Crosby v. O'Brien

Filing 36

Judge Patti B. Saris: ORDER entered denying 27 Motion for Leave to Appeal in forma pauperis. Crosby either must pay the $455.00 appellate filing and docketing fee, or he may file a renewed Motion for Leave to Proceed on Appeal in forma pauperis directly with the United States Court of Appeals for the First Circuit (First Circuit). See Fed. R. App. P. 24(a)(5). The Clerk is directed to transmit a copy of this Order to the First Circuit forthwith. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WAYNE CROSBY,
Petitioner,
CIVIL ACTION
NO. 10-10041-PBS
(USCA No. 11-1046)

V.
STEVEN J. O’BRIEN, SUPERINTENDENT
Respondent.

ORDER ON MOTION FOR LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS
July 5, 2011
SARIS, D.J.
I.

Introduction

On January 11, 2011, petitioner Wayne Crosby (“Crosby”)
filed a Notice of Appeal (Docket No. 22) of the dismissal of his
habeas petition.
Thereafter, on March 25, 2011, Crosby filed, through his
counsel, Michael A. Nam-Krane, Esq., a Motion for Leave to
Proceed on Appeal in forma pauperis (Docket No 27).

No financial

affidavit signed by Crosby was attached to the motion, nor was
his certified prison account statement submitted.

Rather,

Crosby’s counsel simply claimed that Crosby previously was
determined to be indigent (presumably by the Commonwealth of
Massachusetts state court), and that counsel had been assigned to
represent Crosby in the federal habeas action by the
Massachusetts Committee for Public Counsel Services (a state
agency that represents only the indigent).
II.

Discussion

Under Rule 24(a)(1) of the Federal Rules of Appellate
Procedure, a person moving for leave to appeal in forma pauperis
must attach to his motion an affidavit that: “(A) shows in the

detail prescribed by Form 4 of the Appendix of Forms [to the
Federal Rules of Appellate Procedure] the party’s inability to
pay or to give security for fees and costs; (B) claims an
entitlement to redress; and (C) states the issues that the party
intends to present on appeal.”

Fed. R. App. P. 24(a)(1).

Further, where the appellant is a prisoner, he is required to
submit a statement of his finances signed under the penalties of
perjury, see 28 U.S.C. § 1915(a)(1), along with “a certified copy
of the trust fund account statement ... for the prisoner for the
6-month period immediately preceding the filing of the ... notice
of appeal.”

28 U.S.C. § 1915(a)(2).1

Here, as noted above, Crosby failed to submit both his
financial affidavit and his certified prison account statement as
required.

Without this information, the Court cannot grant the

motion to appeal in forma pauperis.

Neither counsel’s assertions

that Crosby is indigent, nor the assertions that he has been
appointed counsel satisfy the statutory requirements for

1

The affidavit requirement contained in the in forma
pauperis statute serves a deterrent function. Rowland v.
California Men's Colony, Unit II Men's Advisory Council, 506 U.S.
194, 205 (1993). In Rowland, the United States Supreme Court
stated: “[o]ne who makes this affidavit exposes himself ‘to the
pains of perjury in a case of bad faith.’ ... This constitutes a
sanction important in protection of the public against a false or
fraudulent invocation of the statute’s benefits.” Id. at 205
(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
338, (1948) quoting Pothier v. Rodman, 261 U.S. 307, 309 (1923)).
The perjury sanction is an important requirement in protecting
the public against misuse of public funds by a litigant who has
sufficient funds of his or her own, and against the filing of
“frivolous or malicious” lawsuits funded by the public. Rowland,
506 U.S. at 205.
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proceeding in forma pauperis on appeal.
III.

Conclusion

In light of the above, Crosby’s Motion for Leave to Proceed
on Appeal in forma pauperis (Docket No. 27) is DENIED as
defective.

Crosby either must pay the $455.00 appellate filing

and docketing fee, or he may file a renewed Motion for Leave to
Proceed on Appeal in forma pauperis directly with the United
States Court of Appeals for the First Circuit (“First Circuit”).
See Fed. R. App. P. 24(a)(5).2
The Clerk is directed to transmit a copy of this Order to
the First Circuit forthwith.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

2

Fed. R. App. P. 24(a)(5) provides:

A party may file a motion to proceed on appeal in forma
pauperis in the court of appeals within 30 days after
service of the notice [of the district court’s order
denying the motion to proceed in forma pauperis]. The
motion must include a copy of the affidavit filed in
the district court and the district court’s statement
of reasons for its action. If no affidavit was filed
in the district court, the party must include the
affidavit prescribed by Rule 24(a)(1).
Fed. App. P. 24(a)(5).
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