DEBTOR CASE NO. 97-60339




VS. ADV. NO. 97-6918





This matter is before the Court on the Motion of the plaintiff to proceed in forma pauperis, filed herein on July 10, 1997. The plaintiff filed a Complaint on June 25, 1997, alleging that he is a creditor of the debtor, and that the potential award of damages to the plaintiff for violation of his civil rights is nondischargeable pursuant to 11 U.S.C. '523(a)(2), (4), (6) or (15). This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b). The plaintiff has alleged that this is a non-core proceeding; however, determination of the dischargeability of a debt is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).

Proceedings in forma pauperis are governed by 28 U.S.C. '1915. That subsection provides in pertinent part as follows:

(a)(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 a 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.

(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.

The plaintiff has already submitted an affidavit as required by paragraph (a)(1). He has not, however, submitted the certified copy of his trust fund account statement (or its institutional equivalent) required by paragraph (a)(2).

The statute in its current form is the result of the Prison Litigation Reform Act, Pub.L. No. 104-134, ''801-10, 110 Stat. 1321 (1996), which changed the scheme for processing requests for pauper status. The prisoner's financial status, rather than the merits of his case, is now the primary object of the court's focus. In response to this change, the Sixth Circuit Court of Appeals issued an Administrative Order by Chief Judge Martin, In re Prison Litigation Reform Act, 105 F.3d 1131, which sets out how in forma pauperis applications will be handled by the district courts pursuant to the requirements of 28 U.S.C. '1915. The Sixth Circuit further clarified its interpretation of those requirements in its opinion in McGore v. Wigglesworth, 114 F.3d 601 (1997).

Before addressing the specific directives of the Administrative Order, however, this Court must consider whether it has authority to decide an in forma pauperis motion. This question has arisen in other bankruptcy courts in the same context as the within matter, the filing of an adversary proceeding by an impoverished creditor who seeks to have a debt declared nondischargeable. In In re Melendez, 153 B.R. 386 (Bkrtcy.D.Conn. 1993), the court framed the question as follows:

Whether I can enter an order on the plaintiff's motion turns on whether the motion is a proceeding that could be referred to me by the district court and that depends on whether the absence of bankruptcy courts from the definition of a 'court of the United States' in '1915(a) creates an exception to the authority generally conferred upon bankruptcy judges by 28 U.S.C. '' 151 and 157.

. . . . . . .

Section 151 contemplates that Congress may limit the authority of bankruptcy judges, and it has done so in several instances, most notably in '157(b), (c) and (d), which establishes the core/non-core distinction, and authorizes and in some instances requires the district court to withdraw matters. Although '1915 authorizes courts of the United States to waive filing fees, there is nothing in that section which suggests that it was intended to eliminate the authority of bankruptcy judges empowered by '' 151 and 157.

At pages 387-388.

Further, in In re McGinnis, 155 B.R. 294 (Bkrtcy.D.N.H. 1993), the court stated:

[S]everal courts have ruled that bankruptcy judges have the power to grant in forma pauperis petitions in all proceedings except the filing of the original bankruptcy petition. (Cites omitted).

These courts have relied on the general power of courts of the United States to grant waivers of fees for indigent persons under 28 U.S.C. '1915. ....

Section 1930(a) of 28 U.S.C. provides that the only limitation to the bankruptcy court's power to waive filing fees concerns the fee for debtors to commence a bankruptcy case. This statute provides, in relevant part, 'notwithstanding section 1915 of this title, parties commencing a case under Title 11 shall pay .... filing fees.' ....

In contrast, section 1930(b), which concerns the assessment of additional fees for cases under Title 11, contains no reference to 28 U.S.C. '1915 and does not contain any language suggesting that filing fees assessed under sub-section (b) would be non-waivable.

