             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                       IN AND FOR NEW CASTLE COUNTY




STEVEN MCLEOD                             )
                                          )
              Plaintiff,                  )
                                          )
        v.                                )       C.A. No. N11C-03-111 MJB
                                          )
HUGHEY F. MCLEOD                          )
                                          )
                                          )
              Defendant.                  )


                               Submitted: February 18, 2015
                                 Decided: March 31, 2015


              Upon Plaintiff’s Second Motion for Order to Transport, DENIED.



                                        OPINION



Steven A. McLeod, pro se, 1050 Big Joe Road, Monticello, Florida 32344.

Cynthia H. Pruitt, Esq., Doroshow, Pasquale, Krawitz & Bhaya, 1208 Kirkwood Highway,
Wilmington, Delaware 10805, Attorney for Defendant.




Brady, J.




                                              1
                                                   I. INTRODUCTION


           This is a personal injury case. Plaintiff Steven A. McLeod (“Plaintiff”) alleges that he

was sexually abused by his father Defendant Hughey F. McLeod (“Defendant”) from

approximately December 1967 through January 1972. Both parties were domiciled in Delaware

at the time of the alleged abuse, but both now reside in Florida. Plaintiff is incarcerated in

Florida serving a life sentence. On April 29, 2011, Plaintiff filed the instant action under 10 Del.

C. § 8145.


           Because he is incarcerated, Plaintiff has repeatedly asked to Court to enter an Order

directing the Florida Department of Corrections and the Delaware Department of Corrections to

arrange for him to be transported to Wilmington, Delaware for trial and housed in Wilmington

during the trial. The Court has already denied Plaintiff’s previous Motion to Transport, and the

instant Motion is DENIED as well.




                                    II. PREVIOUS REQUESTS TO TRANSPORT


           On February 26, 2014, the Court received Plaintiff’s letter in which Plaintiff states that

this Court “will have to enter an Order to have [Plaintiff] transported up [to Wilmington] to be

housed in the New Castle County Jail” during the trial. 1            On March 28, 2014, the Court




1
    Plaintiff’s Letter, February 26, 2014, Item 126.

                                                          2
responded to Plaintiff’s request by denying his implied Motion for an Order to Transport. 2 In the

letter, the Court explained that this Court could not require that Plaintiff be transferred to

Delaware. The Court also noted that if Plaintiff were transported to Delaware, the State of

Delaware would incur costs for care, food, and housing of Plaintiff, and that the Court could not

require the State of Delaware to pay these expenses. Finally, the Court stated that, should the

respective correctional authorities in Florida and Delaware agree to an arrangement that would

permit Plaintiff to come to Delaware, the Court had no objection.


         On August 20, 2014, the Court received a second letter from Plaintiff reiterating his

request that he be transported for trial. 3 Plaintiff asked, rhetorically, how the Court plans to

conduct a five-day trial with the Plaintiff in Florida and everyone else in Wilmington. On

September 9, 2014, the Court sent Plaintiff a letter in response, explaining that it is the plaintiff’s

responsibility to determine how to successfully prosecute the case. 4 The Court noted that it is

aware of the challenges that Plaintiff will face in presenting this case, but the Court cannot

provide any advice on how to meet these challenges.


         On September 22, 2014, Plaintiff filed a Motion to Transport with the Prothonotary. 5 In

the Motion, Plaintiff argued that the Court erred in denying his previous requests for an Order to

Transport. Plaintiff argued that while incarcerated plaintiffs do not have an absolute right to be

physically present at trial, there are several factors that the Court must consider, including (1)

whether the plaintiff’s presence will substantially further the resolution of the case; (2) the

expense and potential security risk associated with transportation and housing; and (3) the



2
  Court’s Letter, March 28, 2014, Item 141.
3
  Plaintiff’s Letter, August 20, 2014, Item 179.
4
  Court’s Letter, September 9, 2014, Item 186.
5
  Motion, Item 190.

