Thomas E. Noble v. Gov. Jack Markell, Atty. Gen. Beau Biden, Robert Coupe, David Pierce and Anyone Else Responsible ( 2015 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KIM E. AYVAZIAN CHANCERY COURTHOUSE
MASTER IN CHANCERY 34 The Circle
GEORGETOWN, DELAWARE 19947
AND
NEW CASTLE COUNTY COURTHOUSE
500 NORTH KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19980-3734
March 6, 2015
Thomas E. Noble
SBI #115211
JTVCC
1181 Paddock Road
Smyrna, DE 19977
Scott W. Perkins, Deputy Attorney General
Department of Justice
Carvel State Building, 6th Floor
820 N. French Street
Wilmington, DE 19801
RE: Thomas E. Noble v. Gov. Jack Markell, Atty. Gen. Beau Biden, Robert
Coupe, David Pierce, and Anyone Else Responsible
C.A. No. 10072-MA
Dear Parties:
I have reviewed Defendant Warden David Pierce’s Motion to Revoke In
Forma Pauperis Status of Plaintiff Thomas E. Noble and the responses thereto. It
appears that I was wrong in granting Mr. Noble’s application to proceed in forma
pauperis because, for nearly three decades, Mr. Noble has filed numerous pro se
frivolous civil actions in the federal courts of Pennsylvania and Delaware under his
current name and two other names, i.e., Thomas D. Guyer and Walter M. Guyer.1
1
See Noble v. Becker, et al., 2004 WL 96744, at *1 n. 1 (D. Del. Jan. 15, 2004).
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A prisoner may not file a complaint in forma pauperis if that prisoner has, “on 3 or
more prior occasions, while incarcerated or detained in any facility” brought an
action that was dismissed on the grounds that “it was frivolous, malicious, or failed
to state a claim upon which relief may be granted[.]”2 The only exception to this
rule is when the prisoner “is under imminent danger of serious physical injury at
the time the complaint is filed.”3 For the reasons that follow, I recommend that
Mr. Noble’s in forma pauperis status be revoked.
The record shows that on at least three prior occasions while he was
incarcerated, Mr. Noble filed pro se civil actions in federal courts that were found
to have been frivolous or to have failed to state a claim upon which relief might be
granted.4 Therefore, the three-strikes rule of 10 Del. C. § 8804(f) is applicable to
Mr. Noble’s current application and affidavit to proceed in forma pauperis. Since
Mr. Noble failed to allege that he was under imminent danger of serious physical
2
10 Del. C. § 8804(f). See also In re: Petitions of Thomas E. Noble, 2015 WL
528211, at *1 (Del. Feb. 9, 2015).
3
10 Del. C. § 8804(f). See also Walls v. Phelps, 2012 WL 3608681, at *1 (Del.
Super. Aug. 21, 2012) (granting the State’s motion to revoke a prisoner’s in forma
pauperis status).
4
In re Guyer, 1996 WL 689376 (E.D. Pa. Nov. 27, 1996); Guyer v. Kelly, 1990
WL 158194 (E.D. Pa. Oct. 15, 1990); Guyer v. Sisk, 1990 WL 158209 (E.D. Pa.
Oct. 15, 1990); Guyer v. Hoagland, 1990 WL 139388 (E.D. Pa. Sept. 20, 1990);
Guyer v. Ferguson, 1990 WL 139387 (E.D. Pa. Sept. 20, 1990); Guyer v.
Sugerman, 1990 WL 135716 (E.D. Pa. Sept. 11, 1990); Guyer v. Seitz, et al., 1987
WL 17747 (E.D. Pa. Sept. 28, 1987); Guyer v. Crampton, 1986 WL 14731 (E.D.
Pa. Dec. 24, 1986); Guyer v. Zimmerman, 1986 WL 13638 (E.D. Pa. Nov. 26,
1986); Guyer v. Frame, 1986 WL 7195 (E.D. Pa. June 19, 1986).
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injury at the time he submitted his current application and complaint, I should not
have approved his application and allowed Mr. Noble to file his complaint in
forma pauperis.
In response to Warden Pierce’s motion to revoke, Mr. Noble argues that his
earlier filings should not be counted against him because § 8804(f) cannot be
applied retroactively or else it would violate the ex post facto clause. Section 8804
explicitly states that complaints or appeals therefrom that were dismissed prior to
the enactment of this section “shall be counted” for purposes of determining
whether a prison inmate may proceed in forma pauperis. Furthermore, even
though it pertains to prison inmates, § 8804 is not a criminal statute to which the
prohibition against a retroactive application might apply.5 Instead, it is a civil
statute that establishes a procedure whereby indigent prisoners may be allowed to
file complaints in Delaware courts without paying the required filing fees. Those
prisoners who have a history of meritless civil litigation must pay the required fees
or else demonstrate that they are in imminent risk of serious injury. 6
Mr. Noble also argues that he was actually physically assaulted by two of his
three cellmates during the time that he has been detained. In his original
5
See U.S. ex rel. Cannon v. Rescare, Inc., 2014 WL 4638715, at *4 (E.D.Pa. Sept.
16, 2014). Compare Keener v. Pennsylvania Board of Probation & Parole, 128
F.3d 143, 144 (3d Cir. 1997) (holding that lawsuits dismissed as frivolous before
the enactment of 28 U.S.C. § 1915(g) can be counted toward the statute’s “three
strikes” provisions).
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complaint, Mr. Noble alleged that he had broken several bones in his hand while
defending himself against his cellmate before prison staff moved Mr. Noble to
another cell. In his amended complaint, Mr. Noble repeated this allegation and
also claimed to have been assaulted more recently by a convicted prisoner who was
considerably younger than Mr. Noble. However, it appears from these filings that
Mr. Noble’s main grievances concerned the steel shelf over his bed on which he
frequently hits his head, his lack of sleep due to the activities of prison guards, the
excessive air-conditioning inside the prison, and the insufficient quantities of food
at meal times. Overall, there is no evidence that at the time Mr. Noble filed his
complaint, he was under imminent danger of serious physical injury. Therefore, I
recommend that Mr. Noble’s in forma pauperis status be revoked, and that Mr.
Noble be required to pay a filing fee of $610.00 before the Court addresses his
complaint or his motions for preliminary relief.
The parties are referred to Court of Chancery Rule 144 for the process of
taking exception to a Master’s Final Report.
Respectfully,
/s/ Kim E. Ayvazian
Kim E. Ayvazian
Master in Chancery
KEA/kekz
6
See Walls v. Phelps, 2014 WL 279472, at *2 (Del. Jan. 23, 2014).
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