(HC) Murphy v. Diaz, No. 1:2020cv01300 - Document 17 (E.D. Cal. 2020)

Court Description: ORDER VACATING 7 & 15 Findings and Recommendations; DENYING AS MOOT 2 First Application to Proceed In Forma Pauperis, and GRANTING 12 Second Application to Proceed In Forma Pauperis, signed by Magistrate Judge Stanley A. Boone on 12/4/2020. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONRELL D. MURPHY, Petitioner, 12 13 v. 14 RALPH DIAZ, 15 Case No. 1:20-cv-01300-DAD-SAB-HC ORDER VACATING FINDINGS AND RECOMMENDATIONS, DENYING AS MOOT FIRST APPLICATION TO PROCEED IN FORMA PAUPERIS, AND GRANTING SECOND APPLICATION TO PROCEED IN FORMA PAUPERIS Respondent. (ECF Nos. 2, 7, 12, 15) 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. (ECF No. 7). The undersigned found that 25 Petitioner was financially able to pre-pay the entire $5.00 filing fee to commence this habeas 26 action because “Petitioner’s certified inmate account statement indicates that he currently has an 27 available sum of $104.30 on account to his credit at the California Correctional Institution. 28 Further, the average monthly balance of Petitioner’s account is $181.70, and during the past six 1 1 months the average monthly deposits to Petitioner’s account is $168.39.” (ECF No. 7 at 2).1 The 2 findings and recommendation also stated that Petitioner may notify the Court “[s]hould 3 Petitioner have additional information to provide the Court, or should his available balance 4 change by the time he receives this order.” (Id.). The findings and recommendation was served on Petitioner and contained notice that any 5 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 25, 2020, the Court received Petitioner’s second application to proceed in 9 10 forma pauperis. (ECF No. 12). On November 13, 2020, the Court received Petitioner’s 11 explanation in support of his second application to proceed in forma pauperis in response to the 12 Court’s order. (ECF Nos. 13, 14). Petitioner’s certified inmate account statement reflects that 13 Petitioner had $0 in his account on October 19, 2020, despite an average monthly balance of 14 $216.76 and average monthly deposits of $150.08 during the past six months. (ECF No. 12 at 2). 15 Despite multiple $100 and $250 deposits being made to Petitioner’s account during May through 16 August, there have been no further deposits since August 14, 2020. (Id. at 4–6). Additionally, 17 despite only having two “sales” expenses of $9.95 on May 13, 2020 and $6 on July 15, 2020, 18 there was a “sales” expense of $44.48 on October 13, 2020 when Petitioner had an account 19 balance of $45.27, effectively depleting his account. (Id.). On November 19, 2020, the the undersigned issued findings and recommendation to deny 20 21 Petitioner’s second application to proceed in forma pauperis because Petitioner did not explain 22 the stop of deposits to his account and the undersigned was skeptical of Petitioner’s explanation 23 that the October 13, 2020 sales expense of $44.48 that effectively depleted his account was an 24 innocent purchase of food and hygiene items. (ECF No. 15). On December 3, 2020, Petitioner filed objections to the findings and recommendation. 25 26 (ECF No. 16). In light of the additional explanations contained in the objections, the undersigned 27 28 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 1 will vacate the findings and recommendations issued on September 15 and November 19, 2020, 2 and authorize Petitioner to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Accordingly, IT IS HEREBY ORDERED that: 3 4 1. The September 15, 2020 and November 19, 2020 findings and recommendations (ECF Nos. 7, 15) are VACATED; 5 6 2. Petitioner’s first application to proceed in forma pauperis (ECF No. 2) is DENIED AS MOOT; and 7 8 3. Petitioner’s second application to proceed in forma pauperis (ECF No. 12) is GRANTED. 9 10 11 IT IS SO ORDERED. 12 Dated: December 4, 2020 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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