Opinion
C.A. No. 07M-09-012 WLW.
Submitted: December 31, 2008.
Decided: March 4, 2009.
Upon Defendants' Motion to Dismiss. Granted.
Rollin Lee Laub, pro se.
Catherine Damavandi, Esquire; Department of Justice, Wilmington, Delaware; attorneys for the Defendants.
ORDER
BACKGROUND
On September 24, 2007, Rollin Lee Laub ("Petitioner"), currently incarcerated at the James T. Vaughn Correctional Center ("JTVCC"), filed a pro se Complaint for Mandamus, Abuse of Process, and Retaliation against certain Department of Corrections personnel ("Defendants" or "DOC"). Petitioner also filed a motion to proceed in forma pauperis. On October 15, 2007, the Court filed a letter order informing Petitioner that his in forma pauperis motion lacked necessary attachments. The Court also informed Petitioner in this letter order that the nature of his claims, "mandamus — replevin," was problematic in that no relief was sought for replevin, nor was there a factual assertion of that claim. The Court also noted:
The named Defendants are Carl Danberg, Rick Kearney, Anthony Redina, Thomas Carroll, Guy Fowler, the Prison Classification Board, Larry Savage, and Martin Creasy.
While the Court notes that you are acting pro se, you are required to follow the Superior Court rules in proceeding with your case. Initially, you are reminded that all pleadings must be served on opposing parties or counsel. You are expected to comply with all customs and rules of this Court. These include, but are not limited to, the Rules of Civil Procedure and the Superior Court Civil Case Management Plan for Kent County.
Petitioner responded to the Court's letter order on October 24, 2007 with the requested attachments, and on November 13, 2007, the Court granted Petitioner's request to proceed in forma pauperis.
Defendants filed a Motion to Dismiss on October 8, 2008. On October 17, 2008, Petitioner filed a First Request for Documents, requesting documents pertaining to Petitioner's placement in solitary confinement, disciplinary actions taken against Petitioner, and the DOC regulations and court orders establishing the duties of DOC personnel. On November 3, 2008, Petitioner wrote a letter to the Court explaining that he needed the requested documents to answer the Motion to Dismiss. Defendants responded to Petitioner's request for documents, claiming that the request directs Defendants to conduct legal research for Petitioner, which is improper, and that 11 Del. C. § 4322 precludes Petitioner from receiving copies of DOC policy and procedure manuals.
On November 26, 2008, Petitioner responded to Defendants' Motion to Dismiss. On December 10, 2008, Petitioner wrote another letter to the Court, explaining that the documents he requested are not privileged and should be provided to him. Petitioner also asked the Court to sanction Defendants' counsel under Superior Court Rule 11 for filing a "wasteful and frivolous document," and described Defendants' counsel as "new to this case or [ ] inexperienced or lacks an elementary knowledge of this courts' rules and Delaware statutes." Defendants responded to Petitioner's letter on January 5, 2009.
Defendants' Arguments
Defendants argue that Petitioner's petition for mandamus should be dismissed because the Attorney General's office was not served with Petitioner's Complaint in compliance with 10 Del. C. § 3103(c). In addition, Defendants allege that only Defendant Commissioner Carl Danberg was served with the Complaint, and that none of the other Defendants were served. Because the other Defendants were not served with the Complaint or summons pursuant to Super. Ct. Civ. R. 4(f)(1), Defendants argues that the Court does not have personal jurisdiction over these Defendants and they must be dismissed from the action.
Defendants also maintain that Petitioner has failed to state a claim for a writ of mandamus, and that Petitioner's Complaint should be treated as one brought under 42 U.S.C. § 1983. Furthermore, Defendants claim the Petitioner's Complaint should be dismissed because Petitioner did not first exhaust the administrative remedies available through the formal grievance system at JTVCC.
Petitioner's Arguments
Petitioner maintains that he complied with 10 Del. C. § 3101(c) when he mailed a copy of the Complaint directly to the Attorney General on September 21, 2007. Petitioner also alleges that on October 19, 2007, in response to the Court's order to remedy several deficiencies in his Complaint, Petitioner demonstrated that the documents required for service of the summons and Complaint were mailed to the Prothonotary, but Petitioner cannot prove that the named Defendants were served. Nevertheless, Petitioner argues that since the named Defendants have received a copy of the Complaint through the Attorney General, insufficient service is a frivolous argument.
