Handy v. Warden

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 MICHAEL DWAYNE HANDY, Case No. 23-cv-02243-JST 8 Plaintiff, ORDER SUA SPONTE GRANTING 9 v. EXTENSION OF TIME TO PAY FILING FEE OR FILE IN FORMA 10 WARDEN, PAUPERIS APPLICATION 11 Defendant. — 12 — 13 Petitioner, a state prisoner currently housed at Kern Valley State Prison, filed this petition 14 for a writ of habeas corpus pursuant to either 28 U.S.C. § 2254 or 28 U.S.C. § 2241 . ECF No. 1. 15 On May 9, 2023, Petitioner was informed that this action was deficient because Petitioner had 16 neither paid the $5.00 filing fee nor filed an application to proceed in forma pauperis. ECF No. 5. 17 Petitioner was informed that the failure to respond by May 6, 2023, would result in dismissal of 18 this action and the fee becoming due immediately. ECF No. 5. On May 24, 2023, Petitioner filed 19 a pleading objecting to the assessment of a filing fee, arguing that he is not required to pay a filing 20 for this action because (1) the Prison Litigation Reform Act (“PLRA”)’s filing fee obligation does 21 not apply to actions brought pursuant to 28 U.S.C. §§ 2241 , 2254, 2255, as these are not civil 22 actions within the meaning of the PLRA, citing to In re Phillips, 133 F.3d 770 (10th Cir. 1998), 23 and (2) the First Amendment’s prohibition on laws abridging the right of the people to petition the 24 government for a redress of grievances prohibit the levying of filing fees. ECF No. 7. 25 Petitioner is incorrect that he need not pay a filing fee. 28 U.S.C. § 1914 requires the clerk 26 of each district court to require parties instituting a habeas corpus action to pay a $5 filing fee, and 27 allows the district court to require advance payment of fees. 28 U.S.C. § 1914 (a), (c). 28 U.S.C. § 1 U.S.C. § 1915(a), but requires prisoners who proceed in forma pauperis to ultimately pay the full 2 filing fee, whether paid in advance or in installments over time, 28 U.S.C. § 1915 (b). Petitioner is 3 correct that 28 U.S.C. § 1915 (b) does not apply to petitions for a writ of habeas corpus. 4 That 28 U.S.C. § 1915 (b) does not apply merely means that should Petitioner be granted 5 || leave to proceed in forma pauperis, he need not pay the $5 filing fee. However, any party filing a 6 || petition for a writ of habeas corpus is still required to pay a $5 filing fee to initiate the action, 28 7 U.S.C. § 1914 , unless he is entitled to proceed in forma pauperis, 28 U.S.C. § 1915 (a). 8 Accordingly, to proceed with this action, Petitioner must either pay the $5 filing fee or he must 9 submit an application to proceed in forma pauperis. If Petitioner is granted leave to proceed in 10 || forma pauperis, Petitioner may proceed in this action without paying the filing fee. If Petitioner is 11 denied leave to proceed in forma pauperis, he must pay the $5 filing fee before this action can 12 proceed. The Court sua sponte GRANTS Petitioner an extension of time to February 16, 2024, to 5 13 either pay the $5 filing fee or file an application to proceed in forma pauperis. Petitioner’s failure 14 || to abide by the deadline set forth in this order will result in dismissal of this action without 3 15 prejudice for failure to pay the filing fee without further notice to Petitioner. a 16 IT IS SO ORDERED. 17 || Dated: January 4, 2024 . JON S. TIGA 19 United States District Judge — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —