Opinion
C.A. No. 00M-08-019
Submitted: August 30, 2000
Decided: October 4, 2000
Pending before the Court is a petition seeking a writ of mandamus ("petition") which petitioner Norris K. Bryan ("petitioner") has filed against Garland Messick and Janice Moore ("respondents"), who are employees of the Records Department at Sussex Correctional Institution. Also pending is a motion to proceed in forma pauperis.
In this petition, petitioner references exhibits which he asserts are attached. No exhibits are attached to the petition which has been filed with the Court.
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 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) If they are, then the Court will allow the action to continue. 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.
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).
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 part. 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).
In his petition, petitioner alleges he is entitled to a writ of mandamus instructing respondents to grant him credit for Level 5 time served on his sentence in Criminal Action No. S98-05-0557 ("Cr.A. No. S98-05-0557") . In order to examine his claim, I must review the file in State v. Bryan, Def. ID# 9805008469.
On July 21, 1998, petitioner was sentenced in Cr. A. No. S98-05-0557 as follows:
Effective July 21, 1998, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of three (3) years, giving credit for time served on this charge. This sentence is suspended f or twelve (12) months at Supervision Level 4 (Residential Substance Abuse Treatment Program). Upon successful completion of Residential Substance Abuse Treatment Program this sentence is suspended and followed by six (6) months at Supervision Level 4/3 (Aftercare), followed by one (1) year at Supervision Level 2, consecutive to any probation previously imposed. The defendant shall be held at Level 5 until space is available in Level 4.
Petitioner alleges he was released in the latter part of August 1998 to Level 4 Residential Substance Abuse Treatment after serving approximately three (3) months at Level 5. Petitioner does not state whether he was held at Level 5 pursuant to the sentence in Cr. A. No. S98-05-0557, a fact which will need to be developed at a later stage of the proceedings.
Petitioner further alleges he was found in violation of probation on May 28, 1999. His criminal file in State v. Bryan, Def. ID# 9805008469, shows that on May 28, 1999, petitioner was sentenced as follows:
Effective May 28, 1999, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 3 years, including credit for any time previously served.
Petitioner was referred to the Key South Program in this order. That referral, however, is of no concern to the Court in addressing the pending petition.
Petitioner maintains that he is entitled to credit for Level 5 previously served on Cr. A. No. S98-05-0557. He is entitled to Level 5 credit for time served on this sentence if he actually served Level 5 time on this sentence. Collick v. State, Del. Supr., 718 A.2d 526 (1998). It may well be that petitioner was awaiting Level 5 time on another sentence or he did not serve Level 5 time on this sentence. But, based upon petitioner's assertions, which are accepted as true solely for purposes of reviewing the pending petition, I conclude that the action should proceed at this time. Once respondents have replied, the Court will be able to determine if petitioner's claims are legally and/or factually meritorious.
In light of the foregoing, the Court allows the action to move forward and instructs that service of process issue.
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.
IT IS SO ORDERED.