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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ANDRE J. CLAYBORN,

Plaintiff,

v.

DEPARTMENT OF CORRECTIONS,

Defendant.

Case No. C05-5304RBL

REPORT AND

RECOMMENDATION TO DENY

APPLICATION TO PROCEED IN

FORMA PAUPERIS

Noted for September 30, 2005

This case has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. §

636(b)(1) and Local MJR 3 and 4. Plaintiff has filed a civil rights complaint under 42 U.S.C. § 1983 and

an application to proceed in forma pauperis. To file a complaint and initiate legal proceedings, plaintiff

must pay a filing fee of $250.00 or file a proper application to proceed in forma pauperis. Because

plaintiff has failed to respond to the court’s order to show cause, the undersigned recommends the court

deny his application. 

DISCUSSION

The court may permit indigent litigants to proceed in forma pauperis upon completion of a proper

affidavit of indigency. See 28 U.S.C. § 1915(a). However, the court has broad discretion in denying an

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REPORT AND RECOMMENDATION

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application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied,

375 U.S. 845 (1963). Several district courts have ruled that denial of in forma pauperis status is not

unreasonable when the plaintiff is able to pay the initial expenses required to commence a lawsuit. See

Temple v. Ellerthorpe, 586 F.Supp. 848 (D.R.I. 1984); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.

1977); U.S. ex rel. Irons v. Com. of Pa., 407 F.Supp. 746 (M.D.Pa. 1976); Shimabuku v. Britton, 357

F.Supp. 825 (D.Kan. 1973), aff'd, 503 F.2d 38 (10th Cir. 1974); Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.

1974).

On May 2, 2005, the clerk received plaintiff's complaint and application to proceed in forma

pauperis. (Dkt. #1). On June 14, 2005, the court found plaintiff’s application to be deficient and ordered

him to cure that deficiency by no later than July 14, 2005, or show cause why this matter should not be

dismissed. (Dkt. #6). Local Rule CR 10(f) requires parties to notify the court within ten days of a change

of address. On June 29, 2005, the clerk received a notice from plaintiff listing a new mailing address. (Dkt.

#8). 

As of July 15, 2005, plaintiff had not responded to the court’s order to show cause. Because it was

unclear from the change of notice address whether plaintiff had actually received a copy of that order, the

court re-sent a copy of it to him at the address set forth in his notice of change of address. The court also

set a new deadline of August 15, 2005, by which plaintiff had to file a response. To date, however, he still

has not done so. 

CONCLUSION

Because plaintiff has failed to respond to the court’s order to show cause regarding his deficient

application to proceed in forma pauperis, the undersigned recommends the court deny that application. 

Accordingly, the undersigned also recommends the court dismiss plaintiff’s complaint unless he pays the

required $250.00 filing fee within thirty (30) days of the court’s order. 

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 72(b),

the parties shall have ten (10) days from service of this Report and Recommendation to file written

objections thereto. 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 Fed. R. Civ. P. 72(b), the clerk is directed to set this matter for consideration on September

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23, 2005, as noted in the caption. 

Dated this 30th day of August, 2005.

A

Karen L. Strombom

United States Magistrate Judge

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