Thomas E. Noble v. Gov. Jack Markell ( 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
July 30, 2015
Thomas E. Noble
SBI 00115211
JTVCC
1181 Paddock Road
Smyrna, DE 19977
Ryan P. Connell, Esquire
State of Delaware
Department of Justice
Carvel State Building
820 N. French Street, 6th Floor
Wilmington, DE 19801
RE: Thomas E. Noble v. Gov. Jack Markell, et. al.
C.A. No. 10072-MA
Dear Parties:
Pending before me is a Motion to Disqualify and a Motion to Stay Order
filed pro se by an inmate, Thomas E. Noble. For the reasons that follow, both
motions are denied.
On March 6, 2015, I issued a final report recommending the revocation of
Mr. Noble’s in forma pauperis status upon the motion filed by Defendant Warden
David Pierce, which had informed the Court of Mr. Noble’s prior history of filing
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pro se frivolous lawsuits under different names in the federal courts of
Pennsylvania and Delaware.1 On March 19, 2015, the copy of my final report that
had been mailed to Mr. Noble was returned to the Court by the United States Post
Office because Mr. Noble had been transferred to a different institution and had
failed to notify the Court of his new address. The final report was resent to Mr.
Noble’s new address on March 19th, but on that date, the Court received a letter
from Mr. Noble dated March 9, 2015, attached to which was a “multi-layered
motion” seeking to disqualify me for conflict of interest and bias, requesting the
provision of certain documents Mr. Noble had previously filed, and the entry of
default judgment against all the defendants who had failed to answer Mr. Noble’s
complaint.2 Thereafter, on April 1, 2015, Mr. Noble filed a motion to stay the
order, i.e., my final report, until after his documents had been returned to him and
an impartial judicial officer was appointed to adjudicate his motion to disqualify
me.3
Mr. Noble seeks my disqualification because I allegedly: (a) failed to
provide him with copies of his amended complaint and other pro se documents,
forcing him to proceed solely by memory; (2) allowed his case to “just sit
gathering dust, so to speak, while effectively obstructing the service of [Mr.
1
Docket Item (hereinafter “DI”) 32.
2
DI 52 & 53.
3
DI 54.
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Noble’s] amended complaint[;]” and (3) have been influenced by “behind-the-
scenes communications” with Defendant Pierce’s attorney.4 The so-called
“behind-the-scenes communications refers to a cover letter to the Court filed on
October 15, 2014,5 which enclosed courtesy copies of Defendant Pierce’s Motion
to Revoke In Forma Pauperis Status and Response to Motions for Preliminary
Relief. The attorney sent a copy of this letter to Mr. Noble, but without the
enclosures that already had been e-filed on October 14th.6 Mr. Noble found this
omission to be unethical behavior on the attorney’s part and, apparently, mine as
well.7
4
DI 53.
5
DI 34.
6
DI 32 & 33.
7
In a letter to the Court dated October 19, 2014, Mr. Noble stated the following in
a postscript:
After closing this short letter I happened to notice at the bottom of Mr.
Perkins’ letter 10-15-14 to you, “cc: Thomas E Noble (SBI #115211) (w/out
enclosures).” To me that gives the appearance of him trying to keep me
from knowing what it was; to wit: “(w/out enclosures)”, as though he was up
to something he couldn’t be “above-board” about, perhaps even trying to
impugn Your Honor’s integrity by soliciting you to do something unethical.
Further, I believe court rules say in so many words that opposing
side’s counsel must serve me a copy of everything included with what was
sent for filing; otherwise what Mr. Perkins sent for filing is to be deemed to
not have been filed in the first instance, for failure to perfect serve.
And, when taken together in the context of the unethical misconduct
Mr. Perkins blatantly felt safe to openly manifest on the record of the Court
– pointed out by me in my herewith reply and answer (including many
examples of prevarication, deception, and even trying to abet violations of
prison rules)], I would put nothing past a man so devoid of character. And I
implore you respectfully to not allow him to insult Your Honor like that.
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Mr. Noble’s motion to disqualify is governed by Rule 2.11(A) of the Code
of Judicial Conduct, which states:
(A) A judge should disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:
(1) The judge has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding ….8
Judicial impartiality is fundamental to due process.9 As a result, the standards
governing judicial conduct require both actual impartiality as well as the
appearance of impartiality.10 If there is a claim that the judge is personally biased
or prejudiced concerning a party, a judge must engage in a two-part analysis. First,
the judge must, “as a matter of subjective belief, be satisfied that he can proceed to
Especially as to how, if the [] is appealed, the justices of the Del. Supreme
Court might deem it if the Court of Chancery starts allowing State lawyers
to disregard some of its rules and raises questions about impartiality.
Accordingly, I am respectfully asking you to construe this as a motion
to strike from the record everything filed by Mr. Perkins, and to reprimand
him with a warning to not again try to approach the Court in a clandestine
manner.
I note too that not only is he a professional lawyer [bound by the code
of ethics for lawyers], who should have known better than to pull a stunt like
that, but also he has no legitimate excuse for not serving me a complete set
copy of all case related documents, for, unlike me, the State will mail out
everything for him “at State expense.”
