                                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



                                                 March 6, 2015

Thomas E. Noble
SBI #115211
JTVCC
1181 Paddock Road
Smyrna, DE 19977

Scott W. Perkins, Deputy Attorney General
Department of Justice
Carvel State Building, 6th Floor
820 N. French Street
Wilmington, DE 19801

RE:      Thomas E. Noble v. Gov. Jack Markell, Atty. Gen. Beau Biden, Robert
         Coupe, David Pierce, and Anyone Else Responsible
         C.A. No. 10072-MA

Dear Parties:

         I have reviewed Defendant Warden David Pierce’s Motion to Revoke In

Forma Pauperis Status of Plaintiff Thomas E. Noble and the responses thereto. It

appears that I was wrong in granting Mr. Noble’s application to proceed in forma

pauperis because, for nearly three decades, Mr. Noble has filed numerous pro se

frivolous civil actions in the federal courts of Pennsylvania and Delaware under his

current name and two other names, i.e., Thomas D. Guyer and Walter M. Guyer.1

1
    See Noble v. Becker, et al., 2004 WL 96744, at *1 n. 1 (D. Del. Jan. 15, 2004).
                                        Page 1 of 4
A prisoner may not file a complaint in forma pauperis if that prisoner has, “on 3 or

more prior occasions, while incarcerated or detained in any facility” brought an

action that was dismissed on the grounds that “it was frivolous, malicious, or failed

to state a claim upon which relief may be granted[.]”2 The only exception to this

rule is when the prisoner “is under imminent danger of serious physical injury at

the time the complaint is filed.”3 For the reasons that follow, I recommend that

Mr. Noble’s in forma pauperis status be revoked.

      The record shows that on at least three prior occasions while he was

incarcerated, Mr. Noble filed pro se civil actions in federal courts that were found

to have been frivolous or to have failed to state a claim upon which relief might be

granted.4 Therefore, the three-strikes rule of 10 Del. C. § 8804(f) is applicable to

Mr. Noble’s current application and affidavit to proceed in forma pauperis. Since

Mr. Noble failed to allege that he was under imminent danger of serious physical


2
  10 Del. C. § 8804(f). See also In re: Petitions of Thomas E. Noble, 2015 WL
528211, at *1 (Del. Feb. 9, 2015).
3
  10 Del. C. § 8804(f). See also Walls v. Phelps, 2012 WL 3608681, at *1 (Del.
Super. Aug. 21, 2012) (granting the State’s motion to revoke a prisoner’s in forma
pauperis status).
4
  In re Guyer, 1996 WL 689376 (E.D. Pa. Nov. 27, 1996); Guyer v. Kelly, 1990
WL 158194 (E.D. Pa. Oct. 15, 1990); Guyer v. Sisk, 1990 WL 158209 (E.D. Pa.
Oct. 15, 1990); Guyer v. Hoagland, 1990 WL 139388 (E.D. Pa. Sept. 20, 1990);
Guyer v. Ferguson, 1990 WL 139387 (E.D. Pa. Sept. 20, 1990); Guyer v.
Sugerman, 1990 WL 135716 (E.D. Pa. Sept. 11, 1990); Guyer v. Seitz, et al., 1987
WL 17747 (E.D. Pa. Sept. 28, 1987); Guyer v. Crampton, 1986 WL 14731 (E.D.
Pa. Dec. 24, 1986); Guyer v. Zimmerman, 1986 WL 13638 (E.D. Pa. Nov. 26,
1986); Guyer v. Frame, 1986 WL 7195 (E.D. Pa. June 19, 1986).
                                      Page 2 of 4
injury at the time he submitted his current application and complaint, I should not

have approved his application and allowed Mr. Noble to file his complaint in

forma pauperis.

      In response to Warden Pierce’s motion to revoke, Mr. Noble argues that his

earlier filings should not be counted against him because § 8804(f) cannot be

applied retroactively or else it would violate the ex post facto clause. Section 8804

explicitly states that complaints or appeals therefrom that were dismissed prior to

the enactment of this section “shall be counted” for purposes of determining

whether a prison inmate may proceed in forma pauperis.             Furthermore, even

though it pertains to prison inmates, § 8804 is not a criminal statute to which the

prohibition against a retroactive application might apply.5 Instead, it is a civil

statute that establishes a procedure whereby indigent prisoners may be allowed to

file complaints in Delaware courts without paying the required filing fees. Those

prisoners who have a history of meritless civil litigation must pay the required fees

or else demonstrate that they are in imminent risk of serious injury. 6

      Mr. Noble also argues that he was actually physically assaulted by two of his

three cellmates during the time that he has been detained.            In his original


5
  See U.S. ex rel. Cannon v. Rescare, Inc., 2014 WL 4638715, at *4 (E.D.Pa. Sept.
16, 2014). Compare Keener v. Pennsylvania Board of Probation & Parole, 128
F.3d 143, 144 (3d Cir. 1997) (holding that lawsuits dismissed as frivolous before
the enactment of 28 U.S.C. § 1915(g) can be counted toward the statute’s “three
strikes” provisions).
                                       Page 3 of 4
complaint, Mr. Noble alleged that he had broken several bones in his hand while

defending himself against his cellmate before prison staff moved Mr. Noble to

another cell. In his amended complaint, Mr. Noble repeated this allegation and

also claimed to have been assaulted more recently by a convicted prisoner who was

considerably younger than Mr. Noble. However, it appears from these filings that

Mr. Noble’s main grievances concerned the steel shelf over his bed on which he

frequently hits his head, his lack of sleep due to the activities of prison guards, the

excessive air-conditioning inside the prison, and the insufficient quantities of food

at meal times. Overall, there is no evidence that at the time Mr. Noble filed his

complaint, he was under imminent danger of serious physical injury. Therefore, I

recommend that Mr. Noble’s in forma pauperis status be revoked, and that Mr.

Noble be required to pay a filing fee of $610.00 before the Court addresses his

complaint or his motions for preliminary relief.

        The parties are referred to Court of Chancery Rule 144 for the process of

taking exception to a Master’s Final Report.

                                                Respectfully,

                                                /s/ Kim E. Ayvazian

                                                Kim E. Ayvazian
                                                Master in Chancery

KEA/kekz

6
    See Walls v. Phelps, 2014 WL 279472, at *2 (Del. Jan. 23, 2014).
                                       Page 4 of 4
