York v. Miller-Stout

Filing 5

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Richard D York. Noting Date 10/23/2009. Signed by Magistrate Judge Karen L Strombom. (CMG; copy mailed to Petitioner)

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 See Temple v. Ellerthorpe, 586 F.Supp. 848 (D.R.I. 1984); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex. 1977); U.S. ex rel. Irons v. Com. of Pa., 407 F.Supp. 746 (M.D.Pa. 1976); Shimabuku RICHARD D. YORK, No. C09-5513 RBL/KLS Petitioner, v. MAGGIE MILER-STOUT, Respondent. This case has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Petitioner is an inmate at the Airway Heights Correction Center (AHCC). He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. ' 2254 and an application to proceed in forma pauperis. Dkt. 1. Because Petitioner appears to have sufficient funds with which to pay the $5.00 court filing fee, the undersigned recommends the Court deny the application. DISCUSSION A district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad discretion in denying an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied, 375 U.S. 845 (1963). Several district courts have ruled that denial of in forma pauperis status is not unreasonable when a prisoner is able to pay the initial expenses required to commence a lawsuit. REPORT AND RECOMMENDATION Noted for: October 23, 2009 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

REPORT AND RECOMMENDATION - 1

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v. Britton, 357 F.Supp. 825 (D.Kan. 1973), aff'd, 503 F.2d 38 (10th Cir. 1974); Ward v. Werner, 61 F.R.D. 639 (M.D.Pa. 1974). By requesting the Court to proceed in forma pauperis, Petitioner is asking the government to incur the filing fee because he allegedly is unable to afford the costs necessary to proceed with his petition for habeas corpus. Petitioner=s application reflects that he is employed at AHCC and earns $50.00 per month and that he has an average spendable balance of $86.26. Dkt. 1, pp. 1 and 3. The undersigned recognizes that the funds to which Petitioner has access may not be great. However, given the fact that a prisoner=s basic needs are provided for while he is incarcerated and the minimal filing fee required to proceed with this action ($5.00), it is not unreasonable to expect Petitioner to pay that fee from those funds. CONCLUSION Because Petitioner appears to have sufficient funds to pay the filing fee, the undersigned recommends that the Court deny his application to proceed in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), Petitioner shall have ten (10) days from service of this Report and Recommendation to file written objections thereto. 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 set this matter for consideration on October 23, 2009, as noted in the caption. DATED this 5th day of October, 2009.

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REPORT AND RECOMMENDATION - 2

Karen L. Strombom United States Magistrate Judge