IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY DAVID J. BUCHANAN, : C.A. No. S08C THG Plaintiff, : v. : WILLIAM WALLACE, : DELAWARE STATE POLICE, DAVID J. RICHARDS, : BARBARA H. RICHARDS, : Defendants. : ORDERS DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND STAYING PROCEEDINGS DATE SUBMITTED: August 13, 2008 DATE DECIDED: September 18, 2008 David J. Buchanan, SBI#, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE Graves, J.

2 David J. Buchanan ( Buchanan ) is the plaintiff in this pending case which originated in the Court of Chancery. The Court of Chancery dismissed the case without prejudice for lack of jurisdiction, ruling that Buchanan had stated legal, not equitable, claims for relief. Buchanan has transferred this action pursuant to10 Del. C Buchanan has filed additional pleadings with this Court which appear to amend the complaint filed in the Court of Chancery. In connection with the original complaint in Chancery, Buchanan filed a motion to proceed in forma pauperis. The Court of Chancery granted this motion. Now that the matter has been transferred here, Buchanan has filed another motion to proceed in forma pauperis, dated July 30, In two orders, both dated July 29, 2008, issued in two separate appeals, the Delaware Supreme Court denied Buchanan s motion to proceed in forma pauperis. The Supreme Court precedent requires this Court to deny Buchanan s motion to proceed in forma pauperis. Before this matter proceeds, Buchanan must pay the following fees and costs: a filing fee of $ to the Superior Court; a $60.00 fee to the Sheriff of Sussex County for service on 1 In 10 Del. C. 1902, it is provided as follows: No civil action, suit or other proceeding brought in any court of this State shall be dismissed solely on the ground that such court is without jurisdiction of the subject matter, either in the original proceeding or on appeal. Such proceeding may be transferred to an appropriate court for hearing and determination, provided that the party otherwise adversely affected, within 60 days after the order denying the jurisdiction of the first court has become final, files in that court a written election of transfer, discharges all costs accrued in the first court, and makes the usual deposit for costs in the second court. All or part of the papers filed, or copies thereof, and a transcript of the entries, in the court where the proceeding was originally instituted shall be delivered in accordance with the rules or special orders of such court, by the Prothonotary, clerk, or register of that court to the Prothonotary, clerk or register of the court to which the proceeding is transferred. The latter court shall thereupon entertain such applications in the proceeding as conform to law and to the rules and practice of such court, and may by rule or special order provide for amendments in pleadings and for all other matters concerning the course of procedure for hearing and determining the cause as justice may require. For the purpose of laches or of any statute of limitations, the time of bringing the proceeding shall be deemed to be the time when it was brought in the first court. This section shall be liberally construed to permit and facilitate transfers of proceedings between the courts of this State in the interests of justice. 2

3 William Wallace and the Delaware State Police; a $35.00 fee to the Sheriff of Kent County for service on the Richards by way of serving the Secretary of State (this must be by money order because the Kent County Sheriff does not take personal checks); and a $4.00 money order payable to the Secretary of State for the long-arm service on the Richards. 2 While reviewing the motion to proceed in forma pauperis, the Court reviewed the complaint pursuant to 10 Del. C. 8803(b). 3 This review has led this Court to conclude that a stay must be entered until pending criminal proceedings against Buchanan finally are resolved. Buchanan has a history of filing frivolous and malicious litigation against parties who have been involved in his divorce proceedings and the proceedings ancillary thereto. Buchanan v. Gay, Del. Super., C.A. No. 06C , Johnson, J. (Sept. 21, 2006), rearg. den. (Oct. 13, 2006), aff d, Del. Supr., No. 562, 2006, Berger, J. (May 17, 2007); Buchanan v. Gay, Del. Super., C.A. No. 08M-02-12, Stokes, J. (March 10, 2008). In the latter case, he also filed frivolous claims against his bankruptcy attorney and his ex-wife s attorney. Additionally, he sought to obtain relief from the Family Court decisions by filing legally meritless actions in the Supreme Court, In re Buchanan, Del. Supr., No. 530, 2007, Ridgely, J. (Nov. 14, 2007); Chancery Court, Buchanan 2 Buchanan repeatedly has asserted in this civil action and in a criminal action pending in this Court that he has obtained service over the defendants in this matter. He never has obtained service in accordance with the law. Serving an attorney is not personal service over the defendants. Buchanan must obtain legal service over each defendant in this case. 3 In 10 Del. C. 8803(b), it is provided as follows: b) Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall 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 have found well settled law disposing of the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review. 3

