(HC) Jones v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. JONES, Case No. 1:22-cv-01470-HBK (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PLAINTIFF’S MOTION TO PROCEED IN 13 v. FORMA PAUPERIS SHOULD NOT BE DENIED 14 B.M. TRATE, Warden-USP Atwater, (Doc. No. 2) 15 Respondent. FOURTEEN-DAY DEADLINE 16 17 18 Petitioner Gregory C. Jones, a federal prisoner proceeding pro se, filed a petition for writ 19 of habeas corpus under 28 U.S.C. § 2241 on November 14, 2022. (Doc. No. 1) Petitioner 20 accompanied the filing of his petition with an application to proceed in forma pauperis (“IFP”). 21 (Doc. No. 2). Petitioner attaches an Inmate Inquiry in support of his IFP application, which 22 reflects a balance of $1,469.27 in Petitioner’s inmate trust fund account as of November 8, 2022. 23 (Doc. No. 2). This amount well exceeds the $5.00 filing fee for this action. Petitioner is therefore 24 ordered to show cause why he meets the indigence requirement for eligibility to proceed IFP. 25 Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 26 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). While IFP applicants need not be 27 “destitute” a showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 28 U.S. 331, 339–40 (1948). Petitioner must allege indigence “with some particularity, definiteness 1 and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 2 | 1981). 3 Petitioner has more than adequate funds to pay the $5.00 filing fee for this action in full. 4 | While a balance of $1,469.27 appears modest, it is sizeable considering Petitioner does not incur 5 || expenses in prison for necessities such as sustenance, housing, and medical care. Further 28 6 | U.S.C. § 1915(b)(1) mandates the Court to assess an initial filing fee of 20% of the greater of the 7 || average monthly deposits to the prisoner’s account, or the average monthly balance for the six- 8 | month period preceding the filing of the action, whichever is greater. Here, Petitioner’s six- 9 | month average balance was $2585.36. (Doc. No. 2 at 4). Thus, the $5.00 filing fee is well below 10 | the 20% the Court must assess under 28 U.S.C. § 1915(b)(1). Petitioner shall show cause why he 11 | cannot afford to pay the filing fee and is entitled to proceed IFP. 12 Accordingly, it is ORDERED: 13 Within fourteen days from receipt of this Order, Petitioner shall either: (1) withdraw his 14 | motion to proceed in forma pauperis and direct officials at Atwater U.S. Penitentiary to submit 15 | the $5.00 filing fee to the Clerk of Court; or (2) show cause why he meets the indigence 16 | requirement to proceed in forma pauperis. 17 | Dated: _ November 21, 2022 Mihaw. □□ fares Zackte 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28