Opinion
C.A. NO. 00M-03-001.
DATE: June 26, 2000.
DECISION ON ISSUES RAISED BY COURT SUA SPONTE
On March 1, 2000, petitioner Joseph Lee Holden ("petitioner") filed a petition in this matter seeking a writ of mandamus ("the petition"). Petitioner also filed a motion to proceed in forma pauperis. However, he did not submit with that motion an inmate account summary as is statutorily required. 10 Del. C. § 8804 (a).
The Prothonotary's Office instructed him to file an inmate account summary on or before April 3, 2000. Petitioner filed the account summary on April 4, 2000; however, it was placed in his criminal file, not in the civil file in this matter. On April 12, 2000, the Court entered an order dismissing the petition due to petitioner's failure to file the inmate account summary. At that time, the Court was unaware that such had been filed. Petitioner did not appeal the April 12, 2000 order or attempt to clarify that he had filed the inmate account summary.
Recently, the Prothonotary's Office discovered that petitioner had filed the inmate account summary. The Court has reviewed the summary, and determines that the order of April 12, 2000 dismissing the case for petitioner's failure to comply with a Court directive should be vacated, and petitioner's motion to proceed in forma pauperis should be considered. Consequently, I consider, below, petitioner's motion to proceed in forma pauperis.
Once a petitioner provides the statutorily-required threshold information, as petitioner has done here, then the Court determines whether it should grant the motion to proceed in forma pauperis. 10 Del. C. § 8802 (b). If it does grant the motion, then the Court reviews the complaint to determine whether it is factually frivolous, malicious, or legally frivolous. 10 Del. C. § 8803 (a), (b). If a complaint fails to state a claim upon which relief may be granted, then it is deemed legally frivolous. See Gibbs v. Hewes, Del. Super., C.A. No. 98C-03-294, Del Pesco, J. (April 16, 1998). If the Court determines the complaint is faulty because it is legally frivolous, malicious or factually frivolous, then the Court dismisses it. 10 Del. C. § 8803. If not, it allows service of process to issue. Id. And, in certain situations, the Court may dismiss the complaint as to some defendants but allow it to proceed against other defendants. See Smith v. New Castle County Police Department, Del. Super., C.A. No. 99C-03-177, Herlihy, J. (March 23, 1999)
Allowing the complaint to proceed does not preclude a subsequent determination of the issue of whether the complaint should be dismissed on the grounds it is factually frivolous or malicious or the action is legally frivolous. 10 Del. C. § 8803 (c).
In this case, it is clear that petitioner is indigent. Consequently, I grant the motion to proceed in forma pauperis.
I now examine the petition on its merits.
Petitioner contends that the Records Department has failed to appropriately award him good time credit. Petitioner's sentence provides as follows:
Effective January 19, 199G. the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of eight (8) years with credit for time served. After serving five (5) years and successful completion of the Key Program, the balance of the Level 5 is suspended for three (3) years at Level 3 consecutive to any probation previously imposed.
Petitioner has not completed the Key Program. He will not be released from Level 5 until he completes the program. Thus, at this time, the amount of good time credit to which petitioner is entitled is not an issue. Once petitioner completes the Key Program, then the Records Department should apply good time credit. If it does not do so, then the issue of good time credit shall become ripe. Since the credit time issue is not ripe for decision at this time, I conclude that the petition is meritless, and I dismiss it with prejudice.
In an effort to head off a future problem, I clarify that the Court did not intend the phrase "[a]fter serving five (5) years and successful completion of the Key Program" to make the five years mandatory, nor does it interpret this phrase to make the five years mandatory.
CONCLUSION
I enter the following orders in this matter. First, the April 12, 2000 order dismissing the petition is vacated. Second, petitioner's motion to proceed in forma pauperis is granted. Finally, the petition is dismissed because it does not advance an issue which is ripe for decision at this time.
IT IS SO ORDERED.
cc: Warden Rick Kearney Garland Messick, Records Department