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Harvey Mack Leonard v. Audrey K. King

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


January 30, 2013

HARVEY MACK LEONARD, PETITIONER,
v.
AUDREY K. KING, RESPONDENT.

ORDER

Petitioner is a civil detainee without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

A petitioner seeking a writ of habeas corpus either must pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or request leave of court to proceed in forma pauperis, 28 U.S.C. § 1915(a).

Petitioner, relying on Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000), argues that he may proceed in forma pauperis without making any showing regarding his ability to pay the filing fee because civil detainees are not "prisoners" under the Prison Litigation Reform Act. Dckt. No. 2. Petitioner's reliance on Page is misplaced. In Page, the United States Court of Appeals for the Ninth Circuit held that civil detainees are not prisoners under the PLRA and therefore are not required to comply with the PLRA's requirement that prisoners submit a copy of their trust fund account statement and exhaust administrative remedies. 201 F.3d at 1140. Although petitioner is not a prisoner under the PLRA, he is still required to submit an affidavit that demonstrates he is unable to pay the filing fee or give security for fees and costs. See 28 U.S.C. § 1915(a)(1).

Petitioner has not submitted a proper application for leave to proceed in forma pauperis, nor has he paid the filing fee.

Within 30 days from the day this order is served, petitioner may submit either the filing fee or the application required by section 1915(a). Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis.

So ordered.

20130130

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