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


KUSHAL KALPAN SHAH, a.k.a.                 )
GERRON LINDSAY,                            )
                                           )
            Plaintiff,                     )
       v.                                  )
                                           )    C.A. No. N13M-10-022 MMJ
ROBERT COUPE, Commissioner of              )
Delaware Department of Corrections         )
                                           )
            Defendant.

                           Submitted: August 29, 2014
                           Decided: November 3, 2014

    Upon Defendant’s Motion to Dismiss Petition for Writ of Mandamus and
            Opposition to Plaintiff’s Motion for Default Judgment
                                 GRANTED


                         MEMORANDUM OPINION

Kushal K. Shah, Petitioner, Pro Se.

Kenisha Ringgold, Esquire, Department of Justice, Attorney for Defendant.




JOHNSTON, J.
                  FACTUAL AND PROCEDURAL CONTEXT

      On June 27, 2002, Plaintiff Kushal Shah (“Shah”) pled guilty, but mentally

ill (“GBMI”) to First Degree Murder. Shah was sentenced to the custody of the

Delaware Department of Corrections (“DOC”) or the Delaware Psychiatric Center

(“DPC”) for the remainder of his natural life. Since the time of sentencing, Shah

has remained at the James T. Vaughn Correctional Center (“JTVCC”). At JTVCC,

Shah receives continuing medical care and mental health treatment.

      On October 9, 2013, Shah filed a Petition for Writ of Mandamus (“Petition”)

in this Court. Shah asserts that 11 Del. C. § 408(b) entitled Shah to be confined

initially at DPC for mental health treatment immediately following Shah’s

sentencing. Shah seeks to have the Court compel DOC to transfer Shah to DPC for

mental health evaluations.

      On June 16, 2014, the State, on behalf Defendant Commissioner Robert

Coupe (“Commissioner Coupe”), filed this Motion to Dismiss Plaintiff’s Motion

Petition for Writ of Mandamus and Opposition to Plaintiff’s Motion for Default

Judgment. 1




1
 The Court simultaneously has entered an Order denying Shah’s Motion for Default Judgment,
and will not address that issue in this Memorandum Opinion.
                                            2
                              STANDARD OF REVIEW

       When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court

must determine whether the claimant “may recover under any reasonably

conceivable set of circumstances susceptible of proof.” 2 The Court must accept as

true all non-conclusory, well-plead allegations.3               Every reasonable factual

inference will be drawn in favor of the non-moving party. 4 If the claimant may

recover under that standard of review, the Court must deny the motion to dismiss. 5

In deciding a motion to dismiss a petition for a writ of mandamus, the Court “must

consider the standards a party must meet in obtaining the writ.” 6


                                        ANALYSIS

       Pursuant to 29 Del. C. § 10143, “[a]ny person aggrieved by the failure of an

agency to take action required of it, by law, may bring an action in the Court for an

appropriate writ of mandamus.” The issuance of a writ of mandamus is within the

Court’s discretion and is not a matter of right. 7 A writ of mandamus only is

appropriate “when a plaintiff is able to establish a clear legal right to the




2
  Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
3
  Id.
4
  Wilmington Sav. Fund. Soc’y, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.) (citing
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).
5
  Spence, 396 A.2d at 968.
6
  Walls v. Williams, 2006 WL 1133563, at *1 (Del. Super.).
7
  Id.
                                              3
performance of a non-discretionary duty.” 8 A “non-discretionary” or “ministerial”

duty is an act that must be “performed in a prescribed manner without regard to the

actor’s judgment as to its propriety or impropriety.” 9 If a petitioner is unable to

show a clear right to the requested performance of a duty, or if there is any

question as to the petitioner’s right, the Court must not issue a writ of mandamus. 10


                                     Parties’ Contentions

       Shah seeks a writ of mandamus to compel DOC to transfer Shah to DPC.

Shah contends that a transfer from DOC to DPC is a non-discretionary duty

because it is required under a literal reading of 11 Del. C. § 408(b). Specifically,

Shah contends that Section 408(b) required Shah to be confined in DPC for mental

health evaluations prior to being incarcerated at JTVCC. Shah also asserts this

issue has been brought to DOC’s and Court’s attention several times, but no action

has been taken, so there is no adequate remedy other than a writ of mandamus. 11

       The State disputes Shah’s clear right to a transfer from DOC to DPC under

Section 408(b).       The State contends that Section 408(b) gives Commissioner

Coupe the discretion to determine that Shah should remain in the custody of DOC


8
  Am. Fed’n of State, County, and Mun. Employees, Council 81 v. State, Pub. Employees
Relations Bd., 2011 WL 2176113, at *2 (Del. Super.) (quoting Darby v. New Castle Gunning
Bedford Ed. Ass’n., 336 A.2d 209, 210 (Del. 1975).
9
  Am. Fed’n, 2011 WL 2176113, at *2.
10
   Walls, 2006 WL 1133563, at *1.
11
   Shah asserts that he has filed grievances, habeas corpus, post-conviction relief motions, and a
motion for correction of sentence, all of which have been denied.
                                                 4
for security purposes. As a result, the State contends that Shah has not met the

burden to demonstrate a clear legal right for a writ of mandamus.