“For your eyes only” messages engaged in the manner of C.I.A.
espionage is improper in a court of equity; highly improper at the current
vulnerable state of proceedings.
DI 36.
8
Del. Judge’s Code of Judicial Conduct § 2.11.
9
Los v. Los, 595 A.2d 381, 383 (Del. 1991).
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hear the cause free of bias or prejudice concerning that party. Second, even if the
judge believes that he has no bias, situations may arise where, actual bias aside,
there is the appearance of bias sufficient to cause doubt as to the judge’s
impartiality.”11
As a subjective matter, I have no bias or prejudice against Mr. Noble, and
believe that I will judge impartially. Furthermore, none of Mr. Noble’s conclusory
accusations establish bias, prejudice or a conflict of interest as a matter of law.
Every litigant is understandably anxious to have his or her case resolved quickly,
but Mr. Noble’s complaint is just one of many complaints and civil miscellaneous
matters on my docket. In addition, delays in this case have been caused, in part, by
Mr. Noble’s transfers to different institutions and his numerous pro se filings,
which have had to be reviewed and addressed. Furthermore, although Mr. Noble
has made many demands on the Court to provide him with copies of his pro se
filings, there is no requirement that the Court provide Mr. Noble with copies of his
own filings when he has the opportunity to make copies himself. According to the
affidavit of Michael Little, the Legal Services Administrator at the James T.
Vaughn Correctional Center where Mr. Noble was initially housed, indigent
inmates are permitted to acquire pens, papers and other supplies necessary to
access the courts, without paying for them first, while notary services and
10
Id. at 383-384 (citing Ungar v. Sarafite, 376 U.S. 575, 588 (1964)).
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photocopying are provided to inmates free of charge.12 Finally, Mr. Noble’s claim
that I have been influenced by “behind-the-scenes” communications with the
attorney representing Defendant Pierce is entirely without foundation. Mr. Noble
has simply misconstrued the longstanding practice of sending courtesy copies of
documents filed in the Court directly to judges’ chambers. Since those same
documents had already been filed in the Court, there was no need for the attorney
to have duplicated service of those documents on Mr. Noble with the copy of the
October 15th cover letter to me.
I am satisfied that I am, in fact, unbiased and that these proceedings are
impartial and will also appear impartial. Therefore, I recommend that the Court
deny Mr. Noble’s motion for disqualification.
Mr. Noble is asking the Court to grant a stay of the order revoking his in
forma pauperis status. The Court’s authority to grant a stay is part of its inherent
power to exercise discretion in controlling the disposition of actions on its docket
“in order to promote economies of time and effort for the court, litigants, and
counsel.”13 The Court exercises its discretion only upon a “clear showing by the
moving party of hardship or inequity so great as to overbalance all possible
11
Id. at 384-385.
12
Affidavit of Michael Little, at ¶ 4. Exhibit A, Response to Motions for
Preliminary Relief. DI 33.
13
Spiro v. Vions Technology Inc., 2014 WL 1245032, at *11 (Del. Ch. Mar. 24,
2014) (quoting Joseph v. Shell Oil Co., 498 A.2d 1117, 1123 (Del. Ch. 1985)).
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inconvenience or delay to his opponent.”14 Mr. Noble’s application for a stay
should be denied because he has failed to show any hardship or inequity. His
justification for a stay – until the return of legal documents that were seized from
him – is now moot because his legal documents have been returned to him by
Defendant Pierce.15 He also wants the order stayed until an impartial judicial
officer is appointed to adjudicate the above motion to disqualify me, but only the
judicial officer whose impartiality is being challenged can address the motion to
disqualify in the first instance. It would be a hardship for the defendants and
inequitable if the Court stayed these proceedings for what amounts to mere
delaying tactics by Mr. Noble. The record is clear that Mr. Noble has a history of
filing frivolous complaints, and he should never have been approved for in forma
pauperis status in the first place.16 Therefore, I recommend that the Court deny his
motion to stay.
14
Id. (quoting Lanova Corp. v. Atlas Imperial Diesel Engine Co., 64 A.2d 419, 420
(Del. Super. 1949)).
15
The record includes a letter dated March 31, 2015, from Mr. Noble and filed on
April 8, 2015, enclosing a letter to Nancy Piersall, thanking her for her efforts in
getting Defendant Pierce to return “at least most of [Mr. Noble’s] case-related
materials and other non-contraband property.” DI 56.
16
In denying Mr. Noble’s application to proceed in forma pauperis in an unrelated
proceeding, the Superior Court questioned Mr. Noble’s candor where the sworn
affidavit regarding his ability to pay appeared in direct conflict with his previous
representations that he has a substantial asset, i.e., a house. See Noble v. Pierce,
C.A. No. N14M-10-020 DCS, (Del Super.) (Order). DI 2.
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I am waiving a draft report and issuing this recommendation as my final
report. I refer the parties to Court of Chancery Rule 144 for the process of taking
exception to a Master’s Final Report.
Sincerely,
/s/ Kim E. Ayvazian
Kim E. Ayvazian
Master in Chancery
KEA/kekz
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