     IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHARLES R. GETZ, JR.,                  §
                                       §   No. 527, 2017
      Plaintiff Below-                 §
      Appellant,                       §
                                       §
      v.                               §   Court Below: Superior Court
                                       §   of the State of Delaware
BOARD OF PAROLE,                       §
                                       §   C.A. No. N17C-11-054
      Defendant Below-                 §
      Appellee.                        §

                          Submitted: January 30, 2018
                           Decided: March 28, 2018

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                 ORDER

      This 28th day of March 2018, upon consideration of the rule to show

cause, the appellant’s response, and the record on appeal, it appears to the

Court that:

      (1)     The appellant, Charles R. Getz, Jr., filed this appeal from an

order of the Superior Court dated November 20, 2017, dismissing his

complaint seeking declaratory and injunctive relief against the Board of

Parole. The Superior Court dismissed the complaint as legally frivolous

because the Board of Parole had denied Getz’s application for parole in
August 2016, and thus there was no longer an “actual controversy”1 to support

a claim for declaratory or injunctive relief.

       (2)    Along with his notice of appeal, Getz also filed a motion to

proceed in forma pauperis in this Court. The motion did not comply with

Supreme Court Rule 20(h) and was stricken. The Court Clerk wrote to Getz

on January 2, 2018 and directed him to file a motion in compliance with the

Court’s rule by January 16, 2018. The letter informed Getz that no further

action would be taken in his appeal until he did so. Getz did not refile his

motion as instructed in the Clerk’s letter. Accordingly, on January 18, 2018,

the Court issued a notice to Getz to show cause why his appeal should not be

dismissed for his failure to prosecute.

        (3)   Getz filed a response to the notice to show cause on January 30,

2018. The response reflects Getz’s objection to Section 14 of the Court’s

Official Form Q, which requires an appellant who is moving to proceed in

forma pauperis to swear or affirm that, “I understand that, if I am permitted

to proceed in forma pauperis in this matter and the Court later dismisses this

action or otherwise enters a judgment against me, then the Court may require

me to pay all costs and fees associated with this action and, if so ordered, shall


1
  XL Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 1216 (Del. 2014)
(declaratory judgment action in Delaware must present an actual controversy that is ripe
for adjudication).
                                           2
retain jurisdiction over me until the costs and fees are paid.”2 Getz asserts that

Article I, § 9 of the Delaware Constitution requires the Courts to be open and

that he is entitled to a remedy “without sale, denial, or unreasonable delay or

expense.”3 He argues that the Court’s Rule 20, Official Form Q, and 10 Del.

C. ch. 88 are unconstitutional to the extent that they authorize the Court to

charge him a filing fee or to inquire into his financial status.

       (4)     We reject Getz’s argument. Permission to proceed as a pauper

without prepayment of the filing in a civil matter is a matter of privilege, not

a right.4 Neither Rule 20, Official Form Q nor 10 Del. C. ch. 88 bars an

indigent person access to courts in Delaware or otherwise violates an indigent

prisoner’s constitutional rights.5 Despite Getz’s argument to the contrary, the

United States Supreme Court has never held that courts cannot collect a fee

from prisoners filing civil lawsuits.6 We find no merit to Getz’s argument that




2
  Supr. Ct. Official Form Q. Section 14 of Official Form Q derives from 10 Del. C. §
8803(d), which provides, “If, at any time, the court dismisses an action or otherwise enters
judgment against a litigant proceeding in forma pauperis, the jurisdiction of the court over
the litigant continues until all costs and fees associated with the action are paid.”
3
  Del. Const. art. IV, § 9.
4
  See Walls v. Phelps, 2014 WL 279472, *2 (Del. Jan. 23, 2014) (citing Abdul-Akbar v.
McKelvie, 239 F.3d 307, 314 (3d Cir. 2001)).
5
  Id.
6
  See, e.g., Bruce v. Samuels, 136 S.Ct. 627, 632-33 (2016) (upholding Court of Appeals’
ruling that prisoner’s filing fees in current case were due simultaneously with fees owed in
prior cases because such an approach “more vigorously serves the statutory objective of
containing prisoner litigation….”).
                                             3
it is unconstitutional for the Court to charge him a fee or to inquire into his

financial status in order to determine his ability to pay a fee.

      (5)    Under the circumstances, we dismiss this appeal for Getz’s

failure to prosecute it diligently by refusing to comply with the Court’s

January 2, 2018 directive to file an in forma pauperis motion in compliance

with the Court’s rules.

      NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is

DISMISSED.

                                  BY THE COURT:


                                  /s/ Gary F. Traynor
                                  Justice




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