Hirakawa v. Thomas et al

Filing 4

DEFICIENCY ORDER AND ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS 3 - Signed by JUDGE SUSAN OKI MOLLWAY on 11/3/08. ("The Clerk of Court is DIRECTED to send Petitioner a blank petition for writ of habeas corpus under 28 U .S.C. § 2254. Petitioner must file his Petition on the court-approved form on or before November 24, 2008. Failure to do so will result in AUTOMATIC DISMISSAL of this action without prejudice." "Petitioner is given up to an including November 24, 2008, to pay the $5.00 filing fee. Failure to submit the $5.00 filing fee on or before November 24, 2008, will result in the AUTOMATIC DISMISSAL of this action without prejudice.") (emt, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) Petitioner, ) ) vs. ) ) T. THOMAS and CLAYTON FRANK, ) ) Respondents. _____________________________ ) MASON HAROLD HIRAKAWA, CIV. NO. 08-00486 SOM-KSC DEFICIENCY ORDER AND ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS DEFICIENCY ORDER AND ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS On October 27, 2008, pro se Petitioner Mason Harold Hirakawa filed a petition for writ of habeas corpus under 28 U.S.C. 2254 ("Petition"), as well as an application to proceed in forma pauperis. court-approved form. The Petition, however, was not filed on a The court requires that these forms be used The by all prisoners filing petitions for writ of habeas corpus. Clerk of Court is DIRECTED to send Petitioner a blank petition for writ of habeas corpus under 28 U.S.C. 2254. Petitioner must file his Petition on the court-approved form on or before November 24, 2008. Failure to do so will result in AUTOMATIC DISMISSAL of this action without prejudice. In addition, Petitioner's in forma pauperis application shows that the present balance of Petitioner's spendable prison account is $30.14, and he has a current balance of $218.99 in his restricted prison trust account. The filing fee for a petition for writ of habeas corpus is $5.00. See 28 U.S.C. 1914(a). Petitioner is able to pay the statutory filing fee for this action and is not a pauper within the meaning of 28 U.S.C. 1915. application is DENIED. Petitioner is notified that parties filing actions in the United States District Court are required to pay filing fees. 28 U.S.C. 1914(a). An action may proceed without the immediate Accordingly, the payment of a filing fee only upon granting of in forma pauperis status. See 28 U.S.C. 1915. Failure to pay the statutory filing fee will result in dismissal of this action without prejudice. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (district court has authority to dismiss without prejudice prisoner complaint for failure to pay partial filing fee); In re Perroton, 958 F.2d 889 (9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay required filing fees). Based on the foregoing, it is HEREBY ORDERED that Petitioner's in forma pauperis application is DENIED. Petitioner is given up to an including November 24, 2008, to pay the $5.00 filing fee. Failure to submit the $5.00 filing fee on or before November 24, 2008, will result in the AUTOMATIC DISMISSAL of this action without prejudice. IT IS SO ORDERED. 2 DATED: Honolulu, Hawaii, November 3, 2008. /s/ Susan Oki Mollway Susan Oki Mollway United States District Judge Mason Harold Hirakawa v. T. THOMAS and CLAYTON FRANK; Civ. No. 08-00486 SOM-KSC; DEFICIENCY ORDER AND ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS 3

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