December 9, 2002
REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS
This case has been referred to Magistrate Judge J. Kelley Arnold pursuant to 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Petitioner in this case is an inmate at Washington Corrections Center. Petitioner has filed an application to proceed in forma pauperis. (Dkt. #1) Because petitioner's application indicates he has an average spendable balance of $1,123.27 in his prison account, I recommend that the court deny the application.
The district court may permit indigent litigants to proceed in forma pauperis upon completion of 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. Ellerthorp, 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. Britten, 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. However, on September 27, 2002, petitioner had an average spendable balance of $1,123.27 in his prison bank account. In addition, the application account statement indicates Mr. Chapple earns approximately $55.00/month at the institution. Given the minimal fees required to proceed with this action ($5.00 filing fee) and the funds available to the petitioner, it is not unreasonable to deny petitioner's application for in forma pauperis status.
Because it is reasonable to expect petitioner, given his financial status, to incur the costs to proceed with his petition, I recommend that the Court deny his application for in forma pauperis status. Therefore, I also recommend 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.