4 v. Buchanan, Del. Ch., No. 2190, Chandler, C. (May 31, 2006); and Superior Court, Buchanan v. Buchanan, Del. Super., C.A. No. 06C , Bradley, J. (July 7, 2006).The Supreme Court recently noted in an order denying Buchanan s request for a writ of mandamus that Buchanan has filed at least eight separate actions in the Supreme Court over the past several months, all of which stem from his dissatisfaction with the Family Court s disposition of his and his former wife s marital property. In re Buchanan, Del. Supr., No. 368, 2008, Ridgely, J. (Sept. 2, 2008) at 2. 4 Buchanan also has a history of misrepresenting the facts and making claims based upon those misrepresentations. Buchanan v. Gay, Del. Super., C.A. No. 06C , Johnson, J. (Sept. 21, 2006) at 4; Buchanan v. Gay, Del Super., C.A. No. 08M-02-12, Stokes, J. (March 10, 2008) at 3. The complaint filed in this matter is no different. It contains allegations which are not true and bases claims on those untrue allegations. Thus, in setting forth facts below, I set forth facts which appear in previous decisions of various courts which have dealt with Buchanan. I also obtain undisputed facts from the documents which have been filed in this matter as well as in the pending criminal case of State v. Buchanan, Def. ID# The facts indisputably show as follows. First, and most important, Buchanan has been evicted, by a final order of the Family Court, from the property at Hudson Road, Laurel, Delaware ( the property ). Bennett v. Bennett, Del. Supr., No. 73, 2007, Ridgely, J. (Aug. 6, 2007); Bell v. Bell, Del. Supr., No. 60, 2008 (May 4 The Supreme Court ruled at page 3: Because we conclude that Buchanan s repetitive and excessive filings constitute an abuse of the processes of this Court, we hereby direct the Clerk that no future filings by Buchanan in connection with Family Court File... shall be docketed unless first reviewed and approved for filing by a Justice of this Court. 4

5 23, 2008). 5 As of January 3, 2008, he was ordered to be off of the property. He was excluded from the home in order to allow his ex-wife the opportunity to safely prepare the home for sale. As of January 3, 2008, a Court in the District of Columbia wanted Buchanan for criminal charges where Barbara Richards, a defendant in this case, was an alleged victim. Corporal William Wallace of the Delaware State Police ( Corporal Wallace ), also a defendant in this action, arrested Buchanan on the fugitive warrant on January 3, Buchanan posted bond on those charges. On January 10, 2008, Buchanan went onto the property, accompanied by the Delaware State Police, to retrieve his personal property. On January 26, 2008, Buchanan was arrested at the property. State v. Buchanan, Def. ID# The charges lodged at this time were burglary in the second degree; criminal 5 Bankruptcy proceedings had delayed Family Court orders regarding the sale of the property. When these proceedings were dismissed, the Family Court, in an order dated February 5, 2007, entered an order evicting Buchanan from two parcels of marital real estate. Bennett v. Bennett, Del. Supr., No. 73, 2007, Ridgely, J. (Aug. 6, 2007) at 1-2. The Supreme Court affirmed the Family Court order. Id. at 3. The Family Court entered another order dated October 24, 2007, barring Buchanan from the property. State v. Buchanan, Def. ID# , Docket Entry 3. Family Court orders were stayed pending further bankruptcy proceedings. Id. Upon receiving notice from the Bankruptcy Court that Buchanan s bankruptcy proceedings had been dismissed, the Family Court ordered, on January 3, 2008, that stays of its October 24, 2007, orders were lifted and those orders could be carried out with full force and effect. Id. Those October 24, 2007, orders compelled the execution of a contract of sale by directing a clerk of the Family Court to execute an enclosed contract of sale and directed all appropriate law enforcement agencies to physically remove David J. Buchanan from the former marital property in order that the Court s Order of Sale of the Property could be carried out. Id. This January 3, 2008, order became final when the Supreme Court dismissed Buchanan s appeal. Bell v. Bell, Del. Supr., No. 60, 2008, Holland, J. (May 23, 2008). 6 The affidavit of probable cause alleges in pertinent part as follows: On at approx hours I responded to [34806] Hudson Rd., Laurel to assist undercover units with an ongoing domestic situation. Prior to arrival Cpl. Wallace conducted a briefing with all officers involved and stated that D (Buchanan, David J. WM) was evicted from the above residence in compliance with the Sussex Family court order, after being arrested at this residence as an out of state fugitive on D-Buchanan was provided assistance with retrieving his property from the residence and was advised that he was no longer allowed on the property at Hudson Rd., Laurel and was advised that if he returned to said property he would be in violation of the Family Court Order and would face criminal charges being filed against him. Since his arrest Cpl. Wallace has been in contact with D-Buchanan on numerous occasions (as recently as ) advising him that he was not allowed at the residence and that if he were found there he would be arrested on criminal charges. On todays [sic] date units responded 5

