Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

POWELL v. HOOVER

March 7, 1997

DAVID B. POWELL, Plaintiff
v.
KAY F. HOOVER and HONORABLE EDGAR B. BAYLEY, Defendants



The opinion of the court was delivered by: MCCLURE

 March 7, 1997

 BACKGROUND :

 On February 26, 1997, plaintiff David B. Powell, an inmate at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, initiated this action with the filing of a complaint pursuant to 28 U.S.C. § 1983. Powell claims that child custody proceedings in the Court of Common Pleas of Cumberland County violate his various rights under the Constitutions of the United States and the Commonwealth of Pennsylvania. Powell is proceeding pro se and has filed a motion to proceed in forma pauperis.

 Before the court is the complaint for initial review and the motion to proceed in forma pauperis.

 DISCUSSION :

 A letter from Powell to the Clerk of Court indicates that he forwarded the complaint for docketing (the complaint is dated February 11, 1997) and was informed that he needed to remit the filing fee or apply to proceed in forma pauperis. See Letter dated February 20, 1997 (undocketed; the court will direct docketing for purposes of potential appellate review). Powell also notes that he does not believe that 28 U.S.C. § 1915 applies. For some reason and in despite of this assertion, Powell forwarded both the filing fee and a motion to proceed in forma pauperis.

 I. APPLICATION OF SECTION 1915

 We first address the question of the applicability of the federal in forma pauperis statute. Powell states in his letter, "Though I don't believe 28 U.S.C.A. § 1915 applies in this case simply because I am incarcerated, in light of the fact that the case does not directly involve my incarceration and/or the officials involved in my incarceration, I'll go deeper in debt and borrow the $ 150.00 and get my funds back from this corrupt government in the future; ..." Letter of February 20, 1997. However unartfully stated and apparently by accident, Powell actually points to an ambiguity in the new version of § 1915.

 On April 26, 1996, President Clinton signed into law an appropriations measure for the remainder of the fiscal year 1996 which included the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996). The PLRA includes substantial amendments to § 1915, particularly with respect to actions brought by prisoners. The relevant provision now reads:

 
Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.

 28 U.S.C. § 1915(a)(1) (emphasis added). Despite the repeated references to the "person" who makes affidavit, Congress inserted the phrase "such prisoner" with respect to the required statement of assets. PLRA § 804(a)(1)(C). See also Leonard v. Lacy, 88 F.3d 181, 183 (2d Cir. 1996)(recognizing language as probably erroneous by inserting "[sic]" in quotation from PLRA). However, a fair reading of the entire section is that it is not limited to prisoner suits.

 First, a separate part of the statute provides directly for the application to proceed in forma pauperis and the statement of assets by prisoners, § 1915(a)(2), and § 1915 always has governed in forma pauperis status generally, without being limited to prisoner suits. See generally McTeague v. Sosnowski, 617 F.2d 1016, 1019 (3d Cir. 1980)("Since 1892, when the predecessor to 28 U.S.C. § 1915 was enacted, the doors of the federal courts have been open to the poor and the rich alike."; footnote omitted). *fn1" This reading is consistent with both the apparent purpose of the statute and its history.

 When appropriate, Congress was very clear about provisions intended to apply to prisoner suits only, § 1915(a)(2), (b), (f)(2), (g), (h), but did not specify that the entirety of the new version of § 1915 was to apply only to prisoner litigation. The appearance of the phrase "such prisoner," without more, cannot reasonably be interpreted as effecting such a sweeping change. See also Floyd v. U.S. Postal Service, 105 F.3d 274, 275-277 (6th Cir. 1997)(concluding that non-inmates may proceed in forma pauperis under the new version of § 1915(a)(1), based on "legislative history,.. basic axioms of statutory interpretation, and ... a little common sense").

 Moreover, regardless of the subject matter of the suit, Powell is a "prisoner" for purposes of § 1915:

 
As used in this section, the term 'prisoner' means any person incarcerated in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

 28 U.S.C. § 1915(h). Nothing in this subsection requires that the case for which a prisoner seeks in forma pauperis status be related to the fact of incarceration or conditions of confinement, and Powell is a "prisoner" for purposes of the statute.

 Such being the case, Powell is required under § 1915(a)(2) to submit a certified copy of his trust fund account statement for the 6-month period immediately preceding the filing of the complaint. No such statement was filed with Powell's motion to proceed in forma pauperis. Although Powell has paid the initial filing fee, the motion is not thereby rendered moot because (1) he indicates that he intends to recover the fee and (2) any further filing fee, as for an appeal or petition for a writ of certiorari, would not have to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.