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28 ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DAVID Mc CUISTION,

Petitioner,

v.

WASHINGTON STATE ATTORNEY

GENERAL’S OFFICE AND Dr. HENRY

RICHARDS,

Respondents.

Case No. C06-5329RBL

REPORT AND

RECOMMENDATION

NOTED FOR:

AUGUST 4th, 2006

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and local Rules MJR 3 and 4.

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner indicates a monthly income of between $550 and $600 dollars. (Dkt. # 4). He

refuses to provide a financial accounting and claims he is exempt from having to provide such an

accounting. (Dkt. # 4). The court recommends the motion for in forma pauperis status be

DENIED.

FACTS

Petitioner is a resident at the Washington Special Commitment Center. (Dkt. # 1). Petitioner

filed a deficient motion to proceed in forma pauperis and the clerks’ office sent him a letter listing

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28 ORDER- 2

the deficiencies. (Dkt. # 1 and 2). Petitioner responded by letter and filed another motion to

proceed in forma pauperis. (Dkt. # 3 and 4). In his letter petitioner states “I believe that the Ninth

Circuit case of Page v. Torrey, 201 F3d 1136 states that Civil Detainee’s [sic] are not prison inmates

and therefore are not subject to financial reporting for purposes of application to file IN FORMA

PAUPERIS.” (Dkt. # 3). 

DISCUSSION

Petitioner indicates he makes between $550 and $ 600 per month. (Dkt. # 4). He indicates

no persons depend upon him for support. (Dkt. # 4). Petitioner refused to provide any accounting

as to his finances and cites to Page v. Torrey, 201 F. 3rd 1136 for the proposition he need not

provide such an accounting. (Dkt. # 3). 

The district court may permit indigent litigants to proceed in forma pauperis upon

completion of a proper affidavit of indigence. 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 litigant 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 in the present case, petitioner is asking

the government to incur the filing fee because he is allegedly unable to afford the costs necessary to

proceed with his petition for habeas corpus. Given the minimal fees required to proceed with this

action ($5.00 filing fee) and the stream of income available to the petitioner, it is not unreasonable to

deny petitioner's application for in forma pauperis status.

While not an inmate, petitioner has the obligation to provide enough information for the court

to determine if he is entitled to in forma pauperis status. Petitioner has not provided any information

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28 ORDER- 3

as to how his monthly income of $550 to $ 600 is spent. He has not shown any entitlement to in

forma pauperis status. (Dkt. # 1 through 4). The court concludes that petitioner makes adequate

income to pay the full filing fee in this case. His motion should be DENIED. A proposed order

accompanies this Report and Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. 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 Rule

72(b), the clerk is directed to set the matter for consideration on August 4th, 2006, as noted in the

caption.

The clerks’ office is directed to remove Dkt. # 1 and 4 from the court’s calendar. 

Dated this 17th, day of July, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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