                             COURT OF CHANCERY
                                   OF THE
                             STATE OF DELAWARE

 JOHN W. NOBLE                                               417 SOUTH STATE STREET
VICE CHANCELLOR                                              DOVER, DELAWARE 19901
                                                            TELEPHONE: (302) 739-4397
                                                            FACSIMILE: (302) 739-6179
                                  October 31, 2014

Via File & ServeXpress
 and First Class Mail

Mr. James Arthur Biggins                             Kenisha L. Ringgold, Esquire
SBI No. 319264, Unit No. 19                          Department of Justice
James T. Vaughn Correctional Center                  Carvel State Office Building
1181 Paddock Road                                    820 N. French Street, 6th Floor
Smyrna, DE 19977                                     Wilmington, DE 19801

      Re:    Biggins v. Phelps, et al.
             C.A. No. 5121-VCN
             Date 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”).1 He

seeks an injunction and compensatory damages for placement in isolated

1
 Three additional defendants named in Biggins’s complaint, “Michael Costello,”
“Mark D. Drum,” and “Michael Fowler,” are not parties to this action because they
were never served. See Sheriff’s Return Showing Unable to Accept Service for
Michael Costello; Showing Unknown as to Mark Drum; Showing Unknown as to
Michael Fowler, Nov. 9, 2011.
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 2

confinement and, subsequently, maximum security housing (“SHU”).2 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.3 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


2
  Pl.’s Mot. for Inj. and Compensatory Award (“Compl.”) 2. Due to a lack of
formal formatting, pincites for this document refer to pages of the efiled pdf.
3
  These facts can be found at page 2 of Biggins’s Motion for Injunction and
Compensatory Award.
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 3

that his Motion for Reargument amended the complaint with an explanation of his

grounds for proceeding in forma pauperis.4 Accordingly, Biggins’s complaint

cites violations of (1) Fourteenth Amendment due process rights; (2) the Delaware

Code;5 (3) Department of Correction (“DOC”) Policy 4.2;6 (4) the Eighth



4
  The only official complaint in the record is the Motion for Injunction and
Compensatory Award, with which Defendants were duly served. See Issued
Summons to NCC Sheriff, Oct. 27, 2011. It is also fair to consider the Motion for
Reargument because Defendants focus on Biggins’s in forma pauperis status in
their briefs.
5
  See 11 Del. C. § 6517 (“Duties and responsibilities of the Commissioner”); 11
Del. C. § 6535 (“The Department shall promulgate rules and regulations for the
maintenance of good order and discipline in the facilities and institutions of the
Department . . . .”); 29 Del. C. § 8903 (“Powers, duties and functions—
Commissioner”).
6
  “DOC Policy No. 4.2 at (V),” Compl. 2, is not attached to the complaint. The
Court infers that the reference is to Policy Number 4.2 regarding “Rules of
Conduct for Offenders.” The Policy, in relevant part, states:

      POLICY: It is the policy of the Department of Correction to establish
      and maintain rules of conduct for offenders . . . .
      The Bureau Chiefs shall be responsible for developing rules of
      conduct that specify prohibited behavior, penalties that may be
      imposed for rule violations, and enforcement procedures. The
      enforcement procedures must take into account due process
      requirements including appeal provisions.

Dep’t of Corr., Policy Manual, Policy Number 4.2(V) (revised Jan. 15,
2009), available at http://doc.delaware.gov/downloads/policies/policy_4-
2.pdf.
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 4

Amendment;7 and (4) Title II of the Americans with Disabilities Act (“ADA”),8

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.9 The statute, however, carves


7
  The complaint itself alleges cruel and unusual punishment arising out of transfers
to isolated confinement and SHU, not deliberate indifference to serious medical
needs. Biggins’s affidavit, submitted to support his in forma pauperis status, and
his briefing on the pending motion later advance an Eighth Amendment argument
based on a denial of medical care.
8
  See Americans with Disabilities Act, 42 U.S.C. § 12132 (2012) (“[N]o qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.”).
9
  The provision states:

      In no event shall a prisoner file a complaint or appeal of a judgment
      arising from a complaint brought in forma pauperis if the prisoner has,
      on 3 or more prior occasions . . . brought an action or an appeal . . .
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 5

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.10 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




      that was dismissed on the grounds that it was frivolous, malicious or
      failed to state a claim upon which relief may be granted unless the
      prisoner is under imminent danger of serious physical injury at the
      time that the complaint is filed.

10 Del. C. § 8804(f) (emphasis added).
10
   See, e.g., Biggins v. Dr. Robinson, 12 A.3d 1153, 2011 WL 400405, at *1 (Del.
Feb. 8, 2011) (TABLE) (“As a frequent but consistently unsuccessful pro se
litigant, Biggins is subject to the ‘three strikes’ provision of title 10, section 8804
of the Delaware Code.”); Biggins v. Biden, 2010 WL 3496838, at *4 (Del. Super.
Sept. 8, 2010) (“Biggins . . . has, on at least three occasions, . . . brought an action
or appeal in state or federal court found to be frivolous, malicious, or lacking a
claim upon which relief may be granted.”), aff’d, 9 A.3d 475 (Del. 2010)
(TABLE).
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 6

placed an inmate near individuals on his “enemy alert list” and attacks ensued.11

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.12 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.13

      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.”14 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

11
   See Brown v. Johnson, 387 F.3d 1344, 1349-50 (11th Cir. 2004) (discussing
sister circuit decisions involving the federal Prison Litigation Reform Act). The
Prison Litigation Reform Act contains a provision similar to its Delaware
counterpart. See 28 U.S.C. § 1915(g) (2012).
12
   Brown, 387 F.3d at 1350 (referring to Martin v. Shelton, 319 F.3d 1048 (8th Cir.
2003)).
13
   Biggins v. Danberg, 3 A.3d 1096, 2010 WL 3310591, at *1 (Del. Aug. 24, 2010)
(TABLE).
14
   Mot. for Reargument.
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 7

reargument, further alleges imminent danger because he “cannot regularly receive

sick call examinations [and] doctor appointments” in SHU15 and has been denied

doctor-prescribed medical care.16      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.”17

      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

15
   Biggins Aff. ¶ 5.
16
   Biggins Aff. ¶ 3. Biggins’s final brief also makes this argument. Pl.’s Resp. to
State Defs.’ Opp’n to Mot. to Dismiss Pl.’s Mot. for Injunctive Relief and to
Revoke Pl.’s In Forma Pauperis Status (“Pl.’s Resp.”) 2-3.
17
   See Pl.’s Opp’n Mot. to State Defs.’ Mot. to Dismiss 8; see also Pl.’s Resp. 1, 3.
Biggins v. Phelps, et al.
C.A. No. 5121-VCN
October 31, 2014
Page 8

his complaint. Although Biggins’s herniated disc might be a legitimate medical

issue and there have been delays in treatment,18 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,

                                               /s/ John W. Noble

JWN/cap
cc: Register in Chancery-K




18
     See Biggins Aff. Exs. A3, B2.
