Opinion
No. CIV S-07-1080 FCD EFB P.
December 27, 2007
ORDER
Petitioner is a prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On June 29, 2007, the court gave petitioner 30 days either to pay the $5 filing fee for this action or to submit an application for leave to proceed in forma pauperis. On October 26, 2007, the court found that the fee had not been paid and no application was on file, and recommended that this action be dismissed. On November 19, 2007, petitioner filed objections.
Petitioner contends that this action should not be dismissed because he has attempted to file an application for leave to proceed in forma pauperis. He asserts that on June 6, 2007, he submitted such an application with his petition for a writ of habeas corpus. He asserts that when he received this court's June 29, 2007, order, he requested that the prison provide him with the form application and that he again followed the prison's rules for filing an application for leave to proceed in forma pauperis. Pursuant to these rules, once a prisoner signs the papers to be filed with the court, a prison official retains control of them and is charged with the obligation to mail them. It appears that petitioner has attempted to file an application for leave to proceed in forma pauperis. However, nowhere in his objections does he assert that he cannot afford the costs of suit. Accordingly, the findings and recommendations will be vacated, and petitioner will be provided another opportunity to show that he cannot afford the costs of suit.
Accordingly, it is ORDERED that:
1. The October 26, 2007, findings and recommendations are vacated; and
2. Petitioner has 30 days from the date this order is served to submit an application for leave to proceed in forma pauperis. The Clerk of the Court is directed to send to plaintiff this court's form application for leave to proceed in forma pauperis.