Westine v. United States Probation Department

250 F. App'x 813

Opinion

MEMORANDUM

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The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status.

Appellant John G. Westine, Jr. appeals from the district court’s order denying his request to file a petition for writ of mandamus, dated July 7, 2006, without prepayment of the filing fee. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s denial for abuse of discretion, see, e.g., Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998), and we vacate and remand.

The district court denied appellant’s motion to file without prepayment of the filing fee for three reasons: (1) inadequate showing of indigency; (2) failure to authorize disbursements from prison trust account to pay filing fee; and (3) failure to provide certified copy of trust fund statement for the prior six months, apparently applying the requirements of 28 U.S.C. § 1915(a)(2) to the application. However, because appellant’s petition sought to vacate as void ab initio a criminal judgment entered against appellant, the provisions of 28 U.S.C. § 1915(a)(2) do not apply.

Accordingly, we vacate and remand for the district court to allow appellant to proceed in forma pauperis unless it finds other reasons for the denial.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.