United States v. Commonwealth of Pennsylvania

• Decision Date: 12 December 1969
• Docket Number: Civ. A. No. 69-2787.
• Parties: UNITED STATES of America ex rel. James ROBERTS v. COMMONWEALTH OF PENNSYLVANIA and Edward J. Hendrick, Supt.
• Court: U.S. District Court — Eastern District of Pennsylvania

312 F. Supp. 1

UNITED STATES of America ex rel. James ROBERTS v. COMMONWEALTH OF PENNSYLVANIA and Edward J. Hendrick, Supt.

Civ. A. No. 69-2787.

United States District Court, E. D. Pennsylvania.

December 12, 1969.

James Roberts, in pro. per.

MEMORANDUM

BODY, District Judge.

Plaintiff brings this action for a declaratory judgment under 28 U.S.C. §§ 2201, 2202. Presently before the Court for consideration is plaintiff's motion for leave to proceed in forma pauperis.

On November 25, 1967 the plaintiff was arrested and later indicted for murder, voluntary manslaughter and involuntary manslaughter.¹ He was tried in the Quarter Sessions Court of Philadelphia County, Pennsylvania, in September of 1968 and was convicted of second degree murder. Thereafter plaintiff filed his own post-trial motions for arrest of judgment, new trial and change of his court-appointed counsel.

On June 6, 1969, when plaintiff was called before the state court for sentencing, he again pressed his motion for change of counsel. The sentencing judge refused to grant the motion and ruled that plaintiff must present it to the judge initially appointing his counsel. The sentencing proceeding was thereupon continued.

On June 10, 1969, plaintiff received a letter and memorandum stating that on June 5, 1969 his motion for new trial had been denied.

Plaintiff's affidavit in support of his motion to proceed in forma pauperis reads as follows:

"Let it be known in this Honorable Court that plaintiff desires to submit this foregoing motion in forma pauperis according to the provisions defined in Title 28, U.S.C.A. Sec. 1915, that said be allowed to proceed without fees required by law in veiw sic of his indigency."

The affidavit is legally insufficient for a number of reasons. First, it fails to state the facts concerning the affiant's poverty with any degree of particularity, definiteness or certainty. See United States v. Coor, 213 F.Supp. 955, 956 (D. D.C.1963), rev'd on other grounds, 117 U.S.App.D.C. 87, 325 F.2d 1014 (1963); Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). Second, it does not comply with the requirements of 28 U. S.C. § 1915(a) concerning the content of such an affidavit. It was the purpose of Congress in imposing these requirements not only to insure the availability of the federal judicial system to indigent persons, but also to guard against abuse of the in forma pauperis procedure by subjecting those who falsely represent their eligibility to the threat of a perjury prosecution. These purposes are not served by such an affidavit as plaintiff has here presented, and accordingly the Court holds that the affidavit is insufficient to entitle the plaintiff to proceed in forma pauperis.

As an additional ground for its denial of plaintiff's present motion, the Court finds that plaintiff's claim is frivolous within the meaning of 28 U.S. C. § 1915(d). It is well settled that a...