           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                          IN AND FOR KENT COUNTY

LARRY D. MARVEL,                        :
                                        :     C.A. No. K14C-11-006 WLW
             Plaintiff,                 :
                                        :
      v.                                :
                                        :
STATE OF DELAWARE,                      :
                                        :
             Defendant.                 :

                                      ORDER

      Upon consideration of Plaintiff's civil complaint, Motion to Proceed In Forma
Pauperis, and the record in this case, it appears:
      Larry D. Marvel (hereinafter “Plaintiff”) filed a civil complaint and Motion to
Proceed In Forma Pauperis with the Court on November 3, 2014. In the complaint,
Plaintiff alleges that his Constitutional rights were violated by the State of Delaware
based on the jury instructions from Plaintiff’s criminal trial in May of 2006. He also
believes his rights were violated by the State based on his denial of postconviction
relief. Plaintiff is seeking compensatory and punitive damages totaling $11,000,000.
Upon reviewing Plaintiff’s in forma pauperis motion pursuant to 10 Del. C. § 8803
to determine whether the accompanying complaint is factually or legally frivolous,
this Court concludes it is “legally frivolous” because it fails to state a claim upon
which relief can be granted.
                                 BACKGROUND
      Plaintiff filed his complaint on November 3, 2014 against the State of Delaware
(hereinafter “the State”) for breach of contract. In May 2006, the Plaintiff was found
Larry D. Marvel v. State of Delaware
C.A. No. K14C-11-006 WLW
December 8, 2014


guilty of Criminal Solicitation in the Second Degree and Conspiracy in the Second
Degree. Plaintiff was sentenced to life in prison plus two (2) years at Level V. This
is not the Plaintiff’s first action against the State, as his litigious history is quite
extensive. On September 18, 2007, the Delaware Supreme Court affirmed the
Plaintiff’s convictions.1 Since 2006, Plaintiff filed federal petitions for habeas corpus
relief2, three (3) motions for correction of an illegal sentence, and previous motions
for postconviction relief.
       The Supreme Court of Delaware affirmed the Superior Court’s denial of the
first postconviction motion on September 10, 2008. Plaintiff again appealed and
requested that under Superior Court Criminal Rule 61(i)(5), the Delaware Supreme
Court appoint counsel so he may pursue his claims of ineffective assistance with
respect to his 2006 trial. On August 23, 2013, the Delaware Supreme Court denied
Plaintiff’s second motion for postconviction relief on the ground that his appeal was
without merit. The Delaware Supreme Court affirmed the State’s motion and
affirmed the judgment by the Superior Court. On March 13, 2014, the Delaware
Supreme Court affirmed that Plaintiff’s third motion for postconviction relief was
dismissed because it was procedurally barred as untimely, previously adjudicated, and




       1
           Marvel v. State, 935 A.2d 256 (Del. 2007).
       2
        Denied. Marvel v. Phelps, 2012 WL 404629 (D.Del. Feb. 7, 2012) Defendant also filed a
motion for reconsideration from the denial of the petition for writ of habeas corpus, which was
subsequently denied. Marvel v. Phelps, 2013 WL 653956 (D.Del. Feb. 20, 2013).

                                                 2
Larry D. Marvel v. State of Delaware
C.A. No. K14C-11-006 WLW
December 8, 2014


repetitive.3 Lastly, The Delaware Supreme Court affirmed the Superior Court’s
denial of Plaintiff’s fourth motion for postconviction relief on June 26, 2014, on the
basis that it was procedurally barred.4 Further, the Supreme Court of the United
States denied Plaintiff’s petition for a writ of certiorari on September 5, 2013.
      Plaintiff filed this civil complaint arguing a novel theory of breach of contract
by the State of Delaware. Plaintiff argues that he was denied due process with respect
to the denial of his postconviction relief motions, and now files suit against the State,
claiming the same facts as the basis for relief as he did in arguments previously
adjudicated. In the complaint, it appears that the Plaintiff is attempting to relitigate
the claims enumerated in his various motions for postconviction relief already heard
by the Delaware Supreme Court.
      Plaintiff believes he is entitled to monetary damages, reasoning that the State
of Delaware is inherently liable for breach of contract because his Constitional rights
have been violated, and believes any immunity afforded to the State pursuant to 10
Del.C. § 4001 is not applicable or has been waived. Further, Plaintiff seeks a total
of 1 million dollars in compensatory damages and 10 million dollars in punitive
damages.
                                STANDARD OF REVIEW
      In determining whether a litigant may proceed in forma pauperis, a sworn



