                    United States Bankruptcy Appellate Panel
                              FOR THE EIGHTH CIRCUIT

                                    _______________

                                    No. 98-6021 WM
                                    ______________

In re:        Anthony Ray Inman,              *
                                              *
              Debtor.                         *
                                              *
Craig S. Adams,                               *   Appeal from the United States
                                              *   Bankruptcy Court for the
       Appellant,                             *   Western District of Missouri
                                              *
              v.                              *
                                              *
Anthony Ray Inman,                            *
                                              *
       Appellee.                              *

                                   _______________

                          Submitted: March 17, 1998
                             Filed: March 26, 1998
                                _______________

Before WILLIAM A. HILL, SCOTT and DREHER, Bankruptcy Judges.
                       _______________

SCOTT, Bankruptcy Judge.

     Appellant Adams was convicted of arson and second degree
murder in 1988. The debtor in this case was convicted with
Adams, although on lesser offenses. Adams obtained a default
judgment against the debtor for defamation,1 and, upon the
debtor filing a case under chapter 7 of the bankruptcy code,
filed a complaint to determine dischargeability of




       1
        Adams claimed that Inman defamed him by reporting to the police that Adams had hired
him to set the fire in which a woman was killed.
debt under section 523(a)(6) of the Bankruptcy Code. Adams
requested and was granted leave to proceed in forma pauperis
under 28 U.S.C. § 1915, the Prisoner Litigation Reform Act of
1996.    Subsequently, the bankruptcy court granted summary
judgment in the debtor’s favor and the complaint was dismissed.
Adams appealed from that order and requested leave to proceed
in forma pauperis on appeal.2 The bankruptcy court3 denied the
motion for three reasons:
     (1) Adams paid only $4.46 of the fees required to be paid
under 28 U.S.C. § 1915 in violation of the bankruptcy court’s
order that the fees be paid over time.
     (2) The bankruptcy court certified in writing that the
appeal was not taken in good faith. 28 U.S.C. § 1915(a)(3).

     (3) The appeal was frivolous and the action failed to
state a claim for which relief could be granted. 28 U.S.C. §
1915(e)(2).



       2
        28 U.S.C. § 1915 also establishes a “three strikes, you’re out” rule. Under 1915(g), a
prisoner may not bring a civil action or appeal if the prisoner has, on three or more prior
occasions brought an action or appeal that was dismissed on the grounds that it was frivolous,
malicious, or fails to state claim. Adams now has at least two strikes against him. See Adams v.
Vanwormer, 910 S.W.2d 829 (Mo. Ct. App. 1995)(affirming trial court dismissal of petition as a
“frivolous lawsuit without merit.”); see also Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.
1996)(court may take judicial notice that prisoner had other actions dismissed as frivolous). In
addition to the statutory three-strikes rule, the filing of prior, frivolous appeals may be considered
in determining whether to grant an application to proceed in forma pauperis. See In re
McDonald, 489 U.S. 180 (1989).
       3
         The Honorable Arthur B. Federman, United States Bankruptcy Judge for the Western
District of Missouri. Judge Federman’s opinion is the tenth of a series of opinions arising from
Adams’ civil and criminal appeals. See Adams v. Vanwormer, 910 F.W.2d 829 (Mo. Ct. App.
1995); Adams v. James, 9006 S.W.2d 869 (Mo. Ct. App. 1995); Adams v. Ware, 901 S.W.2d
269 (Mo. Ct. App.), cert. denied, 116 S. Ct. 390 (1995); Adams v. Groose, 889 S.W.2d 175 (Mo.
Ct. App. 1994); Adams v. Vanwormer, 892 S.W.2d 655 (Mo. Ct. App. 1994), cert. denied, 116
S. Ct. 141 (1995); Adams v. Inman, 892 S.W.2d 651 (Mo. Ct. App. 1994), cert. denied, 116 S.
Ct. 140 (1995); Adams v. James, 868 S.W.2d 161 (Mo. Ct. App. 1994); Adams v. Moore, 861
S.W.2d 680 (Mo. Ct. App. 1993); State v. Adams, 791 S.W.2d 761 (Mo. Ct. App. 1990).

