CHAPTER 411

FORMERLY

SENATE BILL NO. 377

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 10, TITLE 29 AND TITLE 11 RELATING TO COURT COSTS, FILING FEES AND CREATING A MECHANISM FOR SANCTIONING FRIVOLOUS PRISONER LITIGATION

WHEREAS, the State recognizes and affirms the right of Delaware's prison population to seek legal redress for violations of their civil rights; and

WHEREAS, unfortunately the purpose and effectiveness of the civil rights laws have been severely compromised by the filing of unprecedented numbers of civil rights claims by prisoners that are frivolous; and

WHEREAS, in Delaware, frivolous lawsuits are being filed by prisoners at rapidly increasing rates; and

WHEREAS, our Department of Correction and the Attorney General's Office has experienced an alarming increase in the amount of staff time required to defend the State from the overwhelming numbers of frivolous prisoner lawsuits; and

WHEREAS, the State's resources spent defending the State against frivolous lawsuits could be more effectively used towards resolution of meritorious claims and towards other obligations of the State: and

WHEREAS, the time and expense of litigating frivolous lawsuits has diverted valuable and limited public resources from efforts designed to provide better facilities and rehabilitative opportunities throughout our prison system; and

WHEREAS, all law abiding citizens must carefully weigh the strengths of a potential lawsuit against the costs, as well as the consequences of filing a frivolous suit; and

WHEREAS. prisoners currently have no similar disincentives to filing non-meritorious lawsuits; and

WHEREAS, legislation is necessary to establish appropriate disincentives thereby helping to deter frivolous and malicious lawsuits while retaining the ability of prisoners to file and pursue meritorious claims.

NOW, THEREFORE;

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 10, Delaware Code by inserting as new, Chapter 88, the following:

"Chapter 88. PROCEEDINGS IN FORMA PAUPERIS.

§ 8801. Definitions. When used in this Chapter:

1) 'Court or courts' shall mean all constitutional or statutory courts of this State. 'Federal court' shall mean any federal court of competent jurisdiction over actions brought by prisoners as that term is defined in subsection (3) of this section.

2) 'Prisoner' shall mean any individual subject to the supervision of the Department of Correction, including, but not limited to. those individuals housed in correctional facilities outside of the State of Delaware.

2) 'Legally frivolous' shall mean a claim based on an indisputably meritless legal theory.

3) 'Factually frivolous' shall mean a claim where the factual allegations of which are baseless, of little or no weight, value, or importance, not worthy of serious attention, or trivial.

4) 'Malicious' shall mean a claim designed to vex, injure or harass, or one which is otherwise abusive of the judicial process or which realleges pending or previously litigated claims.

5) 'Inmate account' shall mean an account maintained by the Department of Correction in which money is held for prisoners of this State.

§ 8802. In Forma Poiveris.

a) Notwithstanding any Delaware law to the contrary, the courts shall promulgate rules under which an individual who is unable to pre-pay all court costs and fees may proceed in forma pauperis.

b) Before an individual shall be permitted to proceed in firma pauperis for the purposes of this chapter, the individual must submit a sworn affidavit sufficient to allow the court to 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. Such affidavit shall contain a statement that the affiant is unable to pay the costs and fees, and shall provide complete information as to the affiant's identity, the nature, source and amount of all of the affiant's income, his or her spouse's income, all real and personal property owned either individually or jointly, all cash or bank accounts held either individually or jointly, any dependents of the affiant, and all debts and monthly expenses. The affiant shall further swear or affirm that the information in the affidavit is true and correct and made under penalty of perjury.

c) Intentionally omitting or falsifying information on the affidavit shall cause the court to recalculate the filing fee due. The amount that would have been due shall be trebled and the action shall be abated until the total amount is paid in full. Nothing in this section shall limit any court's authority to take further action against the affiant in the court's discretion.

d) Nothing in this chapter shall be interpreted to preclude an individual from filing an action in forma pauperis if determined to be appropriate by the court.

8803. Court Review.

a) In all cases in which a court has granted an individual leave to proceed in forma pauperis, the court shall issue an order authorizing the filing of the complaint and establishing the amount of court costs and tiling fees to be paid. The court may, in its discretion, establish a schedule for the payment of the costs and fees.

a) Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious, or upon a 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. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.

