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Ricky Penton v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 27, 2012

RICKY PENTON,
PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's application for leave to proceed in forma pauperis (Doc. 2).

Under 28 U.S.C. § 1915(a), the court may grant in forma pauperis status to parties who submit an affidavit showing that the party is unable to pay the filing fee. In this case, the filing fee is $5.00. Petitioner has submitted a copy of his prison trust account statement reflecting that, as of June 21, 2012, he had $224.01 in available funds in his prison trust account. Given this balance, the court cannot find that petitioner is unable to pay the $5.00 filing fee. Therefore, petitioner's application for leave to proceed in forma pauperis should be denied and petitioner should be required to pre-pay the filing fee before this action can proceed.

Based on the foregoing, the undersigned recommends that petitioner's motion for leave to proceed in forma pauperis (Doc. 2) be denied and that petitioner be required to pre-pay the $5.00 filing fee.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20120727

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