O'Rorke v. Porcaro (In re Porcaro)
| Decision Date | 21 March 2016 |
| Docket Number | Adversary Proceeding No. 11–04010–CJP,Bankruptcy Case No. 10–45391–CJP,BAP NO. MW 15–026 |
| Citation | 547 B.R. 484 |
| Parties | Peter J. Porcaro, Debtor. Michael O'Rorke and Beth O'Rorke, Plaintiffs-Appellees, v. Peter J. Porcaro, Defendant-Appellant. |
| Court | U.S. Bankruptcy Appellate Panel, First Circuit |
Heineman,Michael Joseph, Pearl, Scott R., for Plaintiffs–Appellees.
ORDER REGARDING MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
Before the Panel is the Motion for Leave to Proceed on Appeal In Forma Pauperis (the "IFP Motion"), filed by Peter J. Porcaro ("Porcaro"). For the reasons discussed below, the IFP Motion is granted, and the appeal is dismissed, in part.
On April 27, 2015, Porcaro timely appealed, pro se, an order denying his motion for summary judgment, and another order granting the cross-motion for summary judgment (collectively, the "Orders") which Michael O'Rorke and Beth O'Rorke (the "O'Rorkes") filed in the adversary proceeding they brought under 11 U.S.C. § 523(a)(6)
. On that day and the next, Porcaro also filed two Official Forms 17A, Notice of Appeal and Statement of Election. In these three filings, Porcaro did not indicate that he was electing to have the United States District Court consider his appeal.
On April 30, 2015, Porcaro filed an Amended Official Form 17A, this time indicating that he was electing to have the United States District Court consider his appeal. On May 6, 2015, the Panel entered an order pursuant to 28 U.S.C. § 158(c)(1)(A)
, denying Porcaro's election as untimely (the "Denial of Election"). On May 13, 2015, Porcaro filed a Motion to the BAP for Reconsideration and Affidavit (the "Reconsideration Motion"), asking the Panel to reconsider the Denial of Election. On May 14, 2015, the Panel entered an order denying the Reconsideration Motion.
The appeal proceeded before the Panel and on February 3, 2016, the Panel entered a Judgment affirming the Orders (the "February 2016 Judgment"). In the accompanying, 24–page opinion (the "February 2016 Opinion"), the Panel explained why the bankruptcy court correctly gave preclusive effect to the O'Rorkes' pre-bankruptcy, state court judgment.1
On March 1, 2016, Porcaro filed an appeal of the February 2016 Judgment, the IFP Motion, and his affidavit in support of the IFP Motion (the "Affidavit"). In the IFP Motion, Porcaro identifies the issues on appeal as: (1) whether the Panel "committed an error of law or an abuse of discretion" when it affirmed the bankruptcy court's grant of summary judgment against him; and (2) whether the Panel "committed an error of law or an abuse of discretion when it denied [his] motion to transfer the appeal to be heard by the United States District Court...."
requires that a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court. Fed. R.App. P. 24(a)(1). Fed. R.App. P. 6(b)(1)(C) provides that where, as here, an "appeal is from a bankruptcy appellate panel, the term ‘district court,’ as used in any applicable rule, means ‘appellate panel.’ " Fed, R, App. P. 6(b)(1)(C). Accordingly, the Panel acts on requests to proceed in forma pauperis before forwarding an appeal to the First Circuit. Heghmann v. Indorf (In re Heghmann), 324 B.R. 415, 416 n. 1 (1st Cir. BAP 2005).
"The federal in forma pauperis statute, ... codified as 28 U.S.C. § 1915
, is designed to ensure that indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citation omitted). "Toward this end, [28 U.S.C.] § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit." Id. That statute provides, in relevant part:
(1) 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)
. The Panel has held that, pursuant to 28 U.S.C. § 1915(a), it has authority to consider a debtor's request to proceed in forma pauperis on appeal to the U.S. Court of Appeals for the First Circuit. In re Heghmann, 324 B.R. at 420.