6 mischief under $1000; resisting arrest; and criminal contempt by disobedience or resistance to a mandate of a court. 7 Immediately thereafter, on January 29, 2008, Buchanan filed with the Family Court a Protection from Abuse petition, labeled Petition for Protection from Abuse and Emergency Petition for Writ of De Ejectione Firmae Providing Assignment of Property Pursuant to 10 Del. C. 921(4). He sought relief from Corporal Wallace. By order dated February 1, 2008, the Family Court dismissed this petition, ruling it had no jurisdiction over Corporal Wallace. On February 6, 2008, Buchanan sought to subpoena Corporal Wallace in a Family Court proceeding. Thereby, Buchanan sought information pertaining to his arrests on January 3, 2008, and January 26, On February 15, 2008, Buchanan commenced this pending civil litigation by filing in the to the residence in order to assist V... with making sure the residence was vacant and that D- Buchanan was not on the property. Upon arrival of the first unit (Tpr. Gallagher) found the white Ford F-250 in the driveway and smoke coming from the chimney, indicating that someone was inside the residence. The white Ford pickup is registered to D-Buchanan. D-Buchanan has made threats in the past and on Troop 5 units (Cpl. Allen) received third party information from a neighbor that D-Buchanan stated he would blow it all up if someone attempted to remove him from the property. Upon arrival Cpl. Wallace made contact via cell phone with D-Buchanan, advising that he was in the area and observed his truck in the driveway and requested that he come to the end of theb [sic] driveway and talk to him. D-Buchanan denied being on the property and stated that he was in Lincoln in a separate vehicle also owned by him... Several minutes later Tpr. Gallagher observed D-Buchanan exit the residence and walk toward the wooded area. Troopers responded into the driveway and commanded D-Buchanan to stop and return to the residence, at which point he turned and looked back, seeing the Troopers and began to run in the same direction, away from the Troopers entering the wooded area. Troopers and K9-50 with Partner (Aron) gave chase and were able to apprehend D-Buchanan without incident in an adjacent field. A second interview conducted with the owners of the property revealed a fully loaded 20 gauge shot gun hidden behind a full sheet of drywall next to the basement entry door. A jacket was also found hanging on the sheet of drywall with all of the pockets loaded with ammunition for the shot gun. Tpr. Gallagher also that he was advised by V... that D-Buchanan broke the door knob off the basement door and replaced it with a new door knob, thus giving him a key to get into the residence. 7 The Grand Jury indicted Buchanan on March 24, 2008, and the indictment amended the burglary in the second degree charge to a burglary in the third degree charge, added a charge of possession of a firearm during the commission of a felony, and included the charges of criminal mischief, resisting arrest, and criminal contempt. 6

7 Court of Chancery a Petition for Writ of De Ejectione Firmae and Verified Complaint for Injunctive Relief. The parties named were William A. Wallace, the Delaware State Police and David J. Richards. The complaint alleges that David J. Richards ( Richards ) is the husband of Buchanan s ex-wife. It further alleges that on January 4, 2008, Richards, with the assistance of Corporal Wallace gained unauthorized access to the office of Buchanan Farms, Inc. located on the property owned and deeded to David J. Buchanan, at Hudson Road, Laurel, Delaware... ; Richards removed items of Buchanan s personal property from the premises; and the defendants entered Buchanan s locked personal vehicle and removed items of Buchanan s personal property. The complaint further alleges that on January 26, 2008, the date of plaintiff s arrest in the pending criminal matter, Richards, with the assistance of the Delaware State Police, removed firearms, property, and valuable livestock from the property. He asserts Richards conspired with Corporal Wallace to unlawfully ouster Buchanan from the property. Buchanan seeks injunctive relief preventing further trespass on the property, declaratory relief, and the return of his property. Meanwhile, litigation involving Buchanan continued in Family Court, with a protection from abuse order being entered on March 13, That order prevented Buchanan from possessing any firearms. On March 13, 2008, Buchanan again was arrested, this time for charges of possession of a firearm or ammunition by a person prohibited (three counts); carrying a concealed deadly weapon (2 counts); criminal contempt of a domestic violence protective order; and driving while license suspended or revoked. State v. Buchanan, Def. ID# , now 7

