TITLE 10

Courts and Judicial Procedure

Fees and Costs

CHAPTER 88. PROCEEDINGS IN FORMA PAUPERIS


When used in this chapter:

(1) "Complaint" shall mean any civil action or miscellaneous action or any application for an extraordinary writ.

(2) "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.

(3) "Court" or "courts" shall mean all constitutional or statutory courts of this State.

(4) "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.

(5) "Federal court" shall mean any federal court of competent jurisdiction over actions brought by prisoners as that term is defined in paragraph (9) of this section.

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

(7) "Legally frivolous" shall mean a claim based on an indisputably meritless legal theory.

(8) "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.

(9) "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.

70 Del. Laws, c. 411, § 1; 71 Del. Laws, c. 325, § 1; 73 Del. Laws, c. 276, §§ 1, 2.;

(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 forma 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, the affiant's 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, subject to the limitations set forth in § 8804(f) of this title.

70 Del. Laws, c. 411, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 276, § 3.;

(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 filing fees to be paid. The court may, in its discretion, establish a schedule for the payment of the costs and fees.

(b) 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.

(d) 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.

(e) 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;

(2) The facts alleged are true and correct;

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

(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.

70 Del. Laws, c. 411, § 1.;

(a) When the individual seeking permission to proceed in forma pauperis is a prisoner, the prisoner shall file a certified summary of the prisoner's inmate account, together with the affidavit required pursuant to § 8802 of this title. The summary shall contain all account activity for the 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 forma 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 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 § 8903(13) of Title 29.

(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 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.

(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.

70 Del. Laws, c. 411, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 276, §§ 4, 5.;

(a) Upon a court's finding pursuant to § 8803(b) or (c) of this title 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.

70 Del. Laws, c. 411, § 1.;