Opinion
CASE NO. 3:19-CV-05906-BHS-JRC
12-05-2019
BILLY WAYNE RICHMOND, Petitioner, v. JEFFREY UTTECHT, Respondent.
REPORT AND RECOMMENDATION NOTED FOR: DECEMBER 27, 2019
The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge J. Richard Creatura. Petitioner Billy Wayne Richmond filed a proposed 2254 habeas petition and an application to proceed in forma pauperis ("IFP"). Dkt. 6.
Petitioner's IFP application indicates that he has a monthly salary of $39.21, $263.16 in a savings account, and $18.01 in his account at Coyote Ridge Corrections Center (cash on hand). Dkt. 6. Petitioner's trust account statement reflects that he has average monthly receipts of $39.21. Id.
On October 24, 2019, the Court ordered petitioner pay the $5.00 filing fee or show cause why his application to proceed IFP should not be denied on or before November 24, 2019. Dkt. 7. The Court warned petitioner that failure to show cause or pay the filing fee shall be deemed a failure to properly prosecute this matter and that the Court would recommend dismissal of this matter.
The right to proceed IFP is not absolute. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (Proceeding IFP is a matter within the sound discretion of the trial court in civil actions)). Petitioner has not responded to the Court's order. Based on his savings account, cash on hand, and average monthly salary, petitioner can afford the five-dollar filing fee. Accordingly, the Court recommends that petitioner's application to proceed IFP be denied. The Court recommends that petitioner pay the full five-dollar filing fee within thirty days after an order has been entered. If petitioner fails to pay the full five-dollar filing fee, the Court recommends that the Clerk's Office be directed to dismiss this action and close the case.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, 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 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 December 27, 2019 as noted in the caption.
Dated this 5th day of December, 2019.
/s/_________
J. Richard Creatura
United States Magistrate Judge