          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WALTER EARL ALLEN, II,     :
                           :
        Petitioner,        :                       C. A. No. K15M-10-007 JJC
                           :                       In and for Kent County
    v.                     :
                           :
COMMISSIONER ROBERT COUPE, :
GOVERNOR JACK MARKELL, and :
WARDEN DAVID PIERCE,       :
                           :
        Respondents.       :

                                         ORDER

       On this 18th day of February 2016, having considered Respondents Governor
Jack Markell, Commissioner Robert M. Coupe, and Warden David Pierce’s
(hereinafter “Respondents’”) motion to dismiss Petitioner Walter Earl Allen’s, II,
(hereinafter “Allen’s”) petition for a writ of mandamus, it appears that:
       1. Allen is an inmate incarcerated at the James T. Vaughn Correctional Center
(hereinafter “JTVCC”) and housed in its Secured Housing Unit (hereinafter “SHU”).
He alleges that he is not receiving adequate mental health treatment and that the State
is violating his civil rights by placing him in JTVCC’s SHU.
       2. Allen filed, in forma pauperis, a petition for a writ of mandamus (hereinafter
“Petition”) requesting proper classification, mental health treatment, and the
opportunity to work or to transfer to another prison. Respondents filed a motion to
dismiss the Petition. Respondents argue that Allen has not demonstrated a clear right
to a particular classification or to mental health care because classification and
designation to participate in a particular rehabilitative program are not ministerial duties
of the Respondents that could be remedied through a writ of mandamus. Respondents
emphasize that the relief requested falls within the discretion of the Delaware
Department of Correction (“DOC”). With no clear right established, and no ministerial
duty to act, Respondents move for a dismissal, or in the alternative, summary judgment.
The Court agrees that, pursuant to 10 Del. C. § 8803(c) and Delaware Superior Court
Civil Rule 12(b)(6), the Petition is legally frivolous and must be dismissed. Therefore,
for the following reasons, Respondents’ motion to dismiss is GRANTED.
       3. Delaware courts have consistently followed the standards of Superior Court
Civil Rule 12(b)(6) when considering motions to dismiss writ of mandamus petitions.1
When deciding a motion to dismiss under Superior Court Civil Rule 12(b)(6), all well-
pleaded allegations in a complaint or petition must be accepted as true.2 The test for
sufficiency is a broad one: the pleading will survive the motion to dismiss so long as
“a plaintiff may recover under any reasonably conceivable set of circumstances
susceptible of proof under the [petition].”3 Stated differently, a petition will not be
dismissed unless it clearly lacks factual or legal merit.4 As the Delaware Supreme
Court has held, “[i]n deciding a motion to dismiss with respect to a petition for a writ
of mandamus, this Court must consider the standards a party must meet in obtaining a
writ.”5 Pursuant to 10 Del. C. § 8803, the Court also must review whether an in forma




       1
         See Shah v. Coupe, 2014 WL 5712617, *1 (Del. Super. Nov. 3 2014); Pinkston v. DE
Dept. of Corr., 2013 WL 6439360, *1 (Del. Super. Dec. 4, 2013).
       2
           Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
       3
           Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952)).
       4
           Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
       5
         Caldwell v. Justice of the Peace Court No. 13, 2015 WL 9594709, at *3 (Del. Super.
Dec. 30, 2015).

                                                 2
pauperis claim is legally or factually frivolous or malicious.6 Upon such a finding, the
Court shall dismiss the action.7 If the Court does not dismiss a petition initially, but
later finds that it is factually or legally frivolous or malicious, the Court also may
dismiss the petition.8 With regard to this standard, a claim is factually frivolous where
the factual allegations are “baseless, of little or no weight, value or importance, not
worthy of serious attention or trivial.”9 A claim is legally frivolous where it is “based
on an indisputably meritless legal theory.”10
       4. A writ of mandamus is an extraordinary remedy issued by this Court to
compel a lower court, agency, or public official to perform a nondiscretionary or
ministerial duty.11 The issuance of a writ is within the Court’s discretion; it is not a
matter of right.12 Before a writ is issued, “the Petitioner must demonstrate that: he [or
she] has a clear legal right to the performance of the duty; no other adequate remedy
is available; and the [lower body] has arbitrarily failed or refused to perform that
duty.”13 A nondiscretionary or ministerial duty must be “prescribed with such precision



       6
           10 Del. C. § 8803(b).
       7
           Id.
       8
           10 Del. C. § 8803(c).
       9
           10 Del. C. § 8801(4).
       10
         Desmond v. Phelps, 2011 WL 7144241, *2 (Del. Super. Nov. 4, 2011) (citing 10 Del.
C. § 8801(7)).
       11
            Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015).
       12
            Shah, 2014 WL 5712617, at *1.
       13
           Nicholson v. Taylor, 882 A.2d 762(TABLE), 2005 WL 2475736, *2 (Del. 2005); see
also Brittingham, 113 A.3d 519 (Del. 2015).

