          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    ADAM WENZKE,                                 §
                                                 §
         Plaintiff Below,                        §   No. 333, 2018
         Appellant,                              §
                                                 §   Court Below—Superior Court
         v.                                      §   of the State of Delaware
                                                 §
    WARDEN DANA METZGER,                         §   C.A. No. N18C-05-038
    DIRECTOR PAOLA MUNOZ,                        §
    DOCTOR SUSAN MUMFORD,                        §
    DOCTOR AUGUST, DOCTOR                        §
    PADRELL, DOCTOR TANYA                        §
    WILSON, JUDITH CAPRIO, and                   §
    CONNECTIONS,                                 §
                                                 §
         Defendants Below,                       §
         Appellees.                              §

                               Submitted: November 2, 2018
                               Decided:   January 14, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                         ORDER

        After consideration of the opening brief and the record below, 1 it appears to

the Court that:




1
  The appellees informed the Court that they did not plan to participate in the appeal unless directed
to do so because they were not served with the complaint and the appeal did not appear to raise a
substantial issue.
      (1)   The appellant, Adam Wenzke, filed this appeal from a Superior Court

order dismissing his complaint for failure to pay the $3.11 filing fee set by the

Superior Court. The Court concludes that the judgment on appeal must be reversed.

      (2)   On May 9, 2018, Wenzke filed a complaint under the Delaware Medical

Malpractice Act, 18 Del. C. § 6801 et seq. He alleged that, approximately thirteen

years ago, he was diagnosed with bi-polar disorder, depression, and anxiety.

Wenzke alleged that, since his transfer from Howard R. Young Correctional

Institution to James T. Vaughn Correctional Center in March 2016, the individual

defendants refused to prescribe him the medications he requested for his mental

health conditions and instead prescribed him medications that caused adverse side

effects. Wenzke filed a motion to proceed in forma pauperis with his complaint.

      (3)   After an initial review of the complaint, the Superior Court held that the

complaint should not be dismissed and that service of process should issue. The

Superior Court also granted Wenzke’s motion to proceed in forma pauperis and

directed him to pay 20% of the average daily balance in his inmate account for the

previous six months or time of incarceration, whichever time period was less. In a

letter dated May 10, 2018, the Deputy Prothonotary informed Wenzke that he had

to pay $3.11 before June 8, 2018 in order for the case to proceed. Wenzke was also

informed that service of process would not issue until the $3.11 was paid.




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      (4)    In a letter filed with the Prothonotary on June 8, 2018 and docketed on

June 11, 2018, Wenzke expressed confusion regarding the granting of his motion to

proceed in forma pauperis and the requirement that he pay $3.11. He enclosed a

copy of his inmate account statement for May 2018 showing an available balance of

$0.00. Wenzke also stated that he owed money to multiple entities, including

$350.00 to the District Court and $42.85 to the Department of Correction.

      (5)    In an order dated June 12, 2018 and docketed on July 18, 2018, the

Superior Court dismissed Wenzke’s complaint. The order stated that the complaint

was dismissed because: (i) Wenzke was informed on May 10, 2018 that he had to

pay the $3.11 filing fee by June 8, 2018 or the case would be dismissed; and (ii) as

of June 12, 2018, the Superior Court had not received any correspondence or filing

fee from Wenzke. An identical order, dated June 29, 2018, was docketed on July 2,

2018. This appeal followed.

      (6)    On appeal, Wenzke argues that the Superior Court should not have

dismissed his appeal because he did not have any money in his inmate account to

pay the filing fee and, contrary to the Superior Court’s findings, he did write to the

Superior Court regarding his lack of funds before the Superior Court dismissed his

complaint. Even assuming that the May 10, 2018 letter provided Wenzke with

sufficient notice that the complaint would be dismissed if he did not pay the $3.11




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filing fee,2 the dismissal order incorrectly stated that the Superior Court had not

received any correspondence from Wenzke.

       (7)     The Prothonotary received a letter from Wenzke on June 8, 2018 and

docketed the letter on June 11, 2018. In the letter, Wenzke stated that he did not

have any funds in his inmate account to pay the $3.11 filing fee and attached a copy

of his May 2018 inmate account balance. It appears that the Superior Court’s

mistaken belief that it had not received any correspondence from Wenzke was a

factor in the Superior Court’s decision to dismiss the complaint. The dismissal is

therefore reversed and this matter is remanded to the Superior Court so that it may

consider Wenzke’s letter stating that he did not have the funds to pay the $3.11 filing

fee.




2
 The letter did not expressly state that the case would be dismissed if Wenzke failed to pay the
$3.11 filing fee, but did state that for the case to proceed Wenzke had to pay the $3.11 filing fee
before June 8, 2018.



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      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is REVERSED and this matter is remanded for further proceedings consistent

with this Order. Jurisdiction is not retained.

                                        BY THE COURT:


                                        /s/ Gary F. Traynor
                                              Justice




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