(HC) Murphy v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONRELL D. MURPHY, Case No. 1:20-cv-01300-DAD-SAB-HC 12 Petitioner, ORDER FOR PETITIONER TO PROVIDE EXPLANATION IN SUPPORT OF 13 v. PETITIONER’S SECOND APPLICATION TO PROCEED IN FORMA PAUPERIS 14 RALPH DIAZ, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On September 3, 2020, Petitioner commenced the instant proceeding by filing a petition 20 for writ of habeas corpus in the Sacramento Division of the United States District Court for the 21 Eastern District of California. (ECF No. 1). On September 11, 2020, the petition was transferred 22 to this Court. (ECF No. 4). 23 On September 15, 2020, the undersigned issued findings and recommendation to deny 24 Petitioner’s application to proceed in forma pauperis. The undersigned found that Petitioner is 25 financially able to pre-pay the entire $5.00 filing fee to commence this habeas action because 26 “Petitioner’s certified inmate account statement indicates that he currently has an available sum 27 of $104.30 on account to his credit at the California Correctional Institution. Further, the average monthly balance of Petitioner’s account is $181.70, and during the past six months the average 1 monthly deposits to Petitioner’s account is $168.39.” (ECF No. 7 at 2).1 The findings and 2 recommendation also stated that Petitioner may notify the Court “[s]hould Petitioner have 3 additional information to provide the Court, or should his available balance change by the time 4 he receives this order.” (Id.). 5 The findings and recommendation was served on Petitioner and contained notice that any 6 objections were to be filed within twenty-one days of the date of service of the findings and 7 recommendation. (ECF No. 7 at 3). On October 16, 2020, the Court extended the deadline to file 8 objections to the findings and recommendation to November 8, 2020. (ECF No. 11). On October 9 25, 2020, the Court received Petitioner’s second application to proceed in forma pauperis. (ECF 10 No. 12). 11 Petitioner’s second application to proceed in forma pauperis reflects that Petitioner had 12 $0 in his account on October 19, 2020, despite an average monthly balance of $216.76 and 13 average monthly deposits of $150.08 during the past six months. (ECF No. 12 at 2). The Court 14 notes that on September 15, 2020, when the findings and recommendation was issued, 15 Petitioner’s account contained $73.43. (Id. at 6). Despite multiple $100 and $250 deposits being 16 made to Petitioner’s account during May through August, there have been no further deposits 17 since August 14, 2020. (Id. at 4–6). Additionally, despite only having two “sales” expenses of 18 $9.95 on May 13, 2020 and $6 on July 15, 2020, there was a “sales” expense of $44.48 on 19 October 13, 2020 when Petitioner had an account balance of $45.27, effectively depleting his 20 account. (Id.). 21 As noted in the findings and recommendation, “the Court has the authority to consider 22 any reasons and circumstances for any change in Petitioner’s available assets and funds. See 23 Collier v. Tatum, 722 F.2d 653, 656 (11th Cir. 1983) (district court may consider an unexplained 24 decrease in an inmate’s trust account, or whether an inmate’s account has been depleted 25 intentionally to avoid court costs).” (ECF No. 7 at 2). As set forth above, from the face of the 26 second application to proceed in forma pauperis and Petitioner’s trust account statement, there is 27 an unexplained stop in deposits and what appears to be an intentional depletion of funds. 1 | Therefore, the Court requires Petitioner to provide an explanation regarding the lack of deposits 2 | since August 14, 2020, the “sales” expense of $44.48 on October 13, 2020, and why Petitioner is 3 | unable to pay the $5.00 filing fee when Petitioner’s account contained $73.43 when the findings 4 | and recommendation was issued on September 15, 2020. 5 IT IS HEREBY ORDERED that Petitioner’s explanation in support of his second 6 | application to proceed in forma pauperis shall be filed within TWENTY-ONE (21) DAYS from 7 | the date of service of this order. 8 9 IT IS SO ORDERED. OF. a Se 10 | Dated: October 26, 2020 _ ef 4 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28