An application to proceed in forma pauperis "must conform to the requirements of 28 U.S.C. [§] 1915(a)
... and include, in affidavit form, the [applicant's] representations of poverty, a statement of the case, and his belief that he is entitled to redress." Coppedge v. United States, 369 U.S. 438, 444, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Thus, Fed. R.App. P. 24(a)(1) provides that the in forma pauperis applicant must attach to his motion an affidavit that shows his "inability to pay or to give security for fees and costs"; "claims an entitlement to redress"; and "states the issues [he] intends to present on appeal." Fed. R.App. P. 24(a)(1).
Under 28 U.S.C. § 1915(a)
, "the commencement or filing of the suit depends solely on whether the affiant is economically eligible." Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976). "The only determination to be made by the court under [§] 1915(a), therefore, is whether the statements in the affidavit satisfy the requirements of poverty." Id. (citations omitted). The applicant bears the burden of proving entitlement to in forma pauperis relief by a preponderance of the evidence. In re Stickney, 370 B.R. 31, 39 (Bankr.D.N.H.2007) (citations omitted). A petition to proceed in forma pauperis is granted or denied at the discretion of the court. See 28 U.S.C. § 1915 ; Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337, 69 S.Ct. 85, 93 L.Ed. 43 (1948).
"Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at 324, 109 S.Ct. 1827
. To prevent such abuses, 28 U.S.C. § 1915(e) (formerly 28 U.S.C. § 1915(d) ) "authorizes federal courts to dismiss a claim filed in forma pauperis if the allegation of poverty is untrue, or if satisfied that the action [or appeal] is frivolous or malicious." Id. (internal quotations omitted); see also 28 U.S.C.1915(e)(2)(A) -(e)(2)(B)(i). Because a 28 U.S.C. § 1915(e) dismissal is "an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations." Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).
"The brevity of § 1915
( [e] ) and the generality of its terms have left the judiciary with the not inconsiderable tasks of fashioning the procedures by which the statute operates and of giving content to § 1915 ( [e] )'s indefinite adjectives." Neitzke, 490 U.S. at 324–25, 109 S.Ct. 1827 (citation omitted). Courts of appeals have, with the Supreme Court's approval, "generally adopted as formulae for evaluating frivolousness under § 1915 ( [e] ) close variants of the definition of legal frivolousness which [the Supreme Court] articulated in ... Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967)." Id. at 325, 109 S.Ct. 1827. In Anders, the Supreme Court "stated that an appeal on a matter of law is frivolous where ‘[none] of the legal points [are] arguable on their merits." Id. (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396 ). Thus, for example, the Eighth Circuit stated "[a] federal court will not grant leave ... to proceed [in forma pauperis ] ... if it is clear that the proceeding which [the applicant] proposes to conduct is without merit and will be futile."
Gilmore v. United States, 131 F.2d 873, 874 (8th Cir.1942)
(citations omitted).
Perhaps the most explicit guidance regarding the proper procedures for implementing 28 U.S.C. § 1915(e)
and the contours of the term, "frivolous," is set forth in Watson, supra. There, the Fifth Circuit stated that "where the [in forma pauperis ] affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question presented under [§] 1915( [e] ) of whether the asserted claim is frivolous or malicious." Watson, 525 F.2d at 891. With respect to the determination of frivolousness under subsection (e), the Fifth Circuit joined those courts which have adopted the test articulated in Anders v. California, supra, and defined "a frivolous appeal as being one without arguable merit." Id. at 892. The Watson court explained:
The keystone of [28 U.S.C. § 1915(e)
] dismissal is the court's exercise of discretion.... The focal point of that discretion is the court's duty to satisfy itself that the action is frivolous or malicious. In making that determination, unless it appears as a matter of law, it necessarily follows that the court must ascertain whether there is a factual basis for the petitioner's suit....
. The Fifth Circuit further instructed that "the district court may employ flexibility and creativity in exercising its discretion under" 28 U.S.C. § 1915(e). Id. It cautioned, however, "[i]n some cases, even under the broadest and most liberal standard of pleading, the plaintiff may state no cause of action." Id. at 891–92. In such instances, "the district court would be correct in dismissing, after filing, such a claim as being facially frivolous under" 28 U.S.C. § 1915(e). Id. at 892. Additionally,...
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