No. _________________


                             IN THE


                        OCTOBER TERM 1995





                   MOTION FOR LEAVE TO PROCEED
                        IN FORMA PAUPERIS

Dixianne Hawks                John E. Wolfgram, Assoc. Counsel
In Propria Persona            Constitutional Defender Association
13803 N. Granada Drive        4826 South Studebaker Road
Magalia, California 95954     Placerville, California 95667
(916) 877-4636                (916) 642-1776

                             #  #  #

                      No. _________________


                             IN THE


                        OCTOBER TERM 1995






     The Petitioner  asks leave to file the attached Petition for
a Peremptory  Writ of Mandamus without prepayment of costs and to
proceed here in forma pauperis (IFP).

     Petitioner has previously been granted leave to proceed IFP,
and is  presently proceeding  IFP, in  the United States District
Court for the Eastern District of California.

     Petitioner's IFP  status was  de-certified by  the  District
Court for  appeal in this case, without notice or hearing, on the
ground that  the appeal  to the  Ninth Circuit  was taken  in bad

     That de-certification  is the  basis  of  the  issues  being
presented to this Court in the Petition for Writ of Mandamus (see
"History of  the Case,"  in this  Motion, pages  2-6, and  in the
Petition, pages 2-5).

     Petitioner's affidavit in support of this Motion is attached

[signature on attached Verification]

Dixianne Hawks, Petitioner

                             #  #  #


                        OCTOBER TERM 1995

In re: DIXIANNE HAWKS,              No. _______________________
                                    9th Circuit Court of Appeals:
      v.                            Appeal Case No. 95-16714
                                    Civil Case No. 93-82-WBS
                                    (Eastern District of Calif.)
                                        IN FORMA PAUPERIS



     COMES NOW  Dixianne Hawks,  hereinafter "Petitioner"  in the

above entitled  action, to move this Honorable Court for leave to

proceed in forma pauperis  (IFP)  here,  and to  petition  for  a

peremptory Writ of Mandamus compelling the Ninth Circuit Court of

Appeals: (a)  to grant IFP status to the Petitioner, (b) to order

Respondent Court  to Strike the District Court's Order of October

4, 1995,  (c) to  vacate the Circuit Court's Order of December 8,

1995, (d)  to vacate  the Circuit  Court's Order  of December 27,

1995, and  (e) to deem the Opening Brief filed as of December 11,


                           Page 1 of 10

                      Issue on This Motion

     Petitioner is  currently proceeding in District Court IFP on

the "bifurcated"  part of this case.  There has been no challenge

to her  financial inability  to pay  court fees  and costs.   The

challenge to  her IFP status is based upon a District Court order

declaring that  her appeal  to the Ninth Circuit was taken in bad

faith.  Thus, this Motion addresses the History and bona fides of

the appeal as the major issue.

                       History of the Case

     Note:   This  History  is  substantially  identical  to  the

History set  out at  pages 1-5  in the  Petition to this Court in

chief.   On August 20, l990, Petitioner exercised First Amendment

political rights  of speech  and petition by handing out leaflets

commonly  known   as  "FIJA   leaflets"  (Fully   Informed   Jury

Association) to Persons in places open to the public.  There were

no notices that such acts were not lawful, and no prior restraint

binding on Petitioner.  Thereafter, Butte County Defendants began

and maintained  a criminal  prosecution of  Petitioner for  those

acts that  lasted until  January l992. Then, in a series of face-

saving defamations  of Her, Butte County Defendants dismissed the


     Petitioner is  a disabled  American  whose  only  source  of

income is  Social Security.   Exactly  one year later, on January

13, 1993,  She again  exercised  Her  First  Amendment  Right  to

Petition Government  for Redress of the above described grievance

with local  government by  filing a  42 USC 1983 complaint in the

United  States   District  Court  for  the  Eastern  District  of

California, along  with a  motion to  proceed  in forma pauperis,

against  defendants   Butte  County,  District  Attorney  Michael

Ramsey, Municipal Court Judge Jerome E. Warren, and 10 Does.  The

immediate purpose  was to  toll the  statute of limitations until

She could  get help  to  draw  up  an  amended  complaint.    Her

                           Page 2 of 10

expectations were  pursuant to  FRCP  Rule  15.    She  had  made

previous arrangements  for assistance  of counsel  to draw  up an

amended complaint  within two  weeks of  filing.   There  was  no

notice that  the normal  rules of  court did  not  apply  to  IFP

litigants, nor  was She  subject to any lawful prior restraint on

the exercise of Her Petition Clause Rights.

