Opinion
No. CV-05-3484-PHX-FJM (VAM).
November 30, 2005
ORDER
Rayford L. Terrell (Petitioner), presently confined in the Maricopa County Lower Buckeye Jail in Phoenix, Arizona (Lower Buckeye Jail), filed with the Clerk of the Court on October 31, 2005 a "Petition For Writ Of Habeas Corpus By A Person In State Custody Pursuant To 28 U.S.C. § 2254 (Non-Death Penalty)" (Document #1) (Petition). Petitioner has not paid the five dollar ($5.00) filing fee, but has filed a certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" (Application To Proceed) with the Petition.
The five dollar ($5.00) filing fee is set pursuant to 28 U.S.C. § 1914(a).
PAYMENT OF FILING FEE
Rule 3.5(b) of the Local Rules of Civil Procedure (LRCiv) requires that "[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed [in forma pauperis] on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit." If a petitioner has in excess of twenty-five dollars ($25.00) in his inmate account, LRCiv 3.5(b) requires payment of the five dollar ($5.00) filing fee.
Petitioner's Application To Proceed indicates that Petitioner has the sum of twenty-six dollars and thirty-five cents ($26.35) in his inmate account. Accordingly, Petitioner's Application To Proceed will be denied pursuant to LRCiv 3.5(b), and Petitioner will be given thirty (30) days from the filing date of this Order to pay the five dollar ($5.00) filing fee.
RULE 41(b) WARNING
Petitioner is warned that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (District Court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED:
(1) That Petitioner's "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" filed with his Petition is DENIED;
(2) That Petitioner SHALL HAVE thirty (30) days from the filing date of this Order to pay the five dollar ($5.00) filing fee;
(3) That the Clerk of the Court is DIRECTED to enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to pay the five dollar ($5.00) filing fee within thirty (30) days from the filing date of this Order;
(4) That a clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Petitioner;
(5) That at all times during the pendency of this action, Petitioner SHALL IMMEDIATELY ADVISE the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date, except that if Petitioner has been released from custody, the notice should so indicate. The notice shall not include any motions for any other relief. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.