      3
          Marvel v. State, 99 A.3d 227 (Del. 2014).
      4
          Id.

                                                3
Larry D. Marvel v. State of Delaware
C.A. No. K14C-11-006 WLW
December 8, 2014


affidavit addressing his ability to pay court costs or fees is required, and if the litigant
is an inmate, a certification of the plaintiff’s inmate account from the past six (6)
months immediately preceding the filing of the complaint is also required.5 If a
Plaintiff provides this information, then the Court may determine whether it should
grant the in forma pauperis motion.6 Should the Court decide to grant the motion, its
next step is to determine whether the complaint is factually frivolous, legally
frivolous, or malicious.7 The purpose of this review “is to determine whether service
of process will issue or the complaint will be dismissed as factually frivolous,
malicious or legally frivolous. All well-pled matters are accepted as true to determine
whether ... [petitioner] can recover under any conceivable set of circumstances
susceptible of proof under the complaint.”8
       If a complaint fails to state a claim upon which relief may be granted, then it
is deemed legally frivolous.9 A complaint will be dismissed “if the Court finds the
action is factually frivolous, malicious or, upon a court's finding that the action is
legally frivolous and that even a pro se litigant, acting with due diligence, should


       5
           10 Del. C. § 8804(a).
       6
           10 Del. C. § 8802(b).
       7
           10 Del. C. § 8803(b).
       8
         Smith v. C.M.S. Medical System, Del.Super., C.A. No. 98-02-248, Herlihy, J., at *1 (March
9, 1998).
       9
        Cannon v. McCreanor, 2003 WL 943247 at *2 (Del. Super. Mar. 6, 2003) (citing Gibbs
v. Hewes, Del.Super., C.A. No. 98C-03-294, Del Pesco, J. (April 16, 1998).

                                                4
Larry D. Marvel v. State of Delaware
C.A. No. K14C-11-006 WLW
December 8, 2014


have found well settled law disposing of the issue(s) raised.”10 If the complaint is not
frivolous, then service of process may be issued in order for the case to move
forward.11
                   Regarding Motion to Proceed In Forma Pauperis
      The Plaintiff provided the necessary documentation in his motion to proceed
in forma pauperis. A sworn affidavit as 10 Del.C. § 8802 requires was included with
the filing of the complaint, as well as bank account information for the Plaintiff.
Plaintiff sufficiently established that he is indigent.
                                       DISCUSSION
      When the Court dismisses an indigent plaintiff’s complaint as legally frivolous,
it is “limited to screening out only those claims that are based on an indisputably
meritless legal theory.”12 Setting aside for the moment that the Plaintiff must
overcome the burden of showing the State is not qualified to receive sovereign
immunity, all of the claims enumerated by Plaintiff pertain to previously litigated
matters. Plaintiff’s claims revolve around the belief that he was entitled to counsel
during the postconviction relief proceedings, and that the jury was unfairly instructed
during his trial (this was the subject of Plaintiff’s third postconviction motion).
Plaintiff’s claims are meritless as they have already been adjudicated by the Delaware


      10
           Supra note 7.
      11
           10 Del. C. § 8803(c).
      12
           Deputy v. Dr. Conlan, 947 A.2d 1121 (Del. 2007).

                                               5
Larry D. Marvel v. State of Delaware
C.A. No. K14C-11-006 WLW
December 8, 2014


Supreme Court.
      Even if Plaintiff’s claims were not legally frivolous, they are still asserted
against the State of Delaware, and the Plaintiff needs to prove that the State has
waived any immunity. The doctrine of sovereign immunity, one long-recognized at
common law, provides that the State and its instrumentalities cannot be sued without
the State's consent.13 The doctrine extends to employees of the State acting in their
official capacities.14 The only way in which this immunity may be waived is by an
express act of the Delaware General Assembly.15 The Plaintiff fails to cite any act of
the General Assembly to suggest that immunity has been waived.
                                        CONCLUSION
      The Defendant's Motion to Proceed In Forma Pauperis is granted and the civil
compliant is dismissed.
      IT IS SO ORDERED this 8th day of December, 2014.


                                              /s/ William L. Witham, Jr.
                                              Resident Judge


WLW/dmh


      13
           DEL. CONST . ART . I, § 9. See also Doe v. Cates, 499 A.2d 1175 (Del. 1985).
      14
           Simon v. Heald, 359 A.2d 666 (Del. Super. 1976).
      15
           Doe v. Cates, 499 A.2d 1175 at*1176 (Del. 1985).


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