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Ward v. Evans

August 20, 2010

CRAIG ALLEN WARD, PETITIONER,
v.
M. C. EVANS, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING PETITIONER'S "FOURTH" MOTION TO PROCEED IN ) FORMA PAUPERIS (DOC. 18)

ORDER CLARIFYING DUE DATE FOR ACTING WARDEN PAYMENT OF THE $5.00 FILING FEE

Deadline for Payment of Filing Fee:

NO LATER THAN FOURTEEN (14) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER

ORDER INFORMING PETITIONER THAT DISMISSAL WILL RESULT IF THE FILING FEE IS NOT PAID

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's "Fourth" motion to proceed in forma pauperis (doc. 18), filed on July 2, 2010.

I. Background

The petition was transferred to this Court on April 12, 2010, from the District of Northern California, action no. CV 10-662-JF-(PR) (doc. 9), with an application to proceed in forma pauperis (doc. 5) pending at the time of the transfer. Petitioner filed another motion to proceed in forma pauperis on April 15, 2010 (doc. 11), which was denied by this Court by order filed on May 5, 1020, because the documentation attached to Petitioner's application demonstrated that Petitioner was able to afford the costs of the action. (Doc. 15.) The order was served by mail on Petitioner on May 5, 2010. It specifically stated:

Petitioner is ORDERED to pay the five dollar ($5.00) filing fee within thirty (30) days of the date of service of this order. Failure to follow this order may result in a recommendation that the Petition be dismissed pursuant to Local Rule 11-110. (Id.)

By order filed May 24, 2010 (doc. 19), the Court denied a renewed motion to proceed in forma pauperis (doc. 16) that had been filed on May 17, 2010, and reminded Petitioner that the filing fee was due to be paid on June 8, 2010. When the filing fee was not paid, findings and recommendations were filed by the Magistrate Judge to dismiss the petition.

It then was discovered that the Clerk failed to serve on Petitioner the order denying Petitioner's renewed motion. The findings and recommendations were vacated, and the clerk served on Petitioner the order denying the renewed motion to proceed in forma pauperis on July 28, 2010.

II. Clarification of Due Date for Filing Fee

The order vacating the findings and recommendations directed that Petitioner be served with the order denying Petitioner's renewed motion. The order denying Petitioner's renewed motion in turn reminded Petitioner that pursuant to the Court's previous order of May 5, 2010 (doc. 15: 21-22), the deadline for payment of the filing fee was thirty days after service of the Court's order of May 5. The docket reflects that the order of May 5, 2010, was served on Petitioner at the address listed as Petitioner's on the docket, and the order was not returned in the mail.

Independently of any clerical error, Petitioner failed to pay the filing fee or seek an extension of time within the thirty-day period after May 5, 2010. Petitioner did not pay the filing fee, and ...


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