     On January  20, 1993,  a week  after filing,  United  States

District Judge  Edward Garcia  granted  in forma pauperis status,

but ordered  said complaint  dismissed  with  prejudice,  without

motion, without  notice and  without hearing,  on grounds that it

was  frivolous   under  28   USC  1915(d)   (hereinafter   "First

Dismissal").   Petitioner was denied Her FRCP Rule 15 due process

rights and  subjected to censorship of Her Petition Clause Rights

without hearing, solely because She was poor.

     Petitioner then  appealed the  First Dismissal  to the Ninth

Circuit  (hereinafter   "First  Appeal"),   contending  that,  no

defendants having  appeared, She  had a Petition Clause Right and

Rule 15  right to  amend, and Judge Garcia had no jurisdiction to

dismiss, especially with prejudice.  Her first brief was returned

because it  failed to  comply with  form -- a form over substance

abridgment of  Her right to Petition for Redress.  She amended it

and refiled  it.   Initially,  Ninth  Circuit  Judges  Schroeder,

Canby, and Wiggins affirmed the First Dismissal.

     Petitioner then  petitioned for  rehearing, with  an en banc

suggestion, stressing  the equal  rights of  an IFP  litigant  to

amend under  Rule 15.   Rehearing  was granted  by  the  original

panel, but  the issues  appealed were  still not  addressed.  The

Circuit Court affirmed as to the Does and Judge Warren on grounds

                           Page 3 of 10

of judicial  immunity, even  though She argued the right to amend

under Pulliam  v Allen,  466 US 522, again abridging Her right to

petition for  declaratory relief,  an important  political right.

The Circuit  Court affirmed  in part  and  vacated  in  part  the

dismissal  as  to  District  Attorney  Ramsey,  and  vacated  the

dismissal as  to the  County of Butte.  The Circuit Court's basis

for vacating  was that  Judge Garcia  had abused  his discretion.

(See First  Amended Complaint, Exh. 1a (hereinafter "FAC") 9:8 et


     Petitioner moved for rehearing again on the basis that Judge

Garcia, proceeding  without notice  or hearing and in the face of

Rule 15, had no "discretion" to abuse.  Her motion was denied and

the  case   was  remanded  to  the  District  Court  for  further

proceedings.   Petition-er  then  filed  Her  First  Amended  and

Supplemental Complaint  on November  21, 1994,  conforming to the

Circuit Court's requirements. In addition to amending, Petitioner

sued Judges Garcia, Schroeder, Canby and Wiggins in the Fifth and

Supplemental Cause  of Action  for Violations of Her Petition and

Due Process  rights and  of 42  USC 1985.    The  Supplement  was

pleaded under  this Court's  opinion in  Pulliam v  Allen, 466 US

522.   Again, the  important right  is the  Political Right  to a

declaration that  what the  Defendants did  violated Her  rights.

Without such  a political  right, as  this case demonstrates, the

violations become  systematic and institutionalized, and continue

ad infinitum.

                           Page 4 of 10

     The case  was assigned  to U.S.  District Judge  William  B.

Shubb.   He granted  Defendants' motion  to dismiss on grounds of

judicial immunity,  holding that Pulliam did not apply to federal

judges per  Mullis v  U.S. Bankruptcy  Court, 828  F2d 1385  (9th

Cir.).   Of  particular  relevance  here  is  that,  during  oral

argument, Petitioner  asked Judge  Shubb to  certify  his  ruling

pursuant  to   FRCP  54(b)   so  that   it  could   be   appealed

independently./1  He issued  his order  on July 27, 1995 (Exhibit

1),  allowing   Petitioner  to   appeal  under  FRCP  54(b),  and

effectively bifurcating  this case  from the  suit against  Butte

County.  Petitioner filed Notice of Appeal on August 23, 1995./2

     Then, on  October 4,  1995, Judge  Shubb issued  an "Order,"

without   notice   and   without   hearing,   "certifying"   that

Petitioner's Second  Appeal "... is not taken in good faith" (see

Exhibit 2).   That  Order  effectively  denied  Petitioner's  IFP

status for  appeal under  28 USC  1915(a)  and,  as  a  practical

matter, arbitrarily  violated Her Petition and Due Process Clause

Rights based  upon IFP status.  This Court should note that Judge

Shubb's "de-certification order" was made some six weeks after he

had lost jurisdiction by the notice of appeal.

