Kostyshyn v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
PETER KOSTYSHYN, §
§ No. 160, 2015
Petitioner Below, §
Appellant, §
§ Court Below—Superior Court
V. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § CA. No. N14C-10-174
§
Defendant Below, §
Appellee. §
Submitted: May 13, 2015
Decided: June 9, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R
This 9th day of June 2015, upon consideration of the rule to show
cause, the appellant’s response, and the record below, it appears to the Court
that:
(1) The appellant, Peter Kostyshyn, filed a notice of appeal on
March 31, 2015, purporting to appeal from an order of the Superior Court
dated January 13, 2015. Because the Superior Court docket did not reflect
an order dated January 13, 2015, the Senior Court Clerk wrote to Kostyshyn
and directed him to file an amended notice of appeal identifying the order he
sought to appeal. The Senior Court Clerk also directed Kostyshyn either to
pay the Court’s required filing fee or else file a motion to proceed in forma
pauperis. The Court provided Kostyshyn with an appropriate, blank in
forma pauperis motion with instructions.
(2) On April 13, 2015, Kostyshyn filed an amended notice of
appeal and a motion to proceed in forma pauperis. The motion did not
comply with the Court’s rules, among other reasons, because it was illegible,
it omitted pertinent information including the estimated value of
Kostyshyn’s real estate and stock holdings, it failed to identify any prior
litigation in which Kostyshyn was found by afielaware court to have filed
frivolous or malicious litigation, and it failed to include a notarized
statement of his inmate account.
(3) On April 14, 2015, the Senior Court Clerk advised Kostyshyn
that his motion did not conform to the Court’s rules. He was given an
additional two weeks to file an appropriate motion. He failed to comply.
On April 30, 2015, the Chief Deputy Clerk issued a rule to show cause Why
the appeal should not be dismissed for Kostyshyn’s failure to comply with
the Court’s prior directive.
(4) Kostyshyn filed a response to the notice to show cause on May
13, 2015. The response is difficult to understand. He appears to assert that
he does not have access to all of the information that the Court requires. He
asks the Court to obtain the information on his behalf from the attorney who
is representing him in an unrelated pending criminal matter.
(5) We find Kostyshyn’s response unavailing. It is the
responsibility of the litigant, not this Court, to supply the information
necessary to make a determination of a litigant’s status as a pauper. We note
that Kostyshyn’s current appeal is fiom a default judgment entered against
him after he failed to file an answer to the State’s complaint, which alleged
that he had committed more than 1600 violations of the Delaware False
Claims and Reporting Act1 by falsely claiming to be a pauper. Attached to
the State’s complaint was Kostyshyn’s 2013 bankruptcy petition reflecting
that Kostyshyn had close to $2 million in assets.2
(6) Under the circumstances, we dismiss this appeal for
Kostyshyn’s failure to diligently prosecute the appeal by refusing to comply
with the Court’s April 14, 2015 directive. Moreover, as we previously held
in a prior appeal, Kostyshyn “has far exceeded his ‘three strikes’” under the
in forma pauperis statute.3 Kostyshyn has filed countless frivolous
complaints, petitions, appeals, and writs in both the state and federal courts.
1 6 Del. C. ch. 12 (2013).
2 The Bankruptcy Court dismissed his case on August 19, 2013, after it ordered
Kostyshyn to pay the required filing fee in full and Kostyshyn failed to do so.
3 10 Del. C. § 8804(1) (2013).
He has lost the privilege to file in forma pauperis, except as allowed under
Section 8804(1). Thus, in future, Kostyshyn may not file a civil appeal or
writ in this Court without the accompanying filing fee, unless the Court
deems the matter exempt under Section 8804(t), or else the matter will be
dismissed.
NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is
DISMISSED.
BY THE COURT:
Jfiggm .
Justice