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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DENNIS W. SOMERVILLE,

Petitioner,

v.

WARDEN MARTINEZ, et al.

Respondents.

Case No. C06-5363 RJB/KLS

REPORT AND

RECOMMENDATION TO DENY

APPLICATION TO PROCEED

IN FORMA PAUPERIS

Noted for: August 11, 2006

This case has been referred to United States 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 (CCA-FCC). 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). 

Case 3:06-cv-05363-RJB Document 4 Filed 07/18/06 Page 1 of 2
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REPORT AND RECOMMENDATION

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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

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 has submitted an affidavit reflecting that he earns net wages of $58.00 per

month at CCA-FCC and currently has the sum of $102.50 in an account to his credit at CCA-FCC. 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 August 11,

2006, as noted in the caption. 

Dated this 18th day of July, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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