     On October 12, 1995, Petitioner filed a Motion to Strike the

Order of Judge Shubb of October 4, or, in the Alternative, for an


1 There  was an obvious Pulliam versus Mullis issue.  Embodied in
that issue is the political right to have government wrongs, even
wrongs of judges,  declared so that they cease.

2 The  Point:   If Judge  Shubb wished to certify that the Second
Appeal was  in bad  faith under  28 USC  1915(a), he  could  have
raised the  issue during oral arguments, or in his Memorandum and
Order,  and  he  could  have  allowed  Plaintiff  a  due  process
opportunity to  be heard. If, on hearing, he was not pursuaded of
Her good  faith,  Plaintiff  could  have  timely  petitioned  the
Circuit Court  for leave to appeal IFP.  But, not only did he not
offer such a hearing, he also gave Plaintiff no clue that he felt
Her Second  Appeal was  in bad faith, even after certifying for a
Rule 54(b)  appeal. Instead,  he waited ten weeks;  and six weeks
after he  lost jurisdiction  by the  appeal, and after a briefing
schedule was  already set,  he then  issued  his  order,  without
notice, without hearing, and without apparent cause.

                           Page 5 of 10

Order to  Show Cause  Why It  Should Not Be Stricken (hereinafter

"Strike Motion,"  see Exhibit  3);  and, on October 19, 1995, She

filed a  Supplement to  the Strike  Motion  (hereinafter  "Strike

Supplement," see  Exhibit 4).   On  October 24,  1995, Defendants

filed their  "Federal Defendants-Appellees'  Opposition to Motion

to Strike Order of Judge Shubb" (hereinafter "Strike Opposition,"

see Exhibit  5).  Petitioner did not receive a copy of the Strike

Opposition and,  therefore, did  not file  a  rebuttal,  although

there is  proof of service.

     The Ninth  Circuit Court of Appeals waited until December 8,

1995, to  issue its  order denying  IFP status  (see Exhibit  6).

That Order  declared:   "Our independent  review  of  the  record

indicates that  appellant  is not entitled to IFP status for this

appeal.   See 28  USC 1915(a)."   It  ordered Petitioner  to  pay

filing fees  within 14  days and  file proof  of payment with the

Circuit Court;   it also declared that:  "Failure to pay the fees

will result in the automatic dismissal of the appeal by the Clerk

for failure to prosecute, regardless of further filings.  See 9th

Cir. R.  42-1."   [emphasis added]   A  copy of the filed Circuit

Order was then mailed to the Petitioner.

     In the  meantime, Petitioner's  Opening Brief  was due.  She

served and  "filed" it  on December  11, 1995, prior to receiving

notice of  the December  8 Circuit  Order (see  Exhibit 7).   The

Petitioner's Opening  Brief was thus lodged in the Appeals Court,

but She  had no  money with which to pay the filing fees, and the

Court had  ordered an "automatic dismissal" regardless of further

filings.     This  Court   is  asked  to  note  Petitioner's  IFP

                           Page 6 of 10

declaration: She  relies totally upon Social Security;  She has a

one-ninth interest  in common with Her mother in a real property,

and She  owns a home which she personally built, neither of which

properties can  be liquidated.   She  has no  other assets.   The

Circuit Order  occurred during  the Christmas  season  when  cash

shortages are  acute.   She has no income with which to repay any


     This Court is asked to notice two repetitive circumstances:

     First, every  filing herein  (the  Original  Complaint,  the

First Appeal  and filing  and refiling  thereof, the two Requests

for Rehearing, the Amended and Supplemental Complaint, the Second

Appeal, the Motion to Strike Judge Shubb's October 4th Order, the

Supplement to  the Motion  to Strike,  the Opening Brief, and now

Her Petition  to this Court) are all Petitions to the Appropriate

Government  Agencies   (courts)  to   redress  grievances   of  a

constitutional magnitude with government.

