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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PHILLIP GONZALES SANCHEZ,

Petitioner,

v.

DOUG WADDINGTON, 

Respondent.

Case No. C06-5019 FDB/KLS

REPORT AND

RECOMMENDATION TO DENY

APPLICATION TO PROCEED

IN FORMA PAUPERIS

Noted for March 10, 2006

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. Petitioner is an inmate at Stafford Creek Correction Center. He has

filed a petition for habeas corpus under 42 U.S.C. § 2254 and an application to proceed in forma

pauperis. (Dkt. #1). Because petitioner appears to have sufficient funds with which to pay the $5.00 court

filing fee, the undersigned recommends 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. See 28 U.S.C. § 1915(a). However, the court has broad discretion in

denying an 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 a

prisoner is able to pay the initial expenses required to commence a lawsuit. See Temple v. Ellerthorpe, 586

Case 3:06-cv-05019-FDB Document 5 Filed 02/16/06 Page 1 of 2
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REPORT AND RECOMMENDATION

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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).

By requesting the court to proceed in forma pauperis, petitioner is asking the government to incur

the filing fee because he allegedly is unable to afford the costs necessary to proceed with his petition for

habeas corpus. Petitioner denies in his in forma pauperis application that he is employed and states that he

only received a $50.00 gift in 2005 from his sister, from which amount 55% was deducted by DOC. The

prison trust account statement (Dkt. #3) indicates that the plaintiff does have a job at SCCC and that he

receives $176.41 in average monthly receipts. Further, his prison trust account statement indicates that he

still has an average spendable balance of $79.20. (Dkt. #5). Although these amounts may not be large,

given the minimal filing fee required to proceed with this action ($5.00) and the fact that petitioner is

currently employed, it is not unreasonable to expect him to pay that fee from the funds available to him in

his prison trust account. 

CONCLUSION

Because it is reasonable to expect petitioner to incur the costs to proceed with his petition, the

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

the undersigned also recommends that the court order petitioner to pay the required filing fee within

thirty (30) days of the court's order. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule 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 set this matter for consideration on March 10,

2006, as noted in the caption. 

Dated this 15th day of February, 2006.

/s/ Karen L. Strombom 

KAREN L. STROMBOM

United States Magistrate Judge

Case 3:06-cv-05019-FDB Document 5 Filed 02/16/06 Page 2 of 2