At page 295. The court went on to discuss the effect of 28 U.S.C. '157:

Thus, in delegating the authority to the bankruptcy court to hear title 11 cases, the district court also delegates its authority to entertain petitions and motions necessary to fully and fairly adjudicate these cases, including petitions to proceed in forma pauperis under 28 U.S.C. '1930(b) or (c). [FN1]

FN1. The whole discussion of 'what an Article I court can or can not do' is somewhat misleading in that the only court which has received a grant of jurisdiction in bankruptcy cases under the present statutes is the Article III district court. 28 U.S.C. '1334. .... Congress has proclaimed that the bankruptcy judges of a district court shall 'constitute a unit of the district court to be known as the bankruptcy court for that district.' 28 U.S.C. '151. The statute further provides that each bankruptcy judge 'as a judicial officer of the district court' may exercise authority conferred by a discretionary referral order from the district judge under certain restrictions and procedures. 28 U.S.C. '157.

At page 296. See also In re Brooks, 175 B.R. 409 (Bkrtcy.S.D.Ala. 1994).

Addressing this issue from the perspective of the indigent petitioner, the Court looks to the source of such a petitioner's right, if any, to proceed in bankruptcy court. In Tripati v. United States Bankruptcy Court for the Eastern District of Texas, 180 B.R. 160 (E.D.Texas 1995), the district court developed the following rationale:

In United States v. Kras, the Supreme Court made the broad statement that section 1915(a) was rendered inapplicable in bankruptcy cases. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). The Court, however, is of the opinion that Kras is distinguishable from the instant case, .... In Kras, a bankrupt debtor desired to proceed through discharge without payment of any fees under 28 U.S.C. '1915(a). (Cite omitted.) The District Court held that section 1915(a) was not available to a bankrupt debtor .... (Cite omitted.)

Justice Blackmun, writing for the Court, upheld the District Court's finding that section 1915(a) did not apply and held that the requirement that the prescribed fees be paid prior to discharge did not violate due process because bankruptcy was not a right, but a privilege. (Cite omitted.) .... [T]he Court distinguished the position of a debtor entering voluntary bankruptcy from the situation where an impoverished defendant is forced into court to answer a lawsuit against him. (Cite omitted.)

This Court finds that the facts and rationale existing in Kras are inapposite to the situation presented by Tripati. .... Tripati is not a bankrupt debtor seeking discharge in bankruptcy. Rather, Tripati is a creditor who, much like the indigent defendant discussed in Kras, is called upon by his debtor who has sought bankruptcy protection, to bring his claims in bankruptcy court or face the loss of those claims. ....

The Court is of the opinion that to deny an indigent person the right to defend in bankruptcy his interest as a creditor merely because he cannot afford to pay the fees would amount to an unconstitutional deprivation of due process and denial of equal protection. (Cite omitted.) The Constitution demands that a party be afforded an opportunity to be heard before his claims are disposed of. (Cite omitted.)

At pages 162-163. Based on the foregoing, this Court concludes that bankruptcy judges not only have authority to decide in forma pauperis motions, but that not to do so would be an unconstitutional denial of access to the courts by indigent petitioners.

This Court therefore looks to the Administrative Order for direction as to how the plaintiff must proceed in this matter. It provides that if an inmate files a complaint and seeks pauper status, he must either file Form 4 from the Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit which contains the identical information requested in Form 4. This Court is of the opinion that the affidavit submitted by the plaintiff here is an acceptable alternative to Form 4.

The Administrative Order further provides that if an inmate not paying the full filing fee fails to provide an affidavit of indigency or trust account statement, the court shall notify the prisoner of the deficiency and the prisoner shall have thirty days from the date of the deficiency order to correct the error or pay the full filing fee. This Court therefore orders that the plaintiff herein submit his trust account statement within thirty days from the entry of this order. Once the complaint, affidavit, and trust account statement have been filed, the court will issue the fee assessment and conduct the screening procedure as required by 28 U.S.C. ''1915(b) and (e)(2), respectively, and as set out in sections III and IV of the Administrative Order.

Entered this ____ day of ___________________, 1997.

By the Court -







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Kevin L. Shehee