Lopez v. Holinka

Filing 2

Order : Petitioner to submit $5 filing fee or six-month trust fund account statement by 10/15/2009. Signed by Magistrate Judge Stephen L. Crocker on 9/25/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT F O R THE W E S T E R N DISTRICT OF W I S C O N S I N

JOEL LOPEZ, ORDER P etitio n er, 0 9 -cv -5 7 7 -slc v. W A RD E N C. HOLINKA, Respondent.

Petitioner, a prisoner at the Federal Correctional Institution in Oxford, W is c o n s in , has f ile d a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He has not paid the $ 5 filing fee or submitted a certified copy of his six-month trust fund account statement. I can c o n s t r u e his petition to include a request for leave to proceed in forma pauperis, but I cannot d e te r m in e whether petitioner is indigent for the purpose of filing a § 2241 petition until he s u b m it s a trust fund account statement for the six-month period immediately preceding the filing o f his habeas corpus petition. Longbehn v. United States, 169 F.3d 1082 (7th Cir. 1999).

P e t it io n e r 's trust fund account statement should cover the six-month period beginning a p p r o x im a te ly March 15, 2009 and ending approximately September 17, 2009. Once petitioner submits his trust fund account statement, this court will calculate p e t it io n e r 's average monthly deposits and his average monthly balances for the six-month period m e n t i o n e d above. If 20% of the greater of these two figures is $5 or more, he will not be eligible f o r indigent status and will have to prepay all of the $5 filing fee. If 20% of the greater of these t w o figures is less than $5, he will be required to prepay whatever portion less than $5 has been c a lc u la te d .

N o w that petitioner is aware of the formula this court uses in determining whether a p r is o n e r is indigent for the purpose of paying a $5 filing fee, he may be able to figure easily w h e t h e r he qualifies. If he knows that he will not qualify for indigent status, he may elect to s u b m it a check or money order made payable to the clerk of court in the amount of $5 in lieu of t h e six-month statement requested above. In any event, petitioner should act quickly. If, by O c t o b e r 15, 2009, petitioner does not submit either the $5 payment or a trust fund account s t a t e m e n t for the last six months, I will assume that he wishes to withdraw this action voluntarily a n d I will dismiss the petition without prejudice to his filing his case at a later date. Petitioner s h o u l d show a copy of this order to prison officials so that they are aware they should send either th e $5 filing fee or the required trust fund account statement to this court.

ORDER I T IS ORDERED that petitioner may have until October 15, 2009, in which to submit a trust fund account statement for the period beginning approximately March 15, 2009 and e n d in g approximately September 17, 2009. Alternatively, petitioner may have until October 15, 2 0 0 9 , in which to pay the $5 fee for filing his petition. If, by October 15, 2009, petitioner does n o t pay the filing fee or submit the required trust fund account statement, the clerk of court is d i r e c t e d to close this case for petitioner's failure to prosecute. E n t e r e d this 25 t h day of September, 2009. B Y THE COURT: /s / S T E P H E N L. CROCKER M a g is t r a t e Judge

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