Opinion
C.A. No. 00C-10-002 JTV
Submitted: April 27, 2001
Decided: July 31, 2001
Upon Consideration of Defendant's Motion for Summary Judgment GRANTED.
William John Evans, Pro Se. Stuart B. Drowos, Esq., Wilmington, Delaware. Attorney for Defendant.
ORDER
Upon consideration of Defendant's motion for summary judgment, it appears that:
1. The plaintiff, William J. Evans, an incarcerated individual, is serving a sentence of four years, eight months at Level V for Arson First Degree. His short term release date is January 22, 2002. After completing the Level V portion of the sentence, he will go to Level IV-Halfway House for six months, followed by six months at Level IV-Plummer Center, followed by Level III. While waiting to move to the Level IV-Halfway House, he will be held at Level V.
2. He has filed a complaint in this Court against The State of Delaware, the Department of Correction, and "Participating Courts." He seeks declaratory and injunctive relief, alleging a violation of state law and his state and federal constitutional rights. He claims that established law requires his conditional release upon completion of the Level V portion of his sentence. More specifically, he claims that he should not be held at Level V awaiting space at Level IV after completing the Level V portion of his sentence. Rather, he insists that he should be placed on conditional or "good time" release upon completion of the Level V portion of his sentence. He also argues that it is a violation of his rights to be held at the VOP center while awaiting for available space at Level IV.
2. The State has filed a motion to dismiss the plaintiff's complaint. Since it has an affidavit of Rebecca McBride, a Records Supervisor at the Department of Correction, attached to it, the motion will be considered as a motion for summary judgment.
Schultz v. Delaware Trust Co., Del. Super., 360 A.2d 576 (1976).
3. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. If the movant supports the motion with proper affidavits, the burden shifts to the non-moving party to show, using support taken from the developed record or with opposing affidavits, that a material issue of fact exists. If there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1087 (1994).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 681 (1979); Del. Super. Ct. Civ R. 56(e).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Wootten v. Kiger, Del. Supr., 226 A.2d 238, 239 (1967); Frelick v. Homeopathic Hosp. Ass'n of Delaware, Del. Super., 150 A.2d 17, 19 (1959).
4. Most of the plaintiff's complaint seems to revolve around the portion of his sentencing order which requires that he be held at Level V until space becomes available for him to move on to Level IV-Halfway House. However, the case of Defoe v. State establishes that this Court has the discretionary authority to hold a prisoner at Level V pending available space at Level IV.
Defoe v. State, Del. Supr., 750 A.2d 1200, 1202 (2000).
5. I have carefully reviewed the affidavit of Rebecca McBride and compared it to the information in all papers which the plaintiff has filed. In fact, in one of his papers the plaintiff agrees with the accuracy of the information in the affidavit with one minor exception not material to deciding this motion for summary judgment. There does not appear to be any genuine issue as to any material fact concerning the plaintiff's sentences, and plaintiff's sentences appear to be in proper order.
5. The rest of the plaintiff's complaint seems to consist of complaints of the conditions at the Violation of Probation Center ("VOP Center") in Georgetown and the use of the VOP Center as a "weigh station" for persons with sentence orders requiring that they be held at Level V pending space available at Level IV. I note that the plaintiff is not being held at the VOP Center nor does the record indicate that he has been at any time relevant to this proceeding. He clearly lacks standing to assert any complaint on behalf of persons presently housed there. In order for declaratory relief to be appropriate there must be an actual controversy which is ripe for judicial determination. Although the plaintiff claims that under current Department of Correction policies he is "subject" to being sent to the VOP Center while waiting for space at Level IV, it is very unclear as to whether in January 2002 the plaintiff will go through the VOP Center en route to Level IV-Halfway House or not, or, if he does, whether he will be there long enough to suffer, to any appreciable extent, the perceived harms of which he complains. Therefore, the plaintiff's issues concerning the VOP Center are not presently ripe for judicial determination.
Winward v. Department of Corrections, Del. Super., C.A. No. 98C-08-124, Cooch, J. (Nov. 10, 1999) (Letter Op.).
6. Therefore, the State's motion for summary judgment is granted. IT IS SO ORDERED.