Vance v. District Court of Fremont County , 19 Brief Times Rptr. 1651 ( 1995 )

JUDGE METZGER,

dissenting.

Because, in my view, the trial court did not abuse its discretion in dismissing plaintiffs complaint, I respectfully dissent from part II of the majority’s opinion.

On September 18, 1993, plaintiff was charged with assault of several Department of Corrections staff persons. He was found guilty at a disciplinary hearing held and a sanction was imposed. Internal administrative appeal procedures resulted in an affir-mance of the decision on November 15, 1993.

Plaintiff filed this action on December 3, 1993, and attached an affidavit of indigency in support of his request to proceed informa pauperis.

Thereafter, the trial court ordered that plaintiff file a statement reflecting the balance of his inmate account between November 3 and December 3, 1993. Plaintiff sent a printout showing credits of $70 in money orders and $8.12 in payroll. Debits totalled $106.07 and, as of December 2, 1993, according to the Department of Corrections, plaintiff had an account balance of $56.96.

Thereafter, the court then ordered that plaintiff provide an itemization of his canteen expenses for November 9, November 16, and November 30, 1993. That itemization showed that plaintiff had spent $10 for coffee, $15.20 for cigarettes or related tobacco items, $15 for telephone transfers, $8.70 for stamps, $19.40 for snack foods, and $14.50 for personal hygiene items.

The trial court then found that plaintiff, who had “no expenses for food, housing, transportation or health care,” did have “sufficient funds available to him, absent canteen expenditures, which would have enabled him to pay the $80.00 filing fee.” Accordingly, it ordered plaintiff to pay the filing fee within 30 days or it would dismiss the case. Pursuant to this order, two months later, the trial court dismissed the action.

Since plaintiff in this C.R.C.P. 106(a)(4) action is seeking review of an administrative determination, the case is civil not criminal. Thereafter, plaintiff does not have many of the constitutional rights attendant to a criminal proceeding. However, § 13-16-103, C.R.S. (1995 Cum.Supp.) does authorize the trial court, in its discretion, to permit him to “commence and prosecute [the] action or proceeding without the payment of costs.”

Because the determination of inability to pay is, at its core, a factual one, it is difficult to create a bright-line rule. Indeed, as noted in Medina v. District Court, 189 Colo. 516, 543 P.2d 62 (1975), a finding of indigency for one purpose does not render a defendant indigent for all purposes.

The Colorado statute is analogous to 28 U.S.C. § 1915 (1976), which permits federal courts to authorize “commencement, prosecution, or defense of any suit, action, or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs ... by a person who makes affidavit that is unable to pay such costs or give security therefor.” Thus, cases interpreting the federal law are helpful to determine the issue here.

The leading ease discussing the definition of “poor person” is Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948). There, the Supreme Court noted that an in forma pauperis affidavit must be made under penalty of perjury. “This constitutes a sanction important in protection of the public against false or fraudulent invocation of the statute’s benefits.” Adkins v. E.I. DuPont de Nemours & Co., supra 335 U.S. at 338, 69 S.Ct. at 89, 93 L.Ed. at 48. Here, plaintiffs statements in his in forma pauperis affidavit are inconsistent with the entries in his present account.

He averred that he has received “no monies” from “business, profession, self-employment, rent payment, interest, dividend, annuity, life-insurance payment, social security, Veteran’s Administration, disability pensions, Workers’ Compensation, employment benefits, gifts, or inheritances.” Yet, his inmate bank account shows that he received a $30 postal money order on November 9, 1993, one for $10 on November 23, 1993, and another for $30 on November 24,1994.

Plaintiffs affidavit also averred that “the monies on deposit in my prison account are used to purchase personal hygiene items and clothing not provided in the course of my incarceration.” Yet, of the more than $80 plaintiff spent between November 3 and December 3, 1993, only $14.50 was for personal hygiene items and none was for clothing.

In light of these discrepancies between the affidavit and the account statement, I believe the trial court acted well within its discretion in rejecting plaintiffs assertions of poverty.

Moreover, I disagree with the majority’s restrictive definition of “poverty” that it applies to this case. The majority relies on Justice Goldberg’s concurring opinion in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) for the proposition that an individual does not need to be absolutely destitute to qualify as a “poor person.” While I do not disagree with that concept, I would find the explanation of “poverty” entitling one to a waiver of fees or costs in Rowland v. California Men’s Colony, 506 U.S. 194,-, 113 S.Ct. 716, 722, 121 L.Ed.2d 656, 667 (1993) to be more useful here.

There the Court said:

Poverty, in its primary sense, is a human condition, to be ‘[w]anting in material riches or goods; lacking in the comforts of life; needy,’ Webster’s New International Dictionary 1919 (2d ed 1942) and it was in just such distinctly human terms that this Court had established the standard of eligibility long before Congress considered extending in forma pauperis treatment from ‘citizens’ to ‘persons.’ As we first said in 1949, ‘[w]e think an affidavit is sufficient which states that one cannot because of his property ‘pay or give security for the costs ... and still be able to provide’ for himself and his dependents ‘with the necessities of life.’ Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43, 49, 11 A.L.R.2d 599.

Applying this definition of poverty to the facts, I consider the trial court’s conclusion to be fully supported by the record.

Plaintiffs financial transactions can be summarized as follows. On November 3, he had a balance of $30.31. Adding the $70.00 in money orders he received and $5.62 in payroll, he would have had $105.93 in his account had he spent nothing at the canteen. Debiting $14.50 for personal hygiene items, his balance would have been $91.43, more than enough to pay the filing fee.

Plaintiff is an inmate in a Colorado correctional facility; thus, his “necessities of life” are provided by the taxpayers of this state. And, while I do not begrudge an inmate’s wish to enrich his spartan existence by his commissary purchases, I reject the view that the law should allow him or her to bring a discretionary, civil action for free because of that fact.

Consequently, because the record supports the trial court’s findings of fact and, because in my view, the trial court correctly applied the law, I would affirm. Indeed, the trial court said it most succinctly in its order of dismissal:

No persons should be denied access to the courts due to an inability to pay the filing fee. However, if an individual is anticipating filing an action, and he chooses to spend his resources on snacks rather than the filing fee, then that individual should not be relieved of the costs inherent in seeking relief from the courts. Plaintiffs purchases reflect a different priority for the use of his money not an inability to pay.