonstrate that petitioner is able to pay the fee associated with filing this motion. Thus, petitioner has made an 1 ORDER WILLIAM LEGG, Petitioner, No. 2:10-cv-0488 WBS KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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inadequate showing of indigency, see, e.g., Taylor v. Delatoore, 281 F.3d 844 (9th Cir. 2002), and should be required to pay the initial filing fee in this action.1 Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner shall, within twenty-one days of the filing date of this order, submit the appropriate filing fee ($5.00) to the Clerk of the Court; and 2. Petitioner is cautioned that failure to pay the fee will result in a recommendation that this action be dismissed. Accordingly, IT IS HEREBY ORDERED that, within twenty-one days after the filing date of this order, petitioner shall submit the appropriate filing fee. DATED: April 29, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

legg0488.101c

In forma pauperis status may provide financial benefits beyond that associated with a case's initial filing fee. See 28 U.S.C. § 1915(c). Should additional expenses beyond petitioner's capacity to pay be required later in this case, petitioner may submit another application to proceed in forma pauperis. 2

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