beating. Thus, this paragraph is not specific enough to state a claim. See text accompanying note 12 supra.
Paragraph nineteen apparently complains that prison officials took blood samples from Move members for disease-prevention or other health purposes. This action is within the permissible discretion of prison authorities for the health and safety of inmates and does not constitute a constitutional violation.
Paragraph twenty complains about the refusal of the state parole board to parole two Move convicts at the earliest possible time. There is no right to immediate parole upon serving the minimum sentence. Furthermore, the appropriate way to seek release is through a habeas corpus action by the prisoners, rather than a civil suit by the Move Organization.
Paragraph twenty-one alleges that a Move member was "kidnapped off the streets of Rochester, N.Y. by federal . . . agents" as a result of the warrant mentioned in paragraph seven. Just as paragraph seven fails to state a claim, so does paragraph twenty-one.
The final two paragraphs contain general language about a "blatant plot" and "diabolical conspiracy." This language is too vague on its own, and does not help repair the lack of specificity existing elsewhere in the complaint.
Thus, every part of the Supplemental Complaint must be dismissed as "frivolous" within the meaning of 28 U.S.C. § 1915.
III. PROCEEDINGS IN FORMA PAUPERIS
Upon filing of a proper affidavit, a federal court may allow a "person" to proceed in forma pauperis.
See Fed. R. App. Pro. 24(a) and Form 4. A motion to proceed in forma pauperis and accompanying affidavits have been filed on behalf of the sole plaintiff Move Organization ("Move"). These papers present the court with the question of whether an organization is a "person" within the meaning of 28 U.S.C. § 1915, and if so, what constitutes a proper affidavit.
In the few cases touching on these questions, the federal courts take a variety of positions.
On one extreme is Chief Judge Bazelon's dissent in S.O.U.P. v. FTC, 146 U.S. App. D.C. 66, 449 F.2d 1142, 1143-45 (D.C. Cir. 1971). Chief Judge Bazelon took the positions that a corporation is a "person" within the meaning of 28 U.S.C. § 1915, and that the judge must determine indigence by examining only the organization's resources, rather than by piercing the corporate veil. He reasoned that the law governing construction of statutes requires "that the term 'person' should ordinarily be taken to 'include corporations . . . as well as individuals,'"
and that the legislative history of 28 U.S.C. § 1915 contained no indication that Congress meant otherwise. 449 F.2d at 1143-44. Furthermore, indigency should be determined on the basis of an affidavit from an organizational officer because the alternative (requiring affidavits from each member) would disregard the legally separate identity of the corporation, impose unnecessary administrative burdens on the court, and discourage useful litigation by certain corporations. Id. at 1144-45.
On the other extreme is Honolulu Lumber Co. v. American Factors, Ltd., 265 F. Supp. 578, 580-81 (D. Hawaii 1966), aff'd on other grounds, 403 F.2d 49 (9th Cir. 1968). Chief Judge Pence observed that from its initial enactment in 1892 until amendment in 1959, the in forma pauperis act applied only to a "citizen," and that only natural persons are citizens.
"Citizen" was changed to "person" to allow in forma pauperis appearances by aliens.
Thus, it appeared, "that Congress never intended by this single word change in 1959 to extend this privilege to a whole new class of artificial persons." 265 F. Supp. at 580. Furthermore, assuming arguendo that a corporation could be a "person," Judge Pence held the affidavit of poverty insufficient because he viewed the stockholders of the closely-held corporations as the real beneficiaries of the lawsuit and there was "no reason why the true beneficiaries should be allowed to stand behind a corporate veil and thereby be excused from paying the legal costs of a suit which the corporation they controlled decided to institute." Id. at 581.
Between these extremes are cases and commentary suggesting that artificial entities may be "persons" in appropriate circumstances.
These sources rely on policy reasons in looking at factors such as whether the entity is non-profit, whether it is formed for a public purpose, whether the organization's members may reap "substantial personal financial benefit" from the litigation, Harlem River Consumers, 71 F.R.D. at 96, and whether the litigation has a "public interest aspect."
It is unclear whether these authorities would look to identical or similar factors in evaluating the sufficiency of the affidavit.
I reject this middle course, at least as a method of construction of "person." First, it confuses the definition of "person" with that of poverty.
Second, it is both vague and elaborate, thus confronting the courts with a threshold ruling which is unnecessarily burdensome to administer. Third, many of the factors are difficult to determine,
and it is unclear how to weigh them if they conflict.
Finally, although the policy analysis behind these factors may be a valid method of common-law rulemaking, it is inappropriate as a method of construing this statute.
It gives the word "person" a meaning which cannot reasonably be found in the intent of Congress. See note 20 supra and accompanying text.
The better reasoned approaches are those of Judge Bazelon, dissenting in S.O.U.P., that "person" includes the entities listed in 1 U.S.C. § 1, and Judge Pence, in Honolulu Lumber, that Congress intended to include only natural persons. I must choose between these two contradictory holdings. Because all authorities agree that the sole purpose for extending in forma pauperis status to "persons" was to include indigent aliens,
the rule as stated in Honolulu Lumber is the better reading of the legislative history. Accordingly, I agree that an artificial entity cannot be a "person" within the meaning of 28 U.S.C. § 1915(a). Thus the sole plaintiff, Move Organization, may not proceed in forma pauperis.
Even if plaintiff were a "person," the filed affidavits are insufficient to support forma pauperis status. They do not list Move's resources, nor is there an indication that the affiant is authorized to speak for the Organization.
Therefore, plaintiff's motion to proceed in forma pauperis is denied.
IV. PRO SE APPEARANCE
The filings in this case are signed only by a lay person "Pro Se for the Move Org."
This raises the question whether an organization must be represented by an attorney.
In general, a party may plead and conduct its case in person or by counsel. See 28 U.S.C. § 1654. Because organizational personality is a legal fiction, appearance in propria persona is impossible. Thus, the courts have repeatedly held that corporations and other organizations must be represented by counsel.
The purpose of this rule is "the protection of the courts and the administration of justice.
The frivolous pleadings in this case, see notes 1 & 2 supra, show why the courts require such protection. I see no reason to create an exception for an organization attempting to prosecute a civil action in its own name.
AND NOW, this 10th day of January, 1983, it is hereby ORDERED that:
1. The motion to proceed in forma pauperis is DENIED.
2. The complaint is DISMISSED as frivolous and duplicative.