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. Any such order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious.

c) If, at any time, the court dismisses an action or otherwise enters judgment against a litigant proceeding in forma pauperis, the jurisdiction of the court over the litigant continues until all costs and fees associated with the action are paid.

d) When a court finds that a litigant has abused the judicial process by filing frivolous or malicious litigation, the court may enjoin that litigant from filing future claims without leave of court. When so enjoined, any future requests to file claims must be accompanied by an affidavit certifying that:

1) the claims sought to be litigated have never been raised or disposed of before in any court; and

2) the facts alleged are true and correct; and

3) the affiant has made a diligent and good faith effort to determine what relevant case law controls the legal issues raised; and

4) the affiant has no reason to believe the claims are foreclosed by controlled law; and

5) the affiant understands that the affidavit is made under penalty of perjury. § 8804. Prisoners.

a) When the individual seeking permission to proceed in forma pauperis is a prisoner, the prisoner shall file a certified summary of his or her inmate account, together with the affidavit required pursuant to § 8802 of the Chapter. The summary shall contain all account activity for the six (6) month period immediately preceding the filing of the complaint, or for the entire time the prisoner has been incarcerated, whichever time is less.

b) If a court determines that a prisoner may proceed in farina pauperis, the court shall issue an order directing that the complaint be filed setting forth the total amount to be paid and establishing a schedule for payment. The schedule shall be established as follows:

1) The prisoner shall pay 20% of the average daily balance of the prisoner's inmate account over the previous six (6) month period or the entire time that prisoner has been incarcerated, whichever time is less.

2) In each successive month, until the established court costs and filing fees are paid in full, the prisoner shall pay 10% of the average daily balance of the prisoner's inmate account for the preceding month.

c) Nothing in this section shall limit the court's ability to demand a greater amount than would result from this calculation based upon the information provided in the affidavit.

d) Nothing in this section shall prohibit a prisoner from paying more than the minimum due under the court's calculation.

e) To the extent that a prisoner refuses to pay fees and costs as ordered by the court, pursuant to this section, the court may order the Department to debit the prisoner's inmate account in accordance with 29 Del.C, § 8903(13).

§ 8805. Good Time.

a) Upon a court's finding pursuant to § 8803 (b) or (c) of this chapter that a prisoner has filed a factually frivolous or malicious action, or upon a 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 issue(s) raised, the court 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. Upon the court's forwarding of such an order to the Department of Correction setting forth such a finding, the Department shall forfeit the prisoner's accumulated good time as ordered by the court. To the extent the Department does not have jurisdiction to forfeit accumulated good-time for a particular prisoner, the court shall forward the order to the appropriate agency who shall forfeit the prisoners accumulated good-time as ordered by the court.

b) Upon the finding of a federal court that a prisoner has filed a factually frivolous or malicious action as defined by this chapter, or upon a finding that the action is legally frivolous as defined by this chapter and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of issue(s) raised, the federal court 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 federal court up to and including every month until the action was disposed of by the federal court. Upon the federal court's forwarding of such an order to the Department of Correction setting forth such a finding, the Department shall forfeit the prisoner's accumulated good time as ordered by the federal court. To the extent the Department does not have jurisdiction to forfeit accumulated good-time for a particular prisoner, the federal court shall forward the order to the appropriate agency who shall forfeit the prisoners accumulated good-time as ordered by the federal court."

Section 2. Amend § 8903, Title 29, Delaware Code by inserting as new subsection (13) the following:

"(13) Upon an order of the court directing the Department to debit monies in an inmate account in accordance with Chapter 88, Title 10, Delaware Code, the Department shall, to the extent adequate funds are available, transfer such monies to the court. To the extent an inmate's account does not have adequate funds to comply with the court's order, the Department shall debit the inmate's account for future payment to the court. The Department shall retain records of an inmate's account upon the release of the prisoner from the custody of the Department if such account has a negative balance pursuant to a court order under Chapter 88, Title 10. The outstanding balance of such an account shall be reinstated should that person be committed to the custody of the Department at some future time. Notwithstanding the above, no court order pursuant to Chapter 88, Title 10, Delaware Code shall have priority over charges or debits pursuant to 11 Del,C, § 6536(b) or (c)."

Section 3. Amend § 4382, Title 11, Delaware Code by inserting as new subsection (d) as follows:

"(d) Any person subject to the custody of the Department at Level IV or Level V, who is found by a court or a federal court to have filed a factually frivolous claim, malicious claim, or legally frivolous claim and sanctioned by the court or federal court pursuant to 10 Del... § 8805(a) or (b), shall be deemed to have failed to earn behavior good-time credits within the meaning of § 4381(b) of this Title and shall have a portion of his or her good time credits accumulated pursuant to § 4381(b) forfeited to the extent and in accordance with the order issued pursuant to 10 ))el .0 § 8805."

Section 4. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved June 28, 1996