                                                   3
likelihood that a stay pending the plaintiff’s release will prejudice the proceedings. 6 Plaintiff

further argued that Plaintiff’s credibility is a critical issue in this case, and the Plaintiff’s

credibility can only be adequately determined by the fact finder with the help of Plaintiff’s

presence. 7 Plaintiff suggested that in enacting 10 Del. C. §8145, the Delaware legislature

already took into account the expense of providing a remedy to plaintiffs such as himself whose

causes of action were previously barred by the statute of limitations.


        The Court denied Plaintiff’s Motion to transport on the grounds that, as Plaintiff

recognized in his Motion, 8 there is no constitutional right for an incarcerated plaintiff to be

present at his civil trial, but rather that it is a matter of judicial discretion. 9 The Court found the

instant case importantly distinguishable from cases in other jurisdictions where the courts have

ordered prisoner-plaintiffs transported. 10         Unlike in the cases cited by Plaintiff, Plaintiff is

incarcerated in a different jurisdiction from the court system in which his civil claim is

proceeding. The Court found that it had no authority to require the Florida correctional system

to act in any specific fashion, which would implicate questions of state sovereignty. 11 While the

Court recognized that the credibility of Plaintiff will be a significant issue in the trial, there are

sufficient alternatives available, given modern technology, to in-person testimony, such as

participation by videoconference. 12


        In the interim between Plaintiff’s September 22, 2014 Motion to Transport and the instant

Motion, the Court decided to defer decision on Defendant’s two motions to exclude testimony


6
  Motion, Item 190 (citing Hawks v. Timms, 35 F.Supp.2d 464, 465-66 (D. Md. 1999)).
7
  Motion, Item 190 (citing Latiolas v. Whitley, 93 F.3d 205 (5th Cir. 1996)).
8
  Motion, Item 190.
9
  Opinion, Item 201, at 21 (citing Chesapeake Utilities Corp. v. Hopkins, 340 A.2d 154, 155 (Del. 1975)).
10
   Opinion, Item 201, at 23.
11
   Opinion, Item 201, at 23.
12
   Opinion, Item 201, at 24.

                                                         4
from Plaintiff’s proffered experts. 13 The Court extended Plaintiff 90 days to supplement the

record to identify a specific causation expert and the content of this expert’s testimony in

accordance with Rule 26. 14          The trial date was postponed and will be rescheduled upon

resolution of these matters. 15




                                         III. THE INSTANT MOTION


        On February 18, 2015, Plaintiff filed the instant Motion to Transport. 16 In the instant

Motion, Plaintiff asks the Court to enter an Order to Transport directing the New Castle County

Police Department or the Delaware State Police to “take custody of the plaintiff and transport

him to the New Castle County Jail to be held a sufficient time prior to the March 19, 2015 Pre-

Trial Conference and other proceedings in this case.” 17


        Plaintiff does not advance any different arguments, substantively, or provide any

different authority than in his previous requests to be transported.                  He argues simply that

“Plaintiff has the necessity to be present due to his pro se status and [he is] currently incarcerated

in the Florida Department of Corrections which makes a trial virtually impossible without his

physical presence in the courtroom.” 18




13
   Opinion, Item 211.
14
   Opinion, Item 211, at 17.
15
   Opinion, Item 211, at 17, n.98.
16
   Motion, Item 206.
17
   Motion, Item 206. At the time, the Pretrial Conference was scheduled for March 19, 2015 and trial was scheduled
for April 13. Both dates have been rescheduled, as noted, infra.
18
   Motion, Item 206.

                                                        5
                                         CONCLUSION


For the reasons stated previously, 19 and upon further consideration finding no legal basis to rule

differently, the Motion is DENIED.


IT IS SO ORDERED.



                                                      _______________/s/_________________
                                                      M. JANE BRADY
                                                      Superior Court Judge




19
     Opinion, Item 201.

                                                 6
