Bryson v. Madden et al

Filing 7

ORDER: (1) Denying Motion to Proceed In Forma Pauperis [ECF No. 6 ]; and (2) Denying Motions for Stay and Abeyance, Evidentiary Hearing, and Discovery Without Prejudice [ECF Nos. [2-4]]. Signed by Judge Cynthia Bashant on 7/28/2022. (All non-registered users served via U.S. Mail Service)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD BRYSON, Case No.: 22cv00556 Petitioner, 12 13 v. 14 RAYMOND MADDEN, et al., 15 Respondents. 16 ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 6.]; AND (2) DENYING MOTIONS FOR STAY AND ABEYANCE, EVIDENTIARY HEARING, AND DISCOVERY WITHOUT PREJUDICE [ECF Nos. 2–4] 17 18 19 20 21 On April 20, 2022, Petitioner, a state prisoner proceeding pro se, filed a Petition for 22 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Court dismissed 23 the action on May 12, 2022 because Petitioner failed to either pay the $5.00 filing fee or 24 request to proceed in forma pauperis (“IFP”). Petitioner was given until July 18, 2022 to 25 either pay the filing fee or submit adequate proof he could not pay the fee. (Order, ECF 26 No. 5.) On July 11, 2022, Petitioner filed a Motion to Proceed IFP. (IFP Mot., ECF No. 27 6.) Additionally, Petitioner has filed a Motion for Stay and Abeyance (ECF No. 2), a 28 Motion for an Evidentiary Hearing (ECF No. 3), and a Motion for Discovery (ECF No. 4). -122cv00556 1 I. Motion to Proceed in Forma Paupers 2 The filing fee for a petition of writ of habeas corpus is $5.00, and the action may 3 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 4 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 5 2007). In its prior Order, this Court informed Petitioner he has failed to comply with this 6 requirement. (Order at 1.) Since then, Petitioner has moved to proceed IFP. (IFP Mot.) 7 A request to proceed IFP made by a state prisoner must include a certificate from 8 the warden or other appropriate officer showing the amount of money or securities the 9 petitioner has on account in the institution (“Prison Certificate”). Rule 3(a)(2), 28 U.S.C. 10 foll. § 2254; Local Civ. R. 3.2; Jacome v. IRS of California, No. 21-cv-2083 JLS (MSB), 11 2022 WL 395963, at *1 (S.D. Cal. Feb. 9, 2022). 12 reviewing court lacks the ability to assess whether the petitioner qualifies for IFP status, 13 i.e., whether the petitioner’s indigency inhibits him or her from paying the required fee. 14 Because Petitioner has failed to submit a Prison Certificate, the Court DENIES Petitioner’s 15 IFP Motion without prejudice. (ECF No. 6.) 16 II. Without a Prison Certificate, the Pending Motions for Stay and Abeyance, Evidentiary Hearing, and Discovery 17 This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or 18 qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. Accordingly, 19 the Court DENIES without prejudice Petitioner’s Motion for Stay and Abeyance (ECF No. 20 2), Motion for an Evidentiary Hearing (ECF No. 3), and Motion for Discovery (ECF No. 21 4). 22 III. Conclusion 23 For the foregoing reasons, the Court DENIES without prejudice Petitioner’s IFP 24 Motion (ECF No. 6). The Court further DENIES without prejudice Petitioner’s Motions 25 for Stay and Abeyance (ECF No. 2), an Evidentiary Hearing (ECF No. 3), and Discovery 26 (ECF No. 4.) 27 // 28 // -222cv00556 1 To proceed with his case, by no later than October 1, 2022 Petitioner must file a 2 copy of this Order, together with either the $5.00 filing fee or a Prison Certificate that 3 constitutes adequate proof that Petitioner cannot pay the $5.00 filing fee. Once Petitioner 4 pays the $5.00 filing fee or obtains IFP status, he may renew his Motions for Stay and 5 Abeyance, an Evidentiary Hearing, and Discovery, if he so wishes. 6 7 IT IS SO ORDERED. DATED: July 28, 2022 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -322cv00556

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