Powell v. Hoover

• Decision Date: 07 March 1997
• Docket Number: No. 4:CV-97-0305.,4:CV-97-0305.
• Citation: 956 F.Supp. 564
• Parties: David B. POWELL, Plaintiff, v. Kay F. HOOVER and Honorable Edgar B. Bayley, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

956 F.Supp. 564

David B. POWELL, Plaintiff, v. Kay F. HOOVER and Honorable Edgar B. Bayley, Defendants.

No. 4:CV-97-0305.

United States District Court, M.D. Pennsylvania.

March 7, 1997.

David B. Powell, Plaintiff, pro se.

MEMORANDUM

McCLURE, District Judge.

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 42 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).¹ 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 be paid if the motion were to be granted and this court did not certify that an appeal was not taken in good faith. Sec. 1915(a)(3).

The next question is the review of the motion to proceed in forma pauperis and of the complaint. The Third Circuit has described the process as follows:

District courts in this Circuit use a two-step analysis in evaluating in forma pauperis complaints. First, a judge evaluates the plaintiff's affidavit of poverty, construing it as a motion to proceed in forma pauperis, and determines whether the plaintiff is financially eligible to proceed without prepayment of fees. Second, the district judge assesses the complaint to determine whether it is legally frivolous. Roman [v. Jeffes], 904 F.2d [192,] 194 n. 1 [(3d Cir.1990)]. If it is not, the district judge authorizes issuance of the summons and service of the complaint. (There is no reason to think that the procedure will be any different under the new version of § 1915, although the financial and substantive considerations will differ.) ...

Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 455 n. 4 (3d Cir.1996). Since the Third Circuit was reviewing an order of a magistrate judge dated April 5, 1995, the new provisions of § 1915 were not at issue, and the parenthetical statement regarding the amended version of the statute is properly viewed as obiter dicta.

The relevant provision of the pre-amendment version of the statute read:

The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

Former 28 U.S.C. § 1915(d). As amended and renumbered, the provision now reads:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —

(A) the allegation of poverty is untrue; or

(B) the action or appeal —

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2) (emphasis added). The earlier version of § 1915 did not contain the "at any time" language, and that language is a reason to think that the procedure will be different under the new version of § 1915. Specifically, "at any time" would include a time prior to granting the application to proceed in forma pauperis. Moreover, the fact that the filing fee has been paid does not affect the authority of the court to dismiss the case, based on the introductory language of the last-quoted provision. See also 28 U.S.C. § 1915A(a) (requiring court to conduct initial review of complaint by prisoner against governmental entities, officials and/or employees as soon as practicable, including before docketing if feasible).

For these reasons, we find that: (1) § 1915 is applicable; (2) Powell is a "prisoner" for purposes of § 1915; (3) the payment of the filing fee does not render moot the motion to proceed in forma pauperis; and (4) the court may review the complaint for merit without ruling on the motion to proceed in forma pauperis.

II. MERITS OF POWELL'S COMPLAINT

The next question is whether the allegations of Powell's complaint fall into one of the categories which would require dismissal, i.e. frivolous or malicious, failing to state a claim upon which relief can be granted, or seeking monetary relief from a defendant with immunity. Since no money damages are sought, see complaint at 6-7, ad damnum clause, the latter category clearly is inapplicable.

With respect to the standard for finding the complaint frivolous or malicious, Congress did not change the language of the statute in this regard. We therefore continue to apply the same standard which applied before the PLRA was enacted.

Courts were authorized under former § 1915(d) to dismiss a claim filed in forma pauperis "if satisfied that the action is frivolous or malicious." Neitzke v. Williams, 490 U.S. 319, 324, 109...