Opinion
C.A. No. N10M-02-064-MMJ.
Submitted: June 23, 2010.
Decided: September 8, 2010.
On Respondents' Motion to Revoke Petitioner James A. Biggins' In Forma Pauperis Status. GRANTED
Ophelia M. Waters, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State.
James A. Biggins, pro se.
MEMORANDUM OPINION
FACTS
Petitioner James A. Biggins, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed a Petition for an Emergency Writ of Mandamus with leave to proceed in forma pauperis on February 1, 2010.
In his petition, Biggins alleged that on November 10, 2009, he sent a letter to the Attorney General regarding an October 9, 2009 incident between himself and the correctional staff at the James T. Vaughn Correctional Center ("Center"). On October 9, 2009, Biggins alleged, the correctional staff at the Center used "excessive force" against him amounting to assault and battery. He requested the Attorney General investigate his unanswered administrative grievances regarding the incident and bring charges against the individuals involved.
Biggins filed his petition with the Court after the Attorney General's failure to investigate the incident. He requested the Court order an emergency hearing to compel the Department of Corrections and the Attorney General to investigate the October 9, 2009 incident.
The State filed a Motion to Revoke Petitioner James A. Biggins' In Forma Pauperis Status in response to Biggins' petition, arguing that Biggins' history of filing frivolous actions with the Superior and District Courts, prevented Biggins from in forma pauperis status pursuant to the "three strikes" provision of 10 Del. C. § 8804(f). As a result, the State requested the Court dismiss Biggins' petition until he pays the appropriate filing fees.
In his initial answer to the State's petition, Biggins declined to address the merits of the State's motion, arguing only that this Court had found that his "complaint [was] not frivolous." He also requested the Court sanction the attorneys for the State for their "abuse of authority and calculated effort to commit fraud upon this [C]ourt by knowingly misrepresenting the nature and stage of the Petitioner's action. . . ."
On August 6, 2010, Biggins filed a Motion for an Order for Hearing. Biggins again stating that the Court, "[f]ollowing extensive screening," granted him in forma pauperis status because his initial claim was non-frivolous and because Biggins was in danger of imminent harm. Biggins then outlined his claim, alleging that the Department of Corrections violated his constitutional rights, and, because he had exhausted his administrative remedies, requested the Court compel the Department of Corrections and the Attorney General to investigate his claims.
In Forma Pauperis
The Delaware Code provides that "an individual who is unable to prepay all court costs and fees may proceed in forma pauperis" in a manner provided for by the judiciary. An individual seeking in forma pauperis status must file an affidavit providing such information that the Court may "determine the ability of the affiant to pay all or any portion of the court costs and fees associated with the filing of an action in that court." The Court may, at its discretion, permit the affiant to proceed in forma pauperis and issue an order authorizing the filing of the complaint and establishing the amount of court costs and filing fees to be paid.Following the issuance of that order, the Delaware Code requires that the Court review and dismiss the complaint if, upon review, the Court finds the action "factually frivolous, malicious or, upon [the Court's] finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of the issue(s) raised." But even where the Court does not initially dismiss the action for frivolity or malice, if "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 the issue(s) raised, the Court may, upon its own motion or the motion of a party, enter judgment against plaintiff and dismiss the complaint."
Del. C. § 8803(c).
Additionally, the Delaware Code precludes a petitioner from in forma pauperis status, where the petitioner is incarcerated at the time of his or her request, and has, on three or more prior occasions, while incarcerated or detained, brought an action or appeal in state or federal court found to be frivolous, malicious, or lacking a claim upon which relief may be granted. The Code allows an exception where "the prisoner is under imminent danger of serious physical injury at the time that the complaint is filed."
Id.