     Second, the  repetitive issue  is Her right to petition IFP.

In effect,  the Federal  Courts have  reversed  the  intents  and

purposes of  28  USC  1915  and  have,  by  arbitrarily  assuming

authority to  violate constitutional  rights, made IFP litigation

infinitely more burdensome than it is for people who hire counsel

and pay  the courts to exercise the right to petition for redress

of grievances with government.

                           Page 7 of 10

     Petitioner now  petitions for  relief  from  the  procedural

irregularities,  arbitrary   customs,  unlawful   procedures  and

practices   documented    herein,   reflecting    a   policy   of

discrimination against the poor, just because they are poor. That

policy  creates   numerous   artificial   barriers   collectively

calculated to  become insurmountable  and to  render the right to

petition  government   for  redress   of   grievances   illusory,

ineffective and unavailable to the poor.

     This Court  attempted to set a standard in Day v Day, (l995)

510 US__,   126 L Ed 2d 1, allowing up to 27 IFP petitions over 9

years before  denying IFP  status, and  suffering 8 more in a few

months before  issuing the kind of order the Circuit Court issued

to Petitioner only on Her second such filing;  and the first such

filing was,  in fact,  successful (it  reversed Judge  Garcia for

abuse of  discretion).   The Ninth  Circuit rejected this Court's

standard set in Day.

     Thus, it  is necessary that this Court state the standard in

terms  of  a  principle  established  under  the  First Amendment

Petition Clause  in the Constitution, for guidance to the Circuit

and District Courts.

     Supporting Declaration: The Declaration of John E. Wolfgram,

set out  in Exhibit  9 and accompanying this Motion and Petition,

is incorporated  herein by  reference.  Petitioner's Affidavit in

Support of Her Motion to Proceed IFP is attached.

                           Page 8 of 10


     The First Amendment states in relevant part:

     "Congress shall make no law ... abridging ... the right
     of the  people ...  to petition  the Government  for  a
     redress of grievances."

     This Court declared of that clause in Chambers v Baltimore &

Ohio R.R., 207 US 142, 148 (1907):

     "The Right  to sue  and defend  in the  courts  is  the
     alternative of  force.   In an organized society, it is
     the right  conservative of all other rights and lies at
     the  foundation  of  orderly  government."    [emphasis

     If access  to the  courts is  the alternative to force, in a

civilized society  the right  effectively to  petition government

through its  courts to  redress one's  grievances with it, is the

alternative  to   violent  revolution   against  government.  See

Declaration of  Independence of  July 4,  l776, and the Causes of

the Revolutionary War: the Colonies had no way to compel the King

to redress  their grievances with his rule, short of rebellion./3

The same  is recognized  in the  Universal Declaration  of  Human

Rights and  in the  International Covenant on Civil and Political

Liberties.   See the  citations and  argument in  "Aid to Court's

Appellate Jurisdiction" on pages 6-8 of the attached Petition for

Writ of Mandamus to the Ninth Circuit Court of Appeals.

     Wherefore, Petitioner respectfully prays that this Honorable

Court grant  Her motion  to proceed  in forma pauperis;  hear and

decide the  Petition for Writ of Mandamus to the Ninth Circuit on

its merits;   and, in the process, set appropriate constitutional

standards for  the guidance  of the Judiciary so that all persons

may effectively  petition government  for redress  of  grievances

against government, regardless of financial status.


3 After  itemizing the 27 unredressed grievances, the Declaration
states:   "In every stage of these Supressions We have Petitioned
for Redress  in the  most humble  terms.   Our repeated Petitions
have been  answered only  by repeated  injury.   A Prince,  whose
character is  thus marked by every act which may define a Tyrant,
is unfit to be the ruler of a free people."

                           Page 9 of 10

Dated:  January 11, 1996           ______________________________
                                   Dixianne Hawks

                          Page 10 of 10

                             #  #  #

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Hawks v. County of Butte et al.