Opinion
C.A. No. S08M-10-034.
Submitted: November 3, 2008.
Decided: November 18, 2008.
Anthony J. Kellam, SBI#, James T. Vaughn Correctional Center, Smyrna, DE.
ORDER REGARDING AFFIDAVIT
WHEREA S, petitioner Anthony J. Kellam ("petitioner") has filed a petition seeking a writ of mandamus regarding the amount of good time credits which petitioner has accrued;
WHEREAS, in order to determine, pursuant to 10 Del. C. § 8803, if petitioner's petition states a cause of action, this Court requires the submission of an affidavit from the appropriate person on beh alf of the Department of Correction ("Department") explaining what good time credits petitioner has and in particular addressing petitioner's contention that when he was transferred, in 2002, from Sussex Correctional Institution to James T. Vaughn Correctional Center, the Department did not transfer or forward to James T. Vaughn Correctional Center good time credits he already had earned while working in the kitchen and while participating in treatment and rehabilitation programs while housed at Sussex Correctional Institution;
NOW, THEREFORE, THIS 18th DAY OF NOVEMBER, 2008, IT IS HEREBY ORDERED AS FOLLOWS:
On or before December 19, 2008, an employee from the Department who has knowledge and information concerning petitioner's good time credits is to submit, in affidavit form, an explanation of what good time credits the Department has awarded petitioner and whether the good time credits awarded include any and all credits accrued while petitioner was housed at Sussex Correctional Institution.
Dear Mr. Kellam:
Petitioner Anthony J. Kellam ("petitioner") has filed a petition seeking a writ of mandamus regarding the transfer of his meritorious good time credits to James T. Vaughn Correctional Center from Sussex Correctional Institution. He also has filed a motion to proceed in forma pauperis.
Petitioner has established he is indigent, and accordingly, the Court grants the motion to proceed in forma pauperis.
The Court also reviews the petition to determine whether it states a claim so that the action might proceed. 10 Del. C. § 8803(b). If the Department of Correction ("Department") is not awarding him the correct amount of good time credits, then petitioner is entitled to a writ of mandamus. See Pitts v. Snyder, Del. Supr., No. 390, 1994, Hartnett, J. (December 29, 1994); Murray v. Messick, Del. Super., C.A. No. 94M-08-002, Graves, J. (February 23, 1995); Jordan v. State, Del. Super., C.A. No. 93M-08-003, Graves, J. (May 12, 1994).
However, in order to determine if the petition is valid and states a claim, the Court first will need an employee from the Department who has knowledge and information concerning petitioner's good time credits to submit, in affidavit form, an explanation of what good time credits the Department has awarded petitioner and whether the good time credits awarded include any and all credits accrued while petitioner was housed at Sussex Correctional Institution. Consequently, I am issuing, in connection with this letter, an order instructing the submission of such an affidavit on or before December 19, 2008.
Although this Court could order that the petition in this matter be served before requiring an affidavit, it makes sense, judicially and economically, to omit the service requirement. The Court could require the production of this affidavit within the criminal matters. Consequently, I suspend the formalities of service in this case.
IT IS SO ORDERED.