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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ANDREW M. FLORES,

Petitioner,

v.

WARDEN MARTINEZ, et al,

Respondents.

Case No. C06-5114RBL

REPORT AND

RECOMMENDATION TO DENY

APPLICATION TO PROCEED

IN FORMA PAUPERIS

Noted for May 5, 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 the Florence Correctional Center, located at

Florence, Arizona. He has filed a petition for writ of habeas corpus pursuant to 28 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

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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 states in his in forma pauperis application that he is currently employed, with

“gross” wages of $60.00 per month and “net” wages of $55.00 per month. In addition, the latest entry on

the prison trust account statement petitioner submitted with his application indicates a current balance of

$22.67 as of February 15, 2006. While the undersigned recognizes that the funds to which petitioner has

access may not be great, given the fact that a prisoner’s basic needs are provided for while incarcerated and

the minimal filing fee required to proceed with this action ($5.00), it is not unreasonable to expect

petitioner to pay that fee from those funds. 

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. 

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 May 5, 2006, as

noted in the caption. 

Dated this 10th day of April, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05114-RBL Document 3 Filed 04/10/06 Page 2 of 2