Biggins' Litigation History
Biggins' litigation history shows that he has filed a significant number of petitions, motions, and suits that have been dismissed as frivolous, malicious, or lacking a claim upon which a relief may be granted.On February 28, 2000 Biggins filed a petition in the Sussex County Superior Court, and alleged that he had been unconstitutionally denied access to the courts because restrictions the Department of Corrections imposed on his access to the law library were unreasonable. He also claimed that the Department of Corrections improperly took money from his account to pay for copies, despite a requirement to provide copies for free. By February 16, 2001 Order, the Court consolidated Biggins' petition with a December 11, 2000 petition wherein Biggins sought a writ of mandamus in the Kent County Superior Court because the Delaware Correctional Center refused him appointments in the law library. On September 26, 2001, the Court held against Biggins, finding that the Department of Corrections was not obligated to provide free copies and that Biggins had not established a valid claim for a writ of mandamus because the Correctional Center did not violate a non-discretionary policy. Although the Court did not find that Biggins' claims were frivolous at the time of their filing, because Biggins filed a second petition in Kent County and asserted the same claim that was under review in Sussex County, the Court found that he did so knowing that the Sussex County Court already was considering the same issue. The Court found that Biggins' claims imposed an unnecessary burden on the legal system, and held that his actions were frivolous and malicious.
Biggins v. Department of Corrections of State of Delaware, 2001 WL 1628315, at *1 (Del. Super.).
Id.
Id.
Id. at *4-5.
Id. at *5.
Id.
Beginning on March 2, 1999, Biggins submitted a series of complaints and amendments to the United States District Court for the District of Delaware alleging violations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Biggins claimed that prison officials confiscated a number of books he kept in his cell and used as part of a ministry correspondence course. The prison regulation allowed prisoners no more than two books in their cells (excepting certain other reading materials, such as the Bible, Koran, or one newspaper). Biggins also claimed that he had been required to pay a fee for photocopying services in the law library at the Correctional Center, that his confinement in a cell without a toilet for thirty to forty-five minutes during head counts violated his Eighth Amendment right to be free from "cruel and unusual punishment," and that a disciplinary action in response to his disobedience of a prison guard's direct order violated the Due Process Clause of the Fourteenth Amendment. The District Court dismissed each of Biggins' claims on August 24, 2000. Biggins appealed the District Court's decision, but the Third Circuit Court of Appeals dismissed the appeal due to Biggins' failure to prosecute. Six years later, Biggins filed a motion for relief from final judgment on August 23, 2007. The District Court dismissed the motion as a legally frivolous attack on the dismissal order, brought well beyond the "reasonable time" deadline imposed by the Federal Rules of Civil Procedure.
Biggins v. Snyder, 2000 WL 1239992, at *1 (D. Del. 2000); see also Biggins v. Snyder, 2008 WL 4219570, at *1 (D. Del. 2008).
Biggins v. Snyder, 2000 WL 1239992, at *1.
Id. at *2.
Id. at *3.
Biggins v. Snyder, 2008 WL 4219570, at *1; see also Biggins v. Snyder, No. 00-2673 (3d Cir. Jan. 8, 2002).
Biggins v. Snyder, 2008 WL 4219570, at *1.
Id. at *2; see also Fed.R.Civ.P. 60(b)(6).
On September 25, 2009, the District Court again dismissed for frivolousness and failure to state a claim upon which relief may be granted, a suit by Biggins filed pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act ("ADA"). Biggins' suit incorporated five claims. First, he claimed that the Department of Corrections' failure to clean his housing unit's air circulation ventilation systems and ceilings caused him shortness of breath, occasional dizziness, and nausea. Second, he claimed that the Center's use of food utensils, trays, and cups made from corrosive materials caused him to digest bacteria from corroded, dented, and hard to clean feeding products. Third, Biggins alleged that the Center provided only unsanitary and polluted water which caused him stomach cramps and diarrhea. Fourth, Biggins argued that the Center's failure to provide medication to treat his sickle-cell anemia caused him frequent weakness, an inability to function for days at a time, loss of appetite, high fevers, and vomiting. Finally, Biggins alleged that the Center's food services dietitian failed to provide him a proper diet to treat his acid reflux and bleeding ulcers. The District Court dismissed the first and third counts for a failure to state a claim and the second, fourth, fifth counts as frivolous. However, the District Court gave Biggins leave to amend the first, third, and fifth counts.
Biggins v. Markell, WL 3094867, at *1 (D. Del. 2009).
