Opinion
C.A. No. S19C-01-023 CAK
03-19-2019
AUGUSTUS HEBREW EVANS, JR., Plaintiff, v. SUPERIOR COURT CRIMINAL RULES ADVISORY COMMITTEE, Defendants.
ORDERS DENYING MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT AND DEEMING MOTION TO STAY MOOT
1) Pending before the Court is a complaint which August Hebrew Evans, Jr. ("plaintiff") has filed against the Superior Court Criminal Rules Advisory Committee ("Committee"). In connection with this action, he has filed a motion to proceed in forma pauperis. This is my decision denying the motion to proceed in forma pauperis and dismissing the complaint as frivolous and meritless.
2) Review of Motion to Proceed in forma pauperis.
As plaintiff is aware, he is prohibited, pursuant to 10 Del. C. § 8804(f), from proceeding in forma pauperis because he previously has filed a multitude of frivolous claims while incarcerated. However, if he is under imminent danger of serious physical injury due to a condition of confinement, then he may overcome this bar. Consequently, plaintiff has asserted, generally, that he is in danger of imminent harm. However, he has not made a claim of danger based upon a condition of confinement. Even plaintiff admits in his motion to proceed in forma pauperis that the complaint does not address a prison issue and is not related to a condition of confinement. Instead, the complaint seeks some convoluted relief from the Committee with the goal of rendering invalid the June 4, 2014 amendment to Superior Court Criminal Rule 61. The statutory bar prevents plaintiff from proceeding in forma pauperis and the motion is DENIED.
In 10 Del.C. § 8804(f), it is provided in pertinent parts as follows:
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 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.
Evans v. Graves, 2013 WL 5460177 (Del Super. Sept. 30, 2013).
Answer to Paragraph 11 of Affidavit filed in Support of his Motion to Proceed in forma pauperis.
2) Review of Complaint.
In connection with a consideration of the motion to proceed in forma pauperis, the Court undertakes a review of the complaint to determine whether the action should proceed or whether the complaint should be dismissed because it is factually frivolous, malicious, and/or legally frivolous. In this case, the complaint is legally frivolous.
10 Del.C. § 8803(b).
Plaintiff's premise for this complaint is that the June 4, 2014 amendment to Superior Court Criminal Rule 61 ("Rule 61") is unconstitutional on several grounds. This premise is meritless. A person convicted of a crime has no constitutional rights to post-conviction relief. Whatever rights plaintiff has under Rule 61 are more than what is constitutionally required. Thus, a change in the rule cannot result in a constitutional violation. The Supreme Court has concluded that the constitutional arguments and arguments of unfair retroactivity as to the June 4, 2014 amendment are meritless. Because his underlying assertions of constitutional violations fail, plaintiff's claims against the Committee fail, also.
Turnage v. State, 127 A.3d 396, 2015 WL 6746644 (Del. Nov. 4, 2015) (TABLE).
Id.
Williams v. State, 129 A.3d 231, 2015 WL 7776322 (Del. Dec. 2, 2015) (TABLE); Turnage v. State, supra.
Additionally, plaintiff has not stated a claim against the Committee. In his request for relief, he seeks an injunction, a remedy this Court cannot enter. He also requests that the Court resolve the following questions: what are the actual functions of the Committee, what duty was owed to convicted persons by the June 4, 2014, amendment, whether appropriate notice of the rule change was given, and some indecipherable assertion of relief for individuals regarding Rule 61. The request for resolution of these questions shows that plaintiff is unaware of any duties owed him by the Committee under any law. In fact, the Committee does not owe to plaintiff or any other convicted individual any duty. Ultimately, what plaintiff seeks is a determination that the June 4, 2014 amendment to Rule 61 is invalid. That is an issue which only can be raised within a convicted person's criminal case. Plaintiff has not stated any claim for relief against the Committee.
Nelson v. Russo, 844 A.2d 301 (Del. 2004); Hall v. McGuigan, 1996 WL 945015 (Del. Super. Dec. 17, 1996), rearg. den., 1997 WL 527980 (Del. Super. Feb. 13, 1997).
Finally, the members of the Committee act as "arms of the Court." As such, they are entitled to absolute judicial immunity in connection with their actions in amending Rule 61.
Chang v. Mayo, 2016 WL 3640260, **2-3 (Del. Super. June 28, 2016), aff'd, 159 A.3d 284, 2017 WL 1157143 (Del. Mar. 27, 2017) (TABLE); Smith v. Delaware State Police, 2012 WL 5355639, *2 (Oct. 12, 2012); Buchanan v. Gay, 491 F.Supp.2d 483, 494-95 (D. Del. 2007).
For the foregoing reasons, the complaint is frivolous and legally meritless and is DISMISSED WITH PREJUDICE.
3) Review of Motion for a Stay.
Plaintiff recently filed with this Court a motion to stay Rule 61 proceedings. The motion appears to be filed on behalf of a number of individuals. Because this motion is predicated on the validity of the complaint in this matter, the motion is MOOT in light of the dismissal of this complaint.
IT IS SO ORDERED THIS 19th DAY OF MARCH, 2019.
I caution plaintiff that further complaints in this vein will result in the Court ordering a forfeiture of his good time credit. 10 Del. C. § 8805(a). --------
/s/_________
JUDGE cc: Prothonotary's Office
Augustus Hebrew Evans, Jr.