Smith v. James T. Vaughn Correctional Center Education Dept.

• Court: Supreme Court of Delaware
• Decided: June 15, 2017
• Docket: 127, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK W. SMITH, JR., § § Petitioner Below- § No. 127, 2017 Appellant, § § v. § Court Below—Superior Court § of the State of Delaware JAMES T. VAUGHN CORRECTIONAL § CENTER EDUCATION § C.A. No. N17C-02-209 DEPARTMENT, § § Respondent Below- § Appellee. §

Submitted: May 25, 2017 Decided: June 15, 2017

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

This 15th day of June 2017, it appears to the Court that:

(1) The appellant, Frederick T. Smith, filed this appeal from a

Superior Court order dismissing his complaint for failure to state a claim and

denying his motion to proceed in forma pauperis. On May 2, 2017, the

Superior Court informed the Clerk of this Court that Smith had failed to pay

the required record preparation fee. The Senior Court Clerk directed Smith

to pay the fee by May 17, 2017 or else a notice to show cause would be

issued. (2) Smith failed to pay the fee. On May 18, 2017, the Chief

Deputy Clerk issued a notice to Smith to show cause why his appeal should

not be dismissed for his failure to diligently prosecute the appeal by failing

to pay the Superior Court’s record preparation fee.

(3) Smith responded to the rule to show cause on May 25, 2017.

He argues that the Superior Court has no jurisdiction to demand payment

from him while his case is pending appeal.

(4) Smith is incorrect. Under Supreme Court Rule 9(aa), “[e]very

appellant is required to pay the record preparation and transmittal fee within

the time limit imposed by the trial court unless the trial court waives its

fee….”1 If the appellant fails to pay the record preparation fee, this Court

may dismiss the appeal.2 The Superior Court did not waive the fee, and

Smith failed to pay it. The Court cannot proceed without the record on

appeal.

NOW, THEREFORE, IT IS ORDERED that the within appeal is

DISMISSED for Smith’s failure to prosecute.

BY THE COURT:

/s/ Karen L. Valihura Justice

1 Del. Supr. Ct. R. 9(aa). 2 Id.