Cinqmars v. Clews ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PENNI CINQMARS, )
)
Plaintiff, )
)
v. )
) C.A. No. S21C-07-019 CAK
BRITEN CLEWS, )
)
)
Defendant. )
)
)
)
)
)
ORDERS DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING COMPLAINT
Submitted: July 28, 2021
Penni Cinqmars (“Plaintiff”) has filed a Complaint against Briten Clews
(“Defendant”) and a motion to proceed in forma pauperis. This is my decision
denying the motion to proceed in forma pauperis and dismissing the Complaint.
I have reviewed Plaintiff’s in forma pauperis motion and her sworn affidavit
in support of the motion. Under 10 Del. C. § 8802, Plaintiff’s affidavit must include
a statement that the affiant is not able to pay the Court’s costs and fees associated
1
with the filing of her Complaint.1 I find that Plaintiff has failed to show that she
does not have income to pay the filing fee in this matter. As Plaintiff’s affidavit
shows, she has a monthly income of $917.00. Plaintiff also has supplied in her
affidavit that she has “no income for any attorneys or extra expense.” Being
permitted to proceed in forma pauperis is only relevant to the amount of court costs
and filing fees to be paid; attorney fees or extra expenses are irrelevant. Therefore,
as Plaintiff has failed to establish that she does not have income to pay the filing fee,
I DENY Plaintiff’s motion to proceed in forma pauperis.
In connection with reviewing the motion to proceed in forma pauperis, I also
have undertaken a review of Plaintiff’s Complaint and considered whether the action
should proceed.2 If the Complaint is factually or legally frivolous, I must dismiss
the Complaint pursuant to 10 Del. C. § 8803(b).3 10 Del. C. § 8801 defines “legally
1
10 Del. C. § 8802(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. . . . Such affidavit shall
contain a statement that the affiant is unable to pay the costs and fees. . . .”).
2
This review is made pursuant to 10 Del. C. § 8803(b), which provides:
(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.
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Id.
2
frivolous” as “a claim based on an indisputably meritless legal theory.” 4 I find that
the Complaint is legally frivolous because this Court does not have subject matter
jurisdiction and the Complaint has no merit. I find that Plaintiff is seeking equitable
relief over which the Superior Court does not have subject matter jurisdiction. 5
Moreover, Plaintiff’s Complaint is wholly without merit because Defendant’s
alleged defamatory statements were absolutely privileged as they were made during
the course of judicial proceedings and were relevant to a matter at issue in the case.6
Plaintiff’s Complaint is DISMISSED.
IT IS SO ORDERED this 2nd day of August, 2021.
/s/Craig A. Karsnitz
Craig A. Karsnitz
cc: Prothonotary
4
10 Del. C. § 8801(7).
5
Nelson v. Russo, 844 A.2d 301, 303 (Del. 2004) (“The Superior Court also lacks subject matter
jurisdiction because what [the plaintiff] really seeks is equitable relief.”).
6
See Barker v. Huang, 610 A.2d 1341, 1342 (Del. 1992) (explaining that Delaware recognizes the
absolute privilege that “protects from actions for defamation statements of judges, parties,
witnesses and attorneys offered in the course of judicial proceedings so long as the party claiming
the privilege shows that the statements issued as part of a judicial proceeding and were relevant to
a matter at issue in the case.”).
3