CHAPTER 276

FORMERLY

SENATE BILL NO. 349

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO PROCEEDINGS IN FORMA PAUPERIS.

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

Section 1. Amend Subsection 8801(3), Title 10 of the Delaware Code by deleting the phrase "subsection (3)" as it appears in that subsection and by inserting in lieu thereof the phrase "subsection (4)".

Section 2. Amend Section 8801, Title 10 of the Delaware Code by adding a new subsection "(9)" to read as follows:

"(9) 'Conditions of confinement' shall mean any aspect of a prisoner's complaint that does not address the fact or duration of a prisoner's confinement.".

Section 3. Amend Subsection 8802(d), Title 10 of the Delaware Code by deleting the phrase "by the court." As it appears in that subsection and by inserting in lieu thereof the phrase "by the court, subject to the limitations set forth in §8804(f).".

Section 4. Amend Section 8804, Title 10 of the Delaware Code by adding a new subsection "(f)" to read as follows:

"(f) In no event shall a prisoner file a complaint or appeal of a judgment arising from a complaint brought in forma pauperis if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or an appeal in a federal court or constitutional or statutory court of the State of Delaware that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury at the time that the complaint is filed. Complaints, or appeals therefrom, dismissed prior to the enactment of this section shall be counted for purposes of determining the number of previously dismissed proceedings. No petition for a writ of habeas corpus, or any appeal from the denial of any such petition, shall be dismissed under this subsection.".

Section 5. Amend Section 8804, Title 10 of the Delaware Code by adding a new subsection "(g)" to read as follows:

"(g) A prisoner may not bring or file a complaint relating to a condition of confinement, whether proceeding in forma pauperis or otherwise, unless the prisoner has fully exhausted all administrative remedies available through the institutional grievance procedure. The fact that monetary damages or any other form of legal or equitable relief may not be available through the grievance procedure shall not excuse the inmate from exhausting the institutional grievance procedure prior to filing a complaint.".

Section 6. 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 severable.

Approved June 10, 2002