SECTION IV: FORMA PAUPERIS PETITIONS The authority for allowing parties to proceed in forma pauperis is found at 28 U.S.C. § 1915, which provides: (a) 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 and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress. Section 1915(d) provides for the dismissal of these cases in certain limited circumstanstances: (d) The court may request an attorney to represent any such person unable to employ or malicious. The decision whether or not to allow the plaintiff to proceed in forma pauperis under § 1915(a) should be based solely on financial considerations and should not be based on the merits of the claim. 38 However if the 38. See, e.g., Aldisert Report, (supra, Section II,E, n. 27) at Part IV, C(2) (1977 ed.), Sinwell v. Shapp, 536 F.2d 15,18 (3d Cir. 1976); Mitchell v. Beaubouef, 581 F.2d 412 (5th Cir. 1978); Taylor v. Gibson, 529 F.2d 709, 714 n. 6 (5th Cir. 1976); Watson v. Ault, 525 F.2d 886, 890-91 (5th Cir. 1976); Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975); Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir. 1970), cert denied 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970); Bennett v. action is frivolous, leave should be granted and then the action may be dismissed without service of process under 28 U.S.C. § 1915(d).39 The Aldisert Report, supra, Section II, E, n. 27 at 86 (1977), includes a form "Declaration in Support of Request to Proceed in Forma Pauperis," which enables the court to obtain basic information concerning the plaintiff's financial status. The recent act authorizing the use of unsworn declarations under penalty of perjury, 28 U.S.C. § 1746, is particularly helpful in prisoner cases since prisoners frequently complain that they have limited access to a notary public. In an appropriate case an order may be entered requiring the prison records officer to submit a cer tificate stating the balance in the plaintiff's prison account. The Supreme Court decision construing section 1915(a) is Adkins v. Dupont, 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 44 (1948). In that case the district court and the court of appeals had both denied plaintiff's motion for leave to appeal in forma pauperis. The plaintiff's affidavit stated she was a seventy-four Passic, 545 F.2d 1260 (10th Cir. 1976); Fulwood v. Clemmer, 295 F.2d 171, 172 n. 1 (D.C. Cir. 1961); Martin v. U.S., 273 F.2d 775, 778 (D.C. Cir. 1960). See concurring opinion of Mr. Justice Douglas in Cruz v. Hauck, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217 (1971). 39. See Sinwell, Taylor, Watson, Forester, Bennett, Martin, note 38 supra. In the Seventh Circuit, after the petitioner is granted leave to file the complaint, it cannot be dismissed until the summons has issued in accordance with Rule 4(a) of the Federal Rules of Civil Procedure. Nichols v. Schubert, 499 F.2d 946 (7th Cir. 1974). However, the court may deny leave to proceed in forma pauperis if the action is frivolous or malicious. Wartman v. Branch 7, Civ. D., Cty. Ct., Milwaukee Cty., Wis., 510 F.2d 130 (7th Cir. 1975). 40. The affidavit or declaration should be signed by the plaintiff himself. Dother v. Rodman, 361 U.S. 307, 43 S.Ct. 374, 67 L.Ed.2d 670 (1923); Covington v. Cole, 528 F.2d 1365, 1371 (5th Cir. 1976). 41. Aldisert Report (1977 ed.), supra, Section II,E, n. 27. year old widow; her estimated costs of the appeal record would be approximately $4,000. She stated that all she had was a home appraised at $3,450; that her only source of income was rent from parts of her home; and that without such income she would not be able to purchase the necessities of life. The district court appeared to have denied her request because neither the other plaintiffs nor her lawyers had filed affidavits of poverty. The Supreme Court vacated the orders denying leave to appeal in forma pauperis. in forma pauperis. The Court recognized the role of the court's discretion in disposing of forma pauperis requests under section 1915(a) and stated: We know of few more appropriate occasions for use of a court's discretion than one in which a litigant, asking that the public pay costs of his litigation, either carelessly or wilfully and stubbornly endeavors to saddle the public with wholly uncalled for expense. So here, the court was not required to grant the petitioner's motion if she wrongfully persisted in including in the appeal record masses of matter plainly irrelevant to the issues raised on appeal. 335 U.S. at 337, 69 S.Ct. at 88, 93 L.Ed. at 47. In discussing the sufficiency of the affidavit, the Court noted, "[W]here the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation." 335 U.S. at 339, 69 S.Ct. at 89, 93 L.Ed. at 48. However, in that case, since the affidavit estimated that the costs would be $4,000 and that the plaintiff could not pay or secure $4,000, the Court was justified in looking further to see if the cost really should have been $4,000. The Court discussed the standard to be applied in passing upon a request under section 1915(a): We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty "pay or give security for the costs and still be able to provide" himself and dependents "with the necessities of life." To say that no persons are entitled 335 U.S. at 339, 69 S.Ct. at 89, 93 L.Ed. at 49. The Court further held that the refusal or inability of other plaintiffs to file forma pauperis affidavits should not prevent the plaintiff from being granted forma pauperis status: This does not mean that one of several costs. 335 U.S. at 340, 69 S.Ct. at 89, 93 L.Ed. at 49. Although Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), was a habeas corpus action, the court's discussion of the standards for determining whether to grant a forma pauperis application is relevant to civil rights actions: [W]e do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond 516 F.2d at 824. The court reversed the order denying leave to proceed in forma pauperis and remanded with directions to grant leave to proceed without prepayment of fees and costs or security therefor. Braden v. Estelle, 428 F.Supp. 597 (S.D. Tex. 1977) held that the plaintiff can be required to pay a portion of the court costs: As emphasized throughout this Order, the purpose of the "partial payment" requirement is to curb the indiscriminate filing of prisoner civil rights actions by prompting inmates to "confront the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?" 428 F.Supp. at 596. Marks v. Calendine, F.Supp. (N.D. W. Va., filed June 13, 1978) (76-283-E) required the losing pro se plaintiff, who had been granted leave to proceed in forma pauperis, to pay both his costs and those of the defendants who obtained a jury verdict in their favor. The court found that the plaintiff did not bring the action in good faith. |