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Cosden v. State

United States District Court, W.D. Washington, at Tacoma

September 23, 2014

WILLIAM E COSDEN, Petitioner,
v.
STATE OF WASHINGTON, Respondent.

REPORT AND RECOMMENDATION

J. RICHARD CREATURA, Magistrate Judge.

The District Court referred this petition for a writ of habeas 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.

The Court recommends that petitioner's motion to proceed in forma pauperis be denied because petitioner has the funds to pay the full five dollar filing fee. The Court should give petitioner thirty days to pay the filing fee. If petitioner does not pay the fee, then the Court should dismiss the action.

The United States District Court for the Eastern District of Washington transferred the petition to this Court on September 16, 2014 (Dkt. 6). The financial documents petitioner presented to the Court in connection with his motion to proceed in forma pauperis show that petitioner has more than five dollars on hand and that he has an average spendable balance of over one hundred dollars a month (Dkt. 5). Petitioner can afford the five dollar filing fee in this case.

The right to proceed in forma pauperis is not absolute and denial of in forma pauperis status is reviewed 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). Here, petitioner has a stream of funds available and can pay the filing fee. The Court recommends denying the motion to proceed in forma pauperis.

Petitioner should be given thirty days to pay the full five dollar filing fee. Failure to pay that fee should result in immediate dismissal of this petition by Court Order.

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 October, 17, 2014, as noted in the caption. This Report and Recommendation is not a final appealable order.


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