Petitioner argues that without the policy and procedures of the DOC, he cannot prove that Defendants violated clear and mandatory duties concerning the processing of prison disciplinary complaints, handling prisoners' property, and protecting prisoners' rights, which caused and continues to cause Petitioner "physical, mental, and property harms." Petitioner also alleges that Defendants' Motion to Dismiss is limited only to Petitioner's request for a writ of mandamus, and does not address Petitioner's abuse of process and retaliation claims.
In addition, Petitioner argues that he complied with the requirement to exhaust all administrative remedies, because disciplinary issues are specifically excluded from inmate grievance procedures. Furthermore, Petitioner maintains that on November 13, 2007, the Court ruled that Petitioner had satisfied all requirements of 10 Del. C. § 8804 when Petitioner was granted his request to proceed in forma pauperis. Therefore, Petitioner argues, this is also a frivolous argument.
Petitioner's final argument is that the State is incorrect in its assessment that his Complaint should be treated as one brought under 42 U.S.C. § 1983.
STANDARD OF REVIEW
When deciding a motion to dismiss, all factual allegations in the complaint are accepted as true. A motion to dismiss is decided on "whether a Petitioner may recover under any conceivable set of circumstances susceptible to proof under the complaint." Therefore, dismissal will only be warranted when "under no reasonable interpretation of the facts could the complaint state a claim for which relief might be granted.
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
Id.
Hedenberg v. Raber, 2004 WL 2191164 (Del.Super. Aug 20, 2004).
DISCUSSION 1. Proper Service of the Complaint
The State has moved for dismissal on the grounds of insufficiency of process under Superior Court Civil Rule 12(b)(5) and failure to exhaust administrative remedies under 10 Del. C. § 8804. The Court must first address whether Petitioner has complied with 10 Del. C. § 3103 and Superior Court Civil Rule 4 in serving the complaint upon Defendants, because if there has been no compliance, this Court lacks personal jurisdiction over the above-referenced Defendants.Defendants maintain that under 10 Del. C. § 3103, any summons initiating a lawsuit against the State or any State officer must be served upon the person of the Attorney General, the State Solicitor, or the Chief Deputy Attorney General, in addition to the Defendants. Under Superior Court Civil Rule 4(a) and (d), the process must be specified in the praecipe and issued by the Prothonotary to the Sheriff to effectuate service. Defendants allege that no such proper service was made, and under Superior Court Civil Rule 12(b)(5), Petitioner's complaint may be dismissed.
10 Del. C. § 3103 (2008).
Super. Ct. Civ. R. 4(a). "Service of process shall be made by the sheriff to whom the writ is directed, by a deputy or by some person specially appointed by the Court for that purpose . . ." Super. Ct. Civ. R. 4(d).
It is well-settled in Delaware that parties have the right to question irregularities in, or sufficiency of, service of process. "The Sheriff's return is prima facie proof of proper service." In this case, Petitioner mailed a copy of the complaint directly to the Attorney General instead of complying with the proper service requirements of Superior Court Civil Rule 4. Petitioner argues that insufficient service is a frivolous argument, since the named Defendants have received a copy of the complaint. Petitioner is incorrect in this regard.
Alston v. DiPasquale, 2002 WL 77116, at *1 (Del.Super. Jan 4, 2002), citing Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 323 (Del.Super. 1968).
Id., citing Cohen, 238 A.2d at 324.
Because Petitioner attempted to accomplish service himself without permission of the Court, the Court may dismiss Petitioner's complaint against all Defendants. Nevertheless, the Court will address the merits of Defendant's motion to dismiss rather than dismiss solely on the basis of insufficient process.
Id., citing Gosnell v. Whetsel, 198 A.2d 924, 926 (Del.Super. 1964).
2. Claim for Writ of Mandamus
A writ of mandamus is an extraordinary writ, and will only be issued where the petitioner can show that he has a clear right which requires the court to compel the performance of a duty by a public official, agency, or inferior court. The petitioner must also establish that no other adequate remedy is available. It is not a matter of right, however, and the court uses its discretion in deciding whether to issue a mandamus. If either of these two elements are not present, a mandamus will not be issued. Furthermore, "if a mandamus is requested solely because a prison policy is not adhered to, the court will defer to the discretion of the DOC."
Clough v. State, 686 A.2d 158, 159 (Del. 1996).
Washington v. Dep't of Corr., 2006 WL 1579773, at *2 (Del.Super. May 31, 2006).
Guy v. Greenhouse, 1993 WL 557938, at *1 (Del. Dec. 30, 1993).
Id.
Washington, 2006 WL 1579773, at *2, citing Ross v. Dep't of Corr., 722 A.2d 815, 820 (Del.Super. 1998).
