Opinion
C.A. No. 03M-09-013 (THG).
November 7, 2003.
Orders denying motion to proceed in forma pauperis and dismissing complaint.
1) Plaintiff Steve O. Hickman ("plaintiff") has filed a complaint seeking damages for alleged violations of his rights and a motion to proceed in forma pauperis.
2) The motion to proceed in forma pauperis is denied because plaintiff did not swear, before a notary, to the veracity of the contents of the affidavit filed in support of the application as 10 Del. C. § 8802(b) requires. The Court will not provide plaintiff the opportunity to correct this deficiency because, as examined below, the complaint is legally frivolous and is dismissed.
3) The Court has reviewed the complaint in connection with the pending motion to proceed in forma pauperis. 10 Del. C. § 8803(b). Although the complaint is not particularly clear, plaintiff appears to allege as follows.
Plaintiff was incarcerated at Sussex Correctional Institution during the pertinent time frame of May through July, 2003. While there, he was written up for a disciplinary violation. The grievance procedure was followed. The "Record of Disciplinary Hearing" form shows as follows. A hearing took place on June 11, 2003, and the hearing officer checked the "guilty" block; there is no summary of the evidence contained on the "Record of Disciplinary Hearing" form. Execution of the sanction of forty (40) days of isolation was stayed in order for plaintiff to appeal. Plaintiff verified that he had received a copy of the "Record of Disciplinary Hearing" form.
Plaintiff, knowing he had been found guilty, did not appeal because, he alleges, no summary of the evidence was set forth in the above-described form. Because he did not appeal, the sanction was implemented by order dated June 16, 2003. Thereafter, he was discharged from the Key Program and the isolation sanction was imposed.
Plaintiff argues that the guilty finding, the sanction, and all other actions were wrongful because no summary of the evidence was given in the "Record of Disciplinary Hearing" form. He generally alleges violations of statutory and constitutional rights.
Plaintiff has failed to state a claim upon which relief can be granted.
I examine the constitutional rights first. He maintains defendants' actions violated his constitutional rights of prejudice and cruel and unusual punishment. There is no constitutional right of "prejudice". Although plaintiff broadly asserts his right to be free of cruel and unusual punishment was violated, his complaint does not in any way support a claim that such right was violated. The only possible claim he has asserted is a violation of due process. However, DOC provided plaintiff with notice and an opportunity to tell his side of the story before placing him in isolation. This is all that due process requires.Johnson v. Anderson, 370 F. Supp. 1373 (D. Del. 1974). Consequently, plaintiff fails to state a claim for a violation of any constitutional rights.
I turn to the claim of a violation of a statutory right. The rules of discipline and grievance procedures are promulgated pursuant to 11 Del. C. § 6535. Even assuming the rules and regulations required a summary of the evidence, something plaintiff no where has established, such a violation would not give rise to a claim of a per se violation of plaintiff's statutory rights because rules and regulations promulgated pursuant to this statute do not have the force of law. State v. Smith, Del. Super., Def. ID# 87004261, Gebelein, J. (December 18, 1992), aff'd, 623 A.2d 1143 (1993).
In 11 Del. C. § 6535, it is provided in pertinent part as follows:
The Department shall promulgate rules and regulations for the maintenance of good order and discipline in the facilities and institutions of the Department. . . .
NOW, THEREFORE, THIS 7TH DAY OF NOVEMBER, 2003, IT IS HEREBY ORDERED AS FOLLOWS:
1) The motion to proceed in forma pauperis is denied; and
2) The complaint is dismissed as legally frivolous.