United States v. Slater

96 F.R.D. 53, 1982 U.S. Dist. LEXIS 16871
District Court, D. Delaware·Decided November 3, 1982·No. Civ. A. No. 82-195·Published·Cited by 3 cases

Opinion

OPINION

CALEB M. WRIGHT, Senior District Judge.

Defendant has filed a motion to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a) and Fed.R.App.P. 24(a), on appeal from an adverse judgment entered by this Court on July 8, 1982. Contrary to Fed.R. App.P. 24(a), which requires initial application with the District Court, defendant’s motion was made directly to the United States Court of Appeals for the Third Circuit.1 Notes of Advisory Committee on Appellate Rule 24. Nonetheless, defendant’s motion will be treated as if properly filed with this Court.

This litigation stems from an investigation by the Internal Revenue Service (“IRS”) into defendant’s tax liability for the years 1979 and 1980. The IRS summoned the defendant to appear before the plaintiff revenue officer, and to produce documents and letters relating to his tax liability. Defendant failed to respond to the summons and the plaintiffs sought an order from this Court directing defendant to comply. At that time, defendant represented himself pro se before the Court in these matters, but did not request permission to proceed in forma pauperis. On July 8, 1982, this Court entered a judgment against defendant ordering him to respond to the Internal Revenue summons. 545 F.Supp. 179. The defendant seeks to proceed in forma pauperis on appeal from this Court’s adverse decision.

An appeal may be taken in forma pauperis if the appellant is unable to pay costs and the appeal is taken in good faith. 28 U.S.C. § 1915(a); Fed.R.App.P. 24(a). Inability to pay costs does not require absolute destitution. Adkins v. E.I. du Pont de Nemours & Co., Inc., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948). The central question is whether a party can afford court costs without undue hardship. See id. at 339-340, 69 S.Ct. at 89-90. Appellate review is made in good faith whenever an appellant seeks review of an issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). It follows, therefore, that a motion to proceed in forma pauperis must be denied if either the allegation of poverty is untrue, not substantiated, or the Court believes that the question to be raised on appeal is frivolous. Serna v. O’Donnell, 70 F.R.D. 618, 620-21 (W.D.Mo.1976).

The right to proceed in forma pauperis generally should be granted where the required affidavit of poverty is filed. Lockhart v. D’Urso, 408 F.2d 354, 355 (3d Cir.1969). The mere assertion of poverty, however, does not serve as a substitute for indigency. Ward v. Werner, 61 F.R.D. 639, 640 (M.D.Pa.1974). Although this Court must be careful to insure the availability of the federal judicial system to truly indigent persons, it also must guard against the abuse of the in forma pauperis procedure. United States v. Pennsylvania, 312 F.Supp. 1, 2 (E.D.Pa.1969). Indeed, those who falsely represent their eligibility may be subject to perjury prosecution. Adkins v. E.I. du Pont de Nemours & Co., Inc., 335 U.S. at 338, 69 S.Ct. at 88.

[55]*55Defendant’s statement of impecuniosity is set forth in paragraph 4 of his motion, and in an accompanying affidavit. Paragraph 4 provides:

I do not have any dollars to pay anything with, nor do I know where or how to find any, and therefore [sic] cannot comply with demands for fees, costs and security denominated in “dollars”.

The accompanying affidavit provides in relevant part:

1. I am and expect to be unable to pay the costs and bear the burden of extended and continued expenses of proceedings in the Circuit Court of Appeals for the 3rd Circuit...
2. ... I have no property which can be converted to money.... My liabilities nearly equals [sic] or exceeds [sic] my money assets and available means.... I do not have any dollars with which to pay; I am unable to comply with the demand for fees, costs, or securities denominated in dollars; that it will work an extreme hardship on myself and my family; and that to deny me leave to proceed in forma pauperis will prevent me from providing for myself and my dependents the necessities of life... .

Defendant’s affidavit is legally insufficient for several reasons. First, it fails to state the facts concerning the affiant’s poverty with any degree of particularity, definiteness, or certainty. United States v. Pennsylvania, 312 F.Supp. 1, 2 (E.D.Pa.1969); compare Form 4, Appendix Fed.R. App.P. 24. This deficiency alone, however, would not necessarily preclude the Court from granting defendant’s motion.2 It is the additional arguments that the defendant presents in his brief in support of his motion that are fatal to his assertion of impecuniosity.

The defendant essentially claims that he is impecunious because he has no “dollars”.3 More specifically, defendant claims he is actually bankrupt because he has no “dollars” with which to pay his debts.4 Defendant claims he has no dollars because, according to the defendant, there are no such thing as “dollars”.5 Defendant claims that there are only Federal Reserve Notes, which are not equivalent to dollars.6 Federal Reserve Notes can only discharge debt, not pay it, and therefore defendant is impecunious because he cannot pay his debts.7

Defendant’s spurious and semantical arguments concerning the term “dollar” demonstrates that defendant is not impecunious as is required by 28 U.S.C. § 1915(a) and Fed.R.App.P. 24(a). Defendant will not be denied access to the federal courts if his motion is dismissed. See Ward v. Werner, supra at 640. The federal courts, contrary to defendant’s belief, will accept his “Federal Reserve Notes” as a medium of payment to cover his court costs on appeal.8

Even assuming arguendo that defendant is impecunious, both Section 1915(a) and Rule 24(a) gives this Court discretion to deny a motion to proceed in forma pauperis on appeal if, in the view of this Court, the appeal is not taken in good faith. Adkins v. E.I. du Pont de Nemours & Co., Inc., supra. Appellate review is not made in good faith when a litigant seeks review of issues that are frivolous when viewed from an objective standard. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct.

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United States v. Slater, 96 F.R.D. 53, 1982 U.S. Dist. LEXIS 16871 (D. Del. 1982).

96 F.R.D. 53 (United States v. Slater) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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