Opinion
Case No. C19-5135-RBL-TLF
04-01-2019
EDMUND F BALL III, Petitioner, v. RON HAYNES, Respondent.
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS Noted for April 19 , 2019
This case has been referred to Magistrate Judge Theresa L. Fricke pursuant to 28 U.S.C. § 636(b)(1) and Local Rule MJR 3 and 4. This matter comes before the Court on plaintiff's filing of an application to proceed in forma pauperis. Dkt. 1. Because plaintiff's application indicates he has sufficient income with which to pay the $5.00 filing fee, the undersigned recommends that the Court deny the application.
DISCUSSION
The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. 28 U.S.C. § 1915(a). Yet IFP status is a privilege not a right, and the district court has discretion to deny such status. O'Laughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). The privilege of proceeding with a cause of action IFP should be permitted "only in exceptional circumstances." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The Court has broad discretion in denying an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963).
By requesting the court to proceed in forma pauperis, plaintiff is asking the government to incur the filing fee because he allegedly is unable to afford the costs necessary to proceed with his cause of action. Petitioner's prison trust account statement shows he has average monthly receipts of $236.72 and an average spendable balance of $103.20. Dkt. 4. Given that the filing fee for habeas corpus petitions is $5.00, petitioner has sufficient funds in his prison trust account to pay that fee.
The Court also notes that petitioner's IFP application is also deficient in that he has failed sign the supporting declaration under penalty of perjury. See Dkt. 1, at 2. Accordingly, in the event the Court declines to adopt the undersigned's recommendation that petitioner's IFP application be denied because he has sufficient funds to pay the filing fee, the undersigned recommends the application otherwise be denied as deficient due to petitioner's failure to sign the supporting declaration and that petitioner be required to submit a signed declaration in support of his application.
CONCLUSION
Because it is reasonable for plaintiff to incur the costs to proceed with this cause of action, the undersigned recommends that the court deny his application to proceed in forma pauperis. Accordingly, the undersigned also recommends that the Court order plaintiff to pay the required filing fee within thirty (30) days of the Court's order. Furthermore, in the event the Court declines to adopt the recommendation that petitioner be required to pay the filing fee, the undersigned recommends the IFP application be denied as deficient for lack of a signed declaration, and that petitioner be required to re-submit a properly signed declaration supporting his IFP application.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure (FRCP) 72(b); see also FRC 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 Fed. R. Civ. P. 72(b), the Clerk is directed set this matter for consideration on April 19, 2019, as noted in the caption.
Dated this 1st day of April, 2019.
/s/_________
Theresa L. Fricke
United States Magistrate Judge