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UNITED STATES EX REL. LINCOLN IRONS K 1379 v. PENN

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


February 7, 1976

UNITED STATES OF AMERICA ex rel. LINCOLN IRONS K 1379, Petitioner
v.
COMMONWEALTH OF PENNSYLVANIA, Respondent

Hubert L. Teitelbaum, District Judge

The opinion of the court was delivered by: TEITELBAUM

MEMORANDUM AND ORDER

HUBERT L. TEITELBAUM, District Judge

 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). In an affidavit, petitioner states that he has $170.40 in his prison account.

 Our only concern at this nascent stage of the proceedings is to determine whether petitioner is financially unable to pay the $5.00 fee otherwise necessary to commence a habeas proceeding. See, 28 U.S.C. § 1915(a); Watson v. Ault, 525 F.2d 886 (5th Cir. 1976). Indigency sufficient to qualify under § 1915(a) does not require penniless destitution. Adkins v. E. I. DuPont de Nemours, 335 U.S. 331, 93 L Ed 43, 69 S. Ct. 85 (1948). However, we feel that requiring petitioner to pay the $5.00 fee to commence this action is not unreasonable. We emphasize the word commence because it is solely the commencement of this action which is before us.

 In the recent case of Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), the court was faced with a habeas corpus petitioner who had been denied leave to proceed in forma pauperis by the district court because his prison account contained $50.07 and he was receiving a stipend of $7.50 per week. The district court was of the opinion that requiring him to pay the $5.00 filing fee would not deny him access to the courts.

 In reversing the lower court, the Third Circuit Court of Appeals noted the complexity of the legal issues raised in Souder's petition, and then observed that such issues could not be litigated on the existence of a fund of $50.07 supplemented by a weekly $7.50 stipend.

 The decision of the court in Souder could be read to suggest that, in passing on in forma pauperis requests, the court should look to the complexities of the legal issues presented in a petition or complaint. However, the language of § 1915(a) speaks in terms of authorizing "the commencement, prosecution or defense of any suit . . . without prepayment of fees and costs . . . ." In cases such as the one sub judice, we look solely to whether a petitioner possesses assets reasonably in excess of the cost to commence the action. If he does, then in forma pauperis standing is denied without prejudice to a subsequent request should he be faced with further costs or fees. This approach is consistent with § 1915(a) and not contrary to Souder v. McGuire, supra.

 An appropriate order denying leave to proceed in forma pauperis will be entered.

 R. Dixon Herman / United States District Judge

 Dated: February 9th, 1976.

 ORDER

 AND NOW, this 9th day of February 1976, IT IS ORDERED that petitioner's request for leave to proceed in forma pauperis be and is hereby denied.

 The denial is without prejudice to a later request in the event that further costs or fees arise in this action.

 R. Dixon Herman / United States District Judge

19760207

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