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Capalbo v. Hollingsworth

United States District Court, Third Circuit

December 19, 2013



RENÉE MARIE BUMB, District Judge.

This habeas matter comes before the Court upon Petitioner's submission of his application to prosecute his civil rights challenges in forma pauperis. See Docket Entry No. 9. For the reasons detailed below, Petitioner's application will be denied, and he will be directed to show cause as to why he qualifies for in forma pauperis. As set forth below, Petitioner may be permitted to prosecute his civil action: (a) upon prepayment of the filing fee (or upon duly showing cause as to why he qualifies for in forma pauperis status in that action); and (b) upon submission of an amended pleading stating a plausible claim in light of the guidance provided to Petitioner infra.


The proceedings in this matter commenced on May 28, 2013, when the Clerk docketed Petitioner's application styled as a habeas petition executed pursuant to 28 U.S.C. § 2241.[1] See Docket Entry No. 1. The habeas application asserted that Petitioner, who has been having extensive medical problems and who has been provided with extensive medical treatment, was recently prescribed a certain surgical procedure but that procedure was suddenly denied to him for non-medical reasons, and said denial posed a grave danger to Petitioner's life. See id. at 8 (Petitioner's application raising, simultaneously and somewhat cryptically, negligence challenges framed in medical malpractice terms and, in addition, a claim asserting a challenge of constitutional magnitude, that is, that the said denial of the prescribed surgery would result in Petitioner's "death").

Six days later, Petitioner submitted the $5 fee applicable to habeas actions. See Docket Entry dated June 3, 2013.

Albeit Petitioner's challenges presented a range of de facto civil rights challenges that could be litigated only under Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388 (1971), see Preiser v. Rodriguez , 411 U.S. 475 (1973); Cardona v. Bledsoe , 681 F.3d 533 (3d Cir. 2012); Leamer v. Fauver , 288 F.3d 532, 542 (3d Cir. 2002), this Court - taking Petitioner's assertion (that he was facing imminent death) at face value, directed Respondent to file an affidavit and evidentiary record verifying that neither Petitioner's life nor his health was in imminent danger, and reserved its determinations as to all other aspects of the case at bar. See Docket Entry No. 2.

Respondent duly complied, see Docket Entry No. 3, [2] providing the Court with evidence indicating that: (a) Petitioner has been receiving extensive and systemic medical treatments; and (b) no medical treatment, moreover no prescribed medical treatment, has been denied to Petitioner for non-medical reasons (and Petitioner was in no imminent danger of any kind). See Docket Entries Nos. 3-1 to 3-4.[3] In response, Petitioner filed a letter stating that certain unspecified "mail [that Petitioner] intended to use in [his traverse] ha[d] been denied to [him], " and requesting an order directing that Petitioner "be given [that unspecified] mail."[4] Docket Entry No. 7.

Upon careful examination of the affidavit and record submitted by Respondent, this Court satisfied itself that neither Petitioner's life nor his health was in imminent danger. See Docket Entries Nos. 7 and 8. Correspondingly, the Court found it warranted to return this matter to the track it should have been on ab initio. Therefore, the Court advised Petitioner that his civil rights challenges could have been entertained only in a Bivens action. See id. In conjunction with the same, the Court advised Petitioner of his obligation to either prepay the $400 filing fee associated with a civil rights action or to duly obtain in forma pauperis ("IFP") status. See Docket Entry No. 7, at 9 and n.1; see also Docket Entry No. 8. Moreover, since the submission made by Respondent: (a) provided the Court with no basis to conclude sua sponte that Petitioner's civil rights might have been violated; and, hence (b) left this Court guessing whether Petitioner would be interested in commencing a civil rights matter altogether, the Court found it premature to direct Petitioner's filing of an amended pleading operating as a civil complaint. See Docket Entry No. 8.

Apparently misconstruing this Court's observation (that Petitioner may commence a Bivens action upon properly prepaying the filing fee or duly obtaining IFP status) as this Court's finding that Petitioner actually has a viable civil rights claim, Petitioner submitted his IFP application in this habeas matter. See Docket Entry No. 9, at 3, 6 (showing that, within the last six months, Petitioner received $3, 000 in monetary gifts deposited on his prison account, and $2, 138 of that amount remained available for payments of Petitioner's expenses).

The IFP application arrived accompanied by Petitioner's statements that: (a) his "claims [were] of substance, " even though he did not know the "critical facts" of those claims; but (b) he wished to conduct "cross-examination" of unspecified individuals to determine facts showing that Respondent's submission contained some unspecified "conflicting evidence"; and (c) in connection with those endeavors, Petitioner was seeking appointment of pro bono counsel in order to "identify" the proper defendants to be named in his civil rights pleading and to detect and state "the facts showing the deliberate indifference [on the part of those yet-to-be-identified defendants] to [Petitioner's] medical needs." Docket Entry No. 9, at 1. In other words, Petitioner conceded that, as of now, he had no facts to support a viable claim.


Section 1914, the filing fee statute, provides, in relevant part, that "the [C]lerk... shall require the [plaintiff]... to pay a filing fee of $350 except [in] a writ of habeas corpus the filing fee shall be $5."[5] 28 U.S.C. § 1914(a). The accompanying provision, Section 1915, governs applications filed IFP and provides, in relevant part, that leave to proceed IFP may be granted in any suit to a litigant "who submits an affidavit that includes a statement of all assets such [litigant] possesses [if such affidavit demonstrates] that the [litigant] is unable to pay such fees." 28 U.S.C. § 1915(a)(1); see also Smith v. Bennett , 365 U.S. 708, 712 (1961) ("[W]hile [$5.00] is... an extremely nominal' sum, if one does not have it... the fee might as well be [$5, 000]"); Clay v. New York Nat'l Bank , 2001 U.S. Dist. LEXIS 3209, at *1 (S.D.N.Y. Mar. 21, 2001) (same).

Therefore, the grant of IFP status is trusted to the good faith discretion of the federal judiciary. Reflecting on the same, the Supreme Court clarified that one need not be absolutely destitute to qualify for IFP status. See Adkins v. E. I. DuPont De Nemours & Co., Inc. , 335 U.S. 331 (1948).[6] Here, however, Petitioner is an inmate whose living expenses, including housing, food, clothing, medications, etc. are provided by the prison authorities and, thus, it does not appear that his minimal needs would be left unsatisfied unless he utilizes his funds. Thus, it does not appear that prepayment of the filing fee, especially if that payment would be equal to less than one-fifth of his current funds, would be too burdensome for Petitioner within the meaning of the Adkins test. Correspondingly, the IFP application fails to qualify Petitioner for IFP status. However, out of an abundance of caution, ...

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