8 consolidated into State v. Buchanan, Def. ID# In a letter dated April 1, 2008, filed with the Court of Chancery, Buchanan asked the Chancery Court to issue an injunction regarding malicious prosecution by the Department of Justice. Chancery Court determined that Buchanan had not pled a case of ejectment, and to the extent he had stated a claim, it was for replevin or for the torts of trespass or conversion. It further ruled that the equitable relief Buchanan sought was not available to him. Thus, the Chancery Court dismissed the case, without prejudice, for lack of jurisdiction. In a document filed with Superior Court which appears to amend the original complaint filed with Chancery Court, Buchanan includes Barbara Richards as a defendant. In this pleading, he asserts that his arrests were beyond the authority and jurisdiction of the State Police and Mr. Richards. He alleges that Mr. Richards coordinated his arrest on January 3, He also asserts that all of the defendants, including Barbara Richards, took his personal property. He alleges the arrests and seizures of his property resulted in his wrongful ejectment from the property. He asserts his constitutional rights have been violated. He maintains he suffered malicious prosecution, tort, false arrest, deprivation of rights, and emotional harm. Buchanan has filed a multitude of motions and pleadings with this Court in the criminal case which interweave the pending civil case with the criminal case. State v. Buchanan, Def. ID# , Docket Entries 20, 21, 26, 27, 29, 33, 36, 41, 43. Buchanan attempts to obtain, in the criminal filings, discovery related to his civil case. Id., Docket Entry 20. Buchanan asserts 8 The March 24, 2008 Grand Jury indictment, which incorporated both sets of charges, charged Buchanan with possession of a deadly weapon by a person prohibited (two counts regarding firearms and one count regarding ammunition) and carrying a concealed deadly weapon (two counts). 8

9 that his bond was increased in retaliation for him filing this civil suit. Id., Docket Entry 33. He also maintains that the State, in filing these criminal charges, is attempting to evict him from his property. Id., Undocketed document which was filed with the Supreme Court and captioned Answer to `Answer and Motion to Dismiss. He argues the civil and criminal matters should be combined. Id., Docket Entry 33. Despite the fact he was arrested on the first set of charges before he filed his civil suit, he argues the State is estopped from pursuing the criminal matters because it is pursuing the criminal matters to preclude him from obtaining recovery in the civil case. Id., Docket Entries 20, 26, 29, 43. Finally, he argues that trial counsel is ineffective because he cannot represent him in the civil suit. Id., Docket Entries 27, 33, 36, 41. The Court has decided to stay this civil proceeding pending a final outcome of the criminal proceedings against Buchanan. Even though he has not obtained service over any of the defendants, Buchanan already is seeking discovery in the civil matter and in the criminal matter. He may not obtain discovery in a criminal matter through an interrelated civil proceeding. State v. Spicer, Del. Super., C.A. Nos. 98M and 98M , Stokes, J. (March 31, 1999), rearg. den. (May 11, 1999). Also, it is clear from the filings to date that Buchanan is harassing the arresting officer, his ex-wife and his ex-wife s husband. He is attempting to control the outcome of the criminal proceedings through this civil proceeding. In light of this behavior, I rule that this civil action shall be stayed until there is a final resolution of the matters in State v. Buchanan, Def. ID# Upon final resolution of the criminal matter, the Court will 9 A judgment would be final if Buchanan is acquitted. If Buchanan is found guilty or pleads guilty, then the judgment is final 30 days after the Court imposes sentence if Buchanan does not file a direct appeal; or, if he files an appeal, it is final when the Supreme Court issues a mandate or order finally determining the case on direct review, or if Buchanan files a petition for certiorari seeking review of the Supreme Court s mandate or order, when the United States Supreme Court issues a mandate or order finally disposing of the case on direct review. 9

10 reconsider the civil complaint and review it once again to determine which, if any, claims may proceed. Because the Court has ruled that this civil matter is stayed, Buchanan may not file anything in this action. Any pleadings or documents filed in this matter shall not be docketed but shall be rejected and returned to Buchanan. In conclusion, I have made the following rulings: 1) The motion to proceed in forma pauperis is denied. Before this matter proceeds, Buchanan must pay the following fees and costs: a filing fee of $ to the Superior Court; a $60.00 fee to the Sheriff of Sussex County for service on William Wallace and the Delaware State Police; a $35.00 fee to the Sheriff of Kent County for service on the Richards by way of serving the Secretary of State (this must be by money order because the Kent County Sheriff does not take personal checks); and a $4.00 money order payable to the Secretary of State for the longarm service on the Richards. 2) This matter is stayed pending the final outcome of the criminal proceedings in State v. Buchanan, Def. ID# ) Should Buchanan attempt to file any pleading or document in this proceeding before final resolution of the criminal matter, the Prothonotary s Office is to return the pleading or document to Buchanan without docketing such. IT IS SO ORDERED. 10