Opinion
C.A. No. 00M-08-031
Submitted: September 22, 2000
Decided: October 3, 2000
Pending before the Court are a petition seeking a writ of mandamus ("petition") and a motion to proceed in forma pauperis which petitioner Hubert E. Parker ("petitioner") has filed. Herein, I render decisions on the motion to proceed in forma pauperis and on whether the action may proceed.
MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner's motion to proceed in forma pauperis meets the requisites of chapter 88, 10 Del. C. A review of the submitted documentation evidences that petitioner is indigent. Accordingly, I grant the amended motion to proceed in forma pauperis.
However, the granting of this motion does not mean, necessarily, that petitioner's action will proceed. Instead, I must review the petition to determine if the allegations contained therein are factually and/or legally meritorious. 10 Del. C. § 8803(a), (b). The Court will dismiss those allegations and claims which are factually and/or legally frivolous. 10 Del. C. § 8803(b).
In 10 Del. C. § 8803 (a) and (b), it is provided:
(a) In all cases in which a court has granted an individual leave to proceed in forma pauperis, the court shall issue an order authorizing the filing of the complaint and establishing the amount of court costs and filing fees to be paid. The court may, in its discretion, establish a schedule for the payment of the costs and fees.
(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.
REVIEW OF PETITION
The law concerning writs of mandamus was clearly set forth in Ross v. Department of Correction, Del. Super., 722 A.2d 815, 819-20 (1998), aff'd in cart, dism. in part, Del. Supr., 722 A.2d 813 (1998) as follows:
The Superior Court possesses jurisdiction to issue, upon application, the writ of mandamus to lower tribunals, boards, and agencies, inter alia, to compel performance of their official duties. A writ of mandamus, however, may not be sought to create a duty, but only to enforce the performance of a pre-existing duty. Issuance of the writ is within the sound discretion of the Court and will be available upon a showing that the petitioner has a clear right to the performance of a duty and that there is no other adequate remedy. [Citations and footnotes omitted.]
As the Supreme Court explained in Guy v. Greenhouse, Del. Supr., No. 285, 1993, Walsh, J. (December 30, 1993):
[W]hen directed to an administrative agency or public official, mandamus will issue only to require performance of a clear legal or ministerial duty. For a duty to be ministerial and thus enforceable by mandamus, the duty must be prescribed with such precision and certainty that nothing is left to discretion or judgment. [Citations omitted.]Accord Taylor v. State, Del. Supr., 716 A.2d 975 (1998); Washington v. Snyder, Del. Supr., 713 A.2d 932 (1998).
Petitioner alleges that he has been denied access to the prison law library. He further alleges that because he has appeals pending before the Supreme Court, he needs access to the law library. He maintains respondent, as supervisor, is responsible for this denial of access to the law library.
This claim may have merit. See Johnson v. State, Del. Supr., 442 A.2d 1362, 1364, 1365 (1982) ("a prison inmate has a constitutional right to 'meaningful access' to the courts based upon principles of equal protection and due process of law" and "meaningful access to the courts involves either access to an adequate law library or legal assistance in the preparation of complaints, appeals, petitions, writs and other legal documents"); Biggins v. Department of Corrections, Del. Super., C.A. No. 00M-02-016, Graves, J. (May 3, 2000) (Court ruled that a claim that a defendant has been denied access to the courts because he has been denied access to legal materials may have merit, and allowed a petition seeking a writ of mandamus to proceed on that allegation); State v. Stewart, Del. Super., Cr. A. Nos. N96-12-1395 — 1398, Alford, J. (January 12, 1998) at 3 ("The United States Supreme Court and the Supreme Court of Delaware recognize a prisoner inmate's constitutional right to 'meaningful access' to the courts and that such right involves either access to an adequate law library or legal assistance in the preparation of legal documents.").
In light of the foregoing, the Court allows the petition to proceed with regard to this allegation. However, petitioner will have to file a praecipe regarding the issuance of service of process before the petition can be served. Petitioner also must follow all rules and procedures of this Court in pursuing this action.
Allowing the petition to proceed does not preclude a subsequent determination on the issue of whether the petition should be dismissed on the ground it is factually or legally frivolous or it is malicious. 10 Del. C. § 8803 (c).
CONCLUSION
For the foregoing reasons, I grant the motion to proceed in forma pauperis. I also have determined, upon a review of the petition, that the petition is not legally or factually frivolous. Consequently, service of process may issue once petitioner properly provides instructions on such service.
IT IS SO ORDERED.