Opinion
C.A. No. 07M-08-014 RFS.
November 11, 2007.
ORDERS REGARDING MOTION TO PROCEED IN FORMA PAUPERIS AND UPON REVIEW OF AMENDED COMPLAINT
1) Charles B. Sanders ("plaintiff") filed a complaint with this Court alleging violations of his due process rights. He seeks monetary relief and requests orders instructing that various tasks be performed to place him in the status quo as of the time before the alleged violations took place. Plaintiff also filed a motion to proceed in forma pauperis.2) In a letter and order dated September 14, 2007, this Court addressed several problems with the complaint and motion to proceed in forma pauperis and it directed plaintiff take remedial action. These problems and the actions plaintiff took are outlined below.
3) With regard to the complaint, the Court instructed that an amended complaint be filed which omitted any claims of Allen J. Weikel and which attached a referenced exhibit. Plaintiff complied with those instructions when he filed an amended complaint on September 26, 2007.
4) With regard to the motion to proceed in forma pauperis, the Court instructed plaintiff to provide copies of all decisions issued as a result of his exhausting his administrative remedies available through the institutional grievance procedure. Plaintiff has informed the Court that he cannot provide this documentation because he sent all documents to the Center for Justice without keeping the originals or copies thereof. He attempted to retrieve these documents from the Center for Justice, but the Center of Justice could not locate them. He also attempted to retrieve them from the Department of Correction ("DOC"). DOC informed him that "the Court will have to subpoena the Records Department for the requested documents if you [plaintiff] cannot get them back from DCJ."
5) The authority for requiring the submission of the above-noted decisions is not statutory. Instead, the authority stems from Administrative Directive of the President Judge of the Superior Court of the State of Delaware No. 2003-6 captioned, "Procedures for Handling Applications to Proceed In Forma Pauperis".
6) The failure to provide the required documentation precludes the Court from reviewing the decisions issued as a part of the grievance procedure and from making a determination as to whether the claim in the complaint is meritless and/or frivolous before service of process issues. However, the Court has the ability to make that determination at a later stage of the litigation. 10 Del. C. § 8803(c). If the Court does in fact later determine that the claim is meritless or frivolous, then the Court has several remedies available to it. It may enjoin plaintiff from filing further claims without leave of court, 10 Del. C. § 8803(e), and/or, pursuant to 10Del. C. § 8805(a), it "may order the Department of Correction to forfeit the portion of the litigant's behavior good time credits accumulated from the date the action was received by the court up to and including every month until the action was disposed of by the court."
In 10 Del. C. § 8803(c), it is provided in pertinent part:
(c) If a court does not dismiss a complaint pursuant to subsection (b) of this section, but the record subsequently reveals the action is factually frivolous, malicious or the action is legally frivolous and that even a pro se litigant acting with due diligence, should have found well settled law disposing of issue(s) raised, the court may upon its own motion or the motion of a party, enter judgment against plaintiff and dismiss the complaint.
7) Because DOC has copies of the documentation issued as a part of the grievance procedure, because this Court can revisit the issue of whether the claim is meritless and/or frivolous, because the production of these documents is not a statutory requirement, and because this Court can impose sanctions as examined above, the Court determines that the production of these documents is not fatal to the granting of the motion to proceed in forma pauperis.
8) In reviewing this matter, the Court has noticed that a praecipe was filed with regard to Brian Hubbs. However, the Amended Complaint does not advance any claim against Brain Hubbs nor does it name him as a defendant. Consequently, no service of process shall issue with regard to Brian Hubbs.
NOW, THEREFORE, THIS _11th_ DAY OF _November____, 2007, IT IS HEREBY ORDERED AS FOLLOWS:
1) The motion to proceed in forma pauperis is granted;
2) Service of process of the Amended Complaint may issue with regard to all of the named defendants; and
3) No service of process shall issue as to Brian Hubbs.