Opinion
C.A. No. 07C-01-202 MMJ.
Submitted: April 29, 2008.
Decided: June 20, 2008.
On Plaintiff's Motion to Compel Discovery. DENIED.
ORDER
1. Deputy is incarcerated in the Delaware Correctional Center in Smyrna. In 2001, Deputy sustained an injury to his left shoulder while in prison. In January 2007, Deputy filed a pro se civil suit against the prison health administrator, medical director and the warden, for intentional delay and mistreatment of his ongoing medical condition.
2. On March 6, 2007, Deputy's claim was dismissed as legally frivolous. As a result, the defendants were not served a copy of the complaint. Deputy appealed to the Delaware Supreme Court. On November 13, 2007, the Supreme Court vacated the dismissal and remanded the case for further proceedings. On March 10, 2008, Deputy filed a Motion to Compel Discovery and a Motion for Discovery pursuant to Superior Court Rule 26.
3. On April 29, 2008, the State filed a Motion in Opposition to Deputy's request for Discovery. The State argues it has not been provided a reasonable opportunity for any good faith participation in the judicial process. Specifically, the State claims the named defendants never been served with process. The State argues that service of process must be made before requiring discovery responses.
4. Superior Court Rule 4(f)(1)(I) provides that service of process shall be made:
[u]pon an individual other than an infant or an incompetent person by delivering a copy of the summons, complaint and affidavit, to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion.
5. The Court recognizes that Deputy is currently incarcerated and pursuing this claim as a pro se litigant. In addition, although proper notice was not filed, the State was fully aware of Deputy's claim. The State responded to Deputy's appeal to the Supreme Court.
6. Deputy is directed to file service of process to the named defendants according to Superior Court Rule 4(f)(1)(I) and 10 Del. C. § 3103(c). Once notified, defendants are required to respond to discovery in accordance with the Superior Court Civil Rules.
THEREFORE, defendant's Motion to Compel Discovery is hereby denied as premature.
IT IS SO ORDERED.