                                                  2
Finding no error of law or fact, we affirm the bankruptcy
court’s decision to deny leave to appeal in forma pauperis.




                             3
     Adams first argues that 28 U.S.C. § 1915 is inapplicable
to bankruptcy proceedings such that the strictures of that
statute do not apply. Section 1915 permits any court of the
United States4 to authorize the commencement of any suit,
action or proceeding, civil or criminal, or an appeal therein,
without prepayment of fees. Prisoners, however, although they
may commence an action or appeal, must make monthly payments
until the filing fee is paid.        28 U.S.C. § 1915(b)(2).
Without the application of section 1915, there is no statutory
right by any person to proceed in forma pauperis in any
bankruptcy proceeding.5 28 U.S.C. § 1930 specifically requires
prepayment of fees before bankruptcy cases or proceedings may
go forward.    Indeed, there is a split of authority as to
whether, even with the application of section 1915, that in
forma pauperis status is available in bankruptcy appeals.
Compare In re Meuli, 162 B.R. 327, 329 (Bankr. D. Kan. 1993)(in
forma pauperis status available) with In re Fitzgerald, 167
B.R. 689 (Bankr. N.D. Ga. 1994)(in forma pauperis status not
permitted in bankruptcy cases); In re Brickey, 119 B.R. 786
(Bankr. D. Ore. 1990)(§1930 excepts application of §1915 in
bankruptcy cases, including appeals).       Thus, if Adams is
correct in his assertion that section 1915 does not apply to
bankruptcy proceedings, his application to proceed in forma
pauperis before this court must be denied. Moreover, if Adams
is correct, the bankruptcy court had no authority to grant his
original application to file the       complaint to determine
dischargeability in forma pauperis such that the complaint was


       4
         There is a split of authority as to whether the bankruptcy court is a “court of the United
States,” as that term is used in title 28. Compare Jones v. Bank of Santa Fe (In re Courtesy Inns,
Ltd.), 40 F.3d 1084 (10th Circuit 1994)(bankruptcy court is not a court of the United States) with
In re TCI, Ltd., 769 F.2d 441 (7th Cir. 1985)(bankruptcy court is a court of the United States).
       5
         Although the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394 (Oct. 22, 1994),
established certain pilot district in which debtors were permitted to proceed in forma pauperis, the
Western District of Missouri is not one of those districts.

                                                 4
subject to dismissal for failure to pay the appropriate filing
fee.

     Section 1915 provides that the Court may authorize an
appeal without prepayment of the required fee upon affidavit
that the applicant is unable to pay such costs.6 However, if




       6
        We do not specifically decide in this appeal whether section 1915 applies in bankruptcy
cases and proceedings.

                                                5
the trial court certifies that the appeal is not taken in good
faith, in forma pauperis status is unavailable. Analysis under
section 1915 thus has two prongs: the applicant must
demonstrate an inability to pay and objective good faith in the
appeal.   Martin-Trigona v. Stewart, 691 F.2d 856 (8th Cir.
1982). This Court has reviewed the record in this case and
agrees with the bankruptcy court’s findings of law and fact
with regard to its determination of the application to proceed
in forma pauperis on appeal. Cf. United States v. Slater, 96
F.R.D. 53, 55 n.9 (D. Del. 1982)(“The right to proceed on
appeal in forma pauperis, after the district court has fully
reviewed all of the claims, presents a different circumstance.
In such a situation, the court already has reviewed fully the
litigant’s claims, and is in a much better position to
ascertain whether the issues raised are frivolous.”); see
generally Mann v. Frank, No. 90-1122-CV-W-5, 1992 WL 219800
(W.D. Mo. Sept. 2, 1992). The appeal is manifestly frivolous
and not taken in good faith. The bankruptcy court addressed
each of Adams’ legal arguments, including the rather bizarre
assertion that section 1915 constitutes a Bill of Attainder in
violation of the U.S. Constitution. Adams’ Motion for Leave
to Appeal in Forma Pauperis before this court being without
merit,   the Motion is denied.     Appellant shall submit the
appropriate fee to the clerk of the Bankruptcy Appellate Panel
for the Eighth Circuit within twenty (20) days of entry of this
Order.

    A true copy.

         Attest:

              CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
              EIGHTH CIRCUIT.




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