October 31, 2014
Phelps, et al.
Submitted: August 8, 2014
Dear Mr. Biggins and Ms. Ringgold:
Plaintiff James Arthur Biggins filed this action against personnel at the James T. Vaughn Correctional Center ("JTVCC"): warden Perry Phelps; security chief James Scarborough; staff lieutenant, hearing officer, and classification officer Larry Savage; and counselor Thomas Aiello (collectively, the "Defendants"). He seeks an injunction and compensatory damages for placement in isolated confinement and, subsequently, maximum security housing ("SHU"). Defendants have moved to dismiss Biggins's claim and to revoke his in forma pauperis status pursuant to the "three strikes" rule of 10 Del. C. § 8804(f).
On August 18, 2008, Biggins was allegedly involved in a fight with another inmate. He received a disciplinary write up and was "immediately" taken to isolated confinement. After fifteen days in isolated confinement, he was transferred to SHU. He was not afforded a hearing or found guilty of an infraction before either of these transfers. Biggins filed this action as a self-represented litigant and was granted leave to proceed in forma pauperis on December 3, 2009.
Biggins complains of violations of numerous contractual, statutory, and constitutional rights in multiple documents, not all of which have been accepted by the Court for filing. While the Court acknowledges the challenges faced by self-represented litigants, fairness and judicial order require limits as to what defendants (and the Court) must address. The Court, therefore, assumes that Biggins's Motion for Injunction and Compensatory Award is his complaint and that his Motion for Reargument amended the complaint with an explanation of his grounds for proceeding in forma pauperis. Accordingly, Biggins's complaint cites violations of (1) Fourteenth Amendment due process rights; (2) the Delaware Code; (3) Department of Correction ("DOC") Policy 4.2; (4) the Eighth Amendment; and (4) Title II of the Americans with Disabilities Act ("ADA"), arising out of being placed in isolated confinement and subsequently transferred to SHU without a hearing, finding of guilt, or proper classification.
The threshold question for the Court is whether this action is properly maintained under Delaware law. Defendants argue that Biggins is barred from proceeding in forma pauperis because he has failed to show imminent danger of serious physical injury. The Delaware Code, 10 Del. C. § 8804(f), sets forth a "three strikes" rule denying the benefit of in forma pauperis status to a prisoner who has brought at least three actions that have been dismissed as frivolous or malicious, or dismissed for failure to state a claim. The statute, however, carves out an exception when a plaintiff faces imminent danger of serious physical injury at the time he filed his complaint.
The Court notes, as a number of courts have in the past, that 10 Del. C. § 8804(f) applies to Biggins. Biggins, therefore, may not proceed in forma pauperis unless he can establish imminent danger of serious physical injury.
Persuasive authority elaborates on the meaning of "imminent danger of serious physical injury." For example, the threshold was met upon a showing that a prison failed to treat an inmate for a spreading gum infection that required extraction of multiple teeth, as well as upon a showing that a prison repeatedly placed an inmate near individuals on his "enemy alert list" and attacks ensued.The threshold was not met when a prisoner with high blood pressure alleged that he was forced to perform occasional outdoor work in inclement weather. Also relevant is a Delaware Supreme Court decision affirming that Biggins failed to establish imminent danger when his complaint in that particular action was filed "several months" after the complained-of incident.
Keeping in mind that Biggins is a self-represented litigant, the Court construes his complaint liberally. In his motion for reargument, Biggins claims that he faced imminent danger at the time of filing "pursuant to conditions of subsequent confinement." By attaching a copy of a motion alleging a failure to uphold terms of a 1988 settlement regarding health and safety conditions at JTVCC and related documents, Biggins suggests that continued placement at JTVCC posed imminent danger. Biggins's affidavit, referenced by the motion for reargument, further alleges imminent danger because he "cannot regularly receive sick call examinations [and] doctor appointments" in SHU and has been denied doctor-prescribed medical care. Finally, Biggins's briefs in opposition to Defendants' motion argue that he faced imminent danger because (i) Defendants would not provide him with an ice pack and pain medication for his injuries after the altercation and (ii) Defendants allowed his stitches "to remain five (5) days past [the] date [they were] required to be removed."
Biggins does not meet his burden to establish imminent danger of serious physical injury, even when his various filings are interpreted liberally and in conjunction with one another. He was out of isolated confinement by the time he filed his complaint, and high security housing itself does not pose an imminent risk of serious physical injury. The altercation and eye injury (not to mention the delay in removing stitches) occurred months before Biggins initiated this litigation. Furthermore, attachments about non-compliance with a 1988 settlement agreement do not convince the Court that Biggins faced imminent, serious harm when he filed his complaint. Although Biggins's herniated disc might be a legitimate medical issue and there have been delays in treatment,  his general grievances do not establish imminent danger of serious physical injury at the time he filed his complaint. Thus, Biggins has failed to show that he meets the statutory exception. Because he may not proceed in forma pauperis, the Court will not consider the merits of his complaint until the action is properly filed.
For the reasons set forth above, Defendants' Motion to Revoke Biggins's In Forma Pauperis Status is granted. The complaint will be dismissed unless Biggins pays all required filing fees within sixty days.
IT IS SO ORDERED.
Very truly yours,
John W. Noble, JJ.