              Section 408(b) Does Not Require Shah’s Transfer to the DPC

          The relevant portion of Section 408(b) provides:

                 In a trial under this section a defendant found guilty but
                 mentally ill, or whose plea to that effect is accepted, may
                 have any sentence imposed which may lawfully be
                 imposed upon any defendant for the same offense. Such
                 defendant shall be committed into the custody of the
                 Department of Correction, and shall undergo such further
                 evaluation and be given such immediate and temporary
                 treatment as is psychiatrically indicated. The
                 Commissioner shall retain exclusive jurisdiction over
                 such person in all matters relating to security. The
                 Commissioner shall thereupon confine such person in the
                 Delaware Psychiatric Center, or other suitable place for
                 the residential treatment of criminally culpable persons
                 with a mental illness under the age of 18 who have been
                 found nonamenable to the processes of Family Court.12


          Shah argues that the plain language of Section 408(b) requires Shah to

undergo psychiatric evaluation at DPC before being released to DOC for

incarceration.       Shah’s argument focuses on the statute’s language that “[t]he

Commissioner shall thereupon confine such person in the [DPC]….” However,

Shah’s reading of Section 408(b) does not take into account the clause providing

for the Commissioner’s exclusive jurisdiction for all matters relating to security.


12
     11 Del. C. §408(b).
                                             5
         Section 408(b) explicitly grants Commissioner Coupe exclusive jurisdiction

for all matters pertaining to security. Additionally, DOC retains custody over Shah

regardless of whether Shah is in DPC or JTVCC. Therefore, the Court finds that

the plain language of Section 408(b) requires Commissioner Coupe to transfer

Shah to DPC for psychiatric evaluation prior to incarceration, unless

Commissioner Coupe determines that Shah should remain in the custody of DOC

for security purposes.

         The Court finds that a decision by Commissioner Coupe to retain Shah at

JTVCC for security reasons would be discretionary, and precludes the issuance of

a writ of mandamus. It is unclear whether Commissioner Coupe has retained Shah

at JTVCC for security purposes. However, Shah has the burden to demonstrate

that the Commissioner has placed Shah at JTVCC for non-discretionary, non-

security reasons. Having failed to do so, the Court finds that Shah is unable to

show a clear legal right to be transferred from JTVCC to DPC.

         Shah also cites State v. Sanders13 in support of the proposition that Section

408(b) requires inmates be treated at DPC prior to being released to DOC for

incarceration. In Sanders, the Delaware Supreme Court considered the issue of

whether a defendant, who was found GBMI, could be sentenced to death.14 In its

analysis, the Supreme Court touched on the interpretation of Section 408(b).

13
     585 A.2d 117 (Del. 1990).
14
     Sanders, 585 A.2d at 120.
                                           6
Specifically, the Supreme Court stated: “Given our ultimate decision to vacate

Sanders’ sentence, we find that if Sanders is ultimately sentenced to life

imprisonment, he must be held in the State Hospital until the Hospital staff

determines that confinement in a correctional institution would be in his best

interests.”15

       Shah relies on this sentence as proof that Shah had a right to be evaluated at

DPC directly after sentencing. However, while the Supreme Court clarified that

Section 408(b) “clearly reflects an intention to vest treatment decisions in the

hands of mental health professionals, rather than prison officials,” the Supreme

Court also acknowledged that the Commissioner retains jurisdiction over “all

matters relating to security.” 16

       Similarly, the Court finds Shah’s reliance on State v. Steimling 17 to be

unpersuasive. Shah’s circumstances are distinguishable from those in Steimling.

In Steimling, the Court interpreted Section 408(b) as it applies when DPC transfers

an inmate back to DOC without Court approval. 18          In addition, the Court in

Steimling did not address the interplay of the Commissioner’s exclusive

jurisdiction over matters of security and an inmate’s right to be transferred to DPC

for mental health treatment.

15
   Sanders, 585 A.2d at 128.
16
   Id.
17
   2010 WL 4060300, at *3 (Del. Super.).
18
   Id. at *4.
                                           7
      Here, Shah is not being transferred from DPC back to DOC for the

remainder of a sentence. Instead, Shah affirmatively seeks a transfer from JTVCC

to DPC for mental health evaluations. The decision to transfer Shah to DPC would

implicate a discretionary clause of Section 408(b) not discussed in Steimling, and

precludes the issuance of a writ of mandamus.


                                   CONCLUSION

      Viewing the facts in the light most favorable to Shah, the Court finds it

should not issue of a writ of mandamus. Under Section 408(b), Commissioner

Coupe has exclusive jurisdiction over matters of security, which allows

Commissioner Coupe to hold Shah at JTVCC at his discretion. As a result, Shah

cannot demonstrate a clear legal right to the relief that is requested.

      THEREFORE, Defendant’s Motion to Dismiss Plaintiff’s Petition for Writ

of Mandamus and Opposition to Plaintiff’s Motion for Default Judgment is hereby

GRANTED.

      IT IS SO ORDERED.




                                                 /s/__Mary M. Johnston___________
                                                    The Honorable Mary M. Johnston




                                           8