Id.
Id.
Id.
Id.
Id. at *2.
Id. at *3-5.
Id. at *3-5.
The above cases provide adequate evidence that Biggins, an inmate at the James T. Vaughn Correction Center, has, on at least three occasions, while incarcerated or detained, brought an action or appeal in state or federal court found to be frivolous, malicious, or lacking a claim upon which relief may be granted. Additionally, this Court and the Delaware Supreme Court both have found that Biggins has filed at least eight similarly dismissed complaints. In the absence of the exception outlined in Section 8804(f), Delaware Code precludes Biggins from in forma pauperis status.
See Biggins v. Phelps, Del. Super., C.A. No. S08M-12-018, Graves, J. (Jan. 7, 2009); see also Biggins v. Danberg, 2010 WL 3310591, at *1 (Del.).
Imminent Danger of Serious Physical Injury Exception
The Delaware Code allows an exception to the "three strikes" rule and may allow an otherwise ineligible prisoner to proceed in forma pauperis where "the prisoner is under imminent danger of serious physical injury at the time that the complaint is filed."Biggins alleges that the incident between himself and the correctional staff at the Center occurred on October 9, 2009. He sent a letter to the Attorney General on November 10, 2009 and filed the instant petition on February 1, 2010. As this Court found previously in Phelps and the Supreme Court affirmed in Danberg, Biggins cannot establish that he was "under imminent danger of serious physical injury at the time that [his] complaint [was] filed," where the complaint is filed several months after the incident upon which it is based.
See Biggins v. Phelps, Del. Super., C.A. No. S08M-12-018, Graves, J. (Jan. 7, 2009); see also Biggins v. Danberg, 2010 WL 3310591, at *1.
The Court's Prior Grant of In Forma Pauperis Status
Biggins argues that the Court, granted him in forma pauperis status "[f]ollowing [an] extensive screening," based upon the Court's finding that the instant petition is non-frivolous and that he is under imminent danger of serious physical injury. Biggins bases his argument upon the Court's February 24, 2010 Order Upon Initial Review of Complaint. Biggins alleges that because the Court's declined to find his claim to be factually or legally frivolous, malicious, or, from the face of the complaint, that Biggins was not entitled to relief, the Court intended to find that the petition was non-frivolous.The order upon which Biggins relies is a form of order supplied by the Prothonotary. The Court may grant or deny in forma pauperis status by a checkmark and signature. In the event that the Court denies a prisoner in forma pauperis status, the form allows the Court to specify the reason for the denial by choosing among a list of reasons for denial.
Biggins' argument fails. Although section 8803 requires the Court deny a petitioner in forma pauperis status where the Court's finds frivolousness, malice, or a failure to state a claim, section 8803(c) provides that even where the Court does not initially dismiss an action, if "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 the issue(s) raised, the Court may, upon its own motion or the motion of a party, enter judgment against plaintiff and dismiss the complaint." The Court's initial finding does not preclude a later finding to the contrary.
Further, the February 24, 2010 Order does not indicate "extensive screening" by the Court. Rather, the Court preliminarily granted in forma pauperis status following a review of the complaint itself, not upon any substantial investigation into the underlying facts or legal arguments.
CONCLUSION
The Court finds that at the time Petitioner James A. Biggins filed his Petition for an Emergency Writ of Mandamus with leave to proceed in forma pauperis, he was an inmate at the James T. Vaughn Correctional Facility in Smyrna, Delaware. On at least three prior occasions, while incarcerated or detained, Biggins brought an action or appeal in state or federal court that was found to be frivolous, malicious, or lacking a claim upon which relief may be granted. Additionally, the Court finds that, at the time Biggins filed his petition, he was not under imminent danger of serious physical injury. Therefore, pursuant to 10 Del. C. § 8804(f), Biggins is precluded from in forma pauperis status and the instant complaint is dismissed until the appropriate filing costs and fees are paid. THEREFORE, the State's Motion to Revoke Petitioner James A. Biggins' In Forma Pauperis Status is hereby GRANTED.
IT IS SO ORDERED.