December 30, 2013
KEVIN COE, Petitioner,
MARK STRONG, Respondent.
RECOMMENDATIONS To DENY IN FORMA PAUPERIS STATUS
J. RICHARD CREATURA, Magistrate Judge.
The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the petition pursuant to 28 U.S.C. § 2254.
Petitioner asks that the Court grant him in forma pauperis status and waive the five dollar filing fee (ECF No. 1). The Court recommends denying petitioner's motion to proceed in forma pauperis because the financial documents petitioner places before the Court show that he can afford to pay the five dollar filing fee. Petitioner provides a resident trust fund statement showing a stream of deposits and expenditures (ECF No. 1). Petitioner alleges he receives a monthly stipend of between two hundred and fifty and three hundred dollars per month (ECF No. 1).
Petitioner's right to proceed in forma pauperis is not absolute. The Court of Appeals reviews denials of in forma pauperis status for abuse of discretion. Denardo v. Collum, 48 F.3d 1227 (9th Cir. 1995). Further, the Ninth Circuit addressed the denial of in forma pauperis status over forty years ago and held that proceeding in forma pauperis is a matter within the sound discretion of the trial court in civil actions. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963).
Accordingly, because petitioner has a stream of income, the Court recommends denial of the motion to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) 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 de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on January 24, 2014 as noted in the caption.