Miller v. Stole

Filing 4

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Spencer L Miller. Noting Date 4/17/2009, by Judge J. Kelley Arnold. (JLP) (copy mailed to Plaintiff)

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 27 28 This habeas corpus action, filed pursuant to 28 U. S.C. 2254, has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR 4. Petitioner filed a proposed petition. Petitioner applies to proceed in forma pauperis. His documents show an average income of between $40.00 and $46.00 dollars per month (Dkt. # 3). Further, the end of the month statement shows a spendable balance of $7.78 (Dkt. # 3). Petitioner can afford the $5.00 filing fee in this case. The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an application to proceed in forma
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA SPENCER L. MILLER, Petitioner, v. BRUNO STOLE, Respondent. Case No. C09-5083BHS/JKA REPORT AND RECOMMENDATION TO DENY IN FORMA PAUPERIS STATUS NOTED FOR: April 17, 2009

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pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied, 375 U.S. 845 (1963). Petitioner has the funds needed for full payment. Plaintiff has not shown that is unable to pay the full filing fee to proceed with his petition. Accordingly the court recommends the in forma pauperis status be DENIED and petitioner be given thirty days to pay the filing fee. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on April 17, 2009, as noted in the caption. DATED this 16 day of May, 2009.

/s/ J. Kelley Arnold J. Kelley Arnold United States Magistrate Judge

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