A. The DOC's Classification Rules
Petitioner's claim for writ of mandamus is premised on his allegation that DOC personnel violated their own disciplinary and classification rules. Petitioner is unable to indicate which classification rules were allegedly violated by DOC personnel because he does not have access to DOC policies and procedures. Petitioner argues that the DOC's classification rules should be made available for him to review in order to properly state his claim. The Court disagrees.DOC policies and procedures are confidential, and are not subject to review by the public. Prisoners are precluded from reviewing DOC policies and procedures, regardless of the reason for requesting them. "[A]ny inmate intrusion into the operational or administrative concerns of DOC could constitute a threat to general security interests. The potential for disruption of the prison by inmates using this information is obvious." Petitioner, therefore, will not be provided a copy of the DOC classification rules for the purpose of identifying alleged violations by DOC personnel.
Jackson v. Danberg, 2008 WL 1850585, at *4 (Del.Super. April 25, 2008) aff'd, 2008 WL 4717426 (Del. Oct. 28, 2008).
11 Del. C. § 4322(c) (2008); see Ross v. Dep't of Corr., 722 A.2d 815, 820-21 (Del.Super. 1998).
Id. at 821.
Petitioner also lists in his complaint numerous disciplinary rules that DOC personnel allegedly violated, but does not specifically identify how each of these rules were violated by DOC personnel. Therefore, the Court will defer to the discretion of the DOC in administering and adhering to its prison policies, and will not issue a mandamus based solely on alleged noncompliance with those policies.
B. Other Adequate Remedies
In addition to showing that he has a clear right which requires the Court to compel the DOC's performance, Petitioner must establish that no other adequate remedy is available. The Court finds that although Petitioner exhausted his administrative remedies pertaining to the disciplinary hearing, Petitioner did not exhaust his administrative remedies regarding the retaliation and abuse of process claims. Petitioner has provided no evidence that he filed a grievance against the DOC personnel involved in these claims. Furthermore, the Court finds that 42 U.S.C. § 1983 provides the proper remedy at law, to the extent that Petitioner's abuse of process and retaliation claims allege violations of his First, Eighth, and Fourteenth Amendment rights.
Petitioner's appeal of the Disciplinary Board's decision exhausted his administrative remedies regarding the disciplinary hearing. Disciplinary, Classification, and Parole Board decisions are excluded from the Inmate Grievance Procedure. IGP 4.4.
42 U.S.C. § 1983 (2008); Parker v. Kearney, 2000 WL 1611119, at *5 (Del.Super. Aug. 23, 2000).
Petitioner has failed to show that he has a clear right which requires the Court to compel the DOC to perform a certain duty, and has failed to establish that no other adequate remedies are available. As a result, Petitioner has not stated a claim which entitles him to a writ of mandamus, and Defendant's motion to dismiss Petitioner's complaint is granted.
3 . Sanctions
In a letter to the Court, Petitioner asked the Court to sanction Defendants' counsel under Superior Court Civil Rule 11 for filing the motion to dismiss, which he described as a "wasteful and frivolous document." Petitioner went on to describe Defendants' counsel as "new to this case or [ ] inexperienced or lacks an elementary knowledge of this courts' rules and Delaware statutes."
Petitioner has failed to comply with Rule 11(c)(1)(A) by filing a separate motion for sanctions, and the Court will not act sua sponte pursuant to Rule 11(c)(1)(B).
The Court has reviewed Defendants' motion to dismiss and finds that it was neither wasteful nor frivolous, and that Defendants' counsel complied with Rule 11. However, upon reviewing Petitioner's submissions in this matter, the Court finds that Petitioner's December 10, 2008 letter attacking Defendants' counsel's knowledge and experience lacks the civility expected in Delaware courts. In a letter dated October 15, 2007, the Court notified Petitioner that, although he is acting as a pro se litigant, he is expected to comply with all of the customs and rules of the Court.
The Court does not condone, accept, or permit "the use of profanity, acrimony, derisive gibes, or sarcasm with respect to any communication related to any matter, proceeding, writing, meeting, etc." Petitioner's use of insulting language to describe Defendants' counsel was uncalled for, and will not be tolerated. The Court, therefore, admonishes Petitioner to conduct himself in matters before the Court with civility and restraint.
Crowhorn v. Nationwide Mut. Ins. Co., 2002 WL 1274052, at *5 (Del.Super. May 6, 2002).
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss is granted . IT IS SO ORDERED.