                                                3
and certainty that nothing is left to discretion or judgment.”14 If the duty is
discretionary, the right is doubtful, the power to perform the duty is inadequate or
wanting, or if any other adequate remedy exists, then the Petitioner is not entitled to a
writ of mandamus.15
       5. In Pinkston v. Delaware Department of Correction,16 the Superior Court
reviewed a similar claim as that made by Allen. There, Petitioner was incarcerated at
JTVCC and was reassigned to the SHU after an institutional infraction.17 In his Petition,
he alleged that he was improperly classified and that his rights were violated. Petitioner
therefore sought to be reclassified to a lower security status and assigned to a treatment
program through a petition for a writ of mandamus.18 The Pinkston Court cited the
United States Supreme Court for the proposition that an inmate has no constitutionally
protected liberty interest in a particular classification or level of custody.19 Furthermore,
neither Delaware law nor DOC regulations provide for a liberty interest in inmate
classification.20 Because the Petitioner failed to establish a clear right to the
performance of a non-discretionary duty, he was not entitled to the writ.21




       14
            Id.
       15
            Pinkston, 2013 WL 6439360, at *1.
       16
            Pinkston v. DE Dept. of Corr., 2013 WL 6439360, (Del. Super. Dec. 4, 2013).
       17
            Id.
       18
            Id.
       19
            Id. at*3.
       20
            Id.
       21
            Id. at *5.

                                                4
       6. Likewise, in Desmond v. Phelps22 the Superior Court also concluded that
“Delaware’s penal system [provides] no protected liberty interest in a particular
classification or in a particular housing unit.”23 The claimant, in that case, was placed
in maximum security and filed a petition for writ of mandamus to be transferred to a
less restrictive classification.24 There, the Court recognized that the transfer of a
prisoner is within the discretion of prison officials.25 Because the duty to classify
inmates is discretionary, the Court refused to intervene and dismissed the petition as
legally frivolous.26
       7. In the separate context of 42 U.S.C. § 1983 actions, the Federal District Court
of Delaware and the Third Circuit Court of Appeals have recognized that inmates have
no constitutional rights to rehabilitative treatment. In Abraham v. Danberg,27 the
plaintiff was transferred to the SHU and removed from a drug treatment program
following a disciplinary violation.28 The plaintiff brought an action pursuant to 42
U.S.C. § 1983 alleging constitutional violations.29 The Abraham Court stated that
“[p]risoners have no constitutional right to drug treatment or other rehabilitation.”30 The


       22
            Desmond v. Phelps, 2011 WL 7144241 (Del. Super. Nov. 4, 2011).
       23
            Id. at *2.
       24
            Id. at *3.
       25
            Id. at *2
       26
            Id. at *3
       27
            Abraham v. Danberg, 832 F. Supp.2d 368 (D. Del. 2011).
       28
            Id. at 373.
       29
            Id. at 369.
       30
            Id. at 375.

                                               5
Court also cited precedent holding that prisoners do not have a constitutional right to
rehabilitation, education, or jobs.31
       8. Likewise, in Groppi v. Bosco,32 the appellant alleged that he was prevented
from participating in a drug treatment program at a halfway house due to an earlier
unrelated sentence in Connecticut.33 He filed a complaint pursuant to 42 U.S.C. § 1983
seeking declaratory and injunctive relief.34 The Court held that appellant did not have
a constitutional right to participate in a drug treatment program, and that prison officials
have full discretion in determining eligibility for rehabilitative programs.35
       9. Here, Allen requests to be classified differently, released to the general
population, given an opportunity to participate in mental health treatment and work, or
to be transferred to a different prison. Allen has not demonstrated a clear legal right
to his requested relief. Namely, Allen does not have a constitutional right to any
particular classification or type of housing. Such decisions are fully within the
discretion of DOC and public officials within that agency. Inmates have no legal right
to choose their classification or housing. Furthermore, any decisions regarding
placement of Allen in particular rehabilitative, mental health treatment, or work
programs are discretionary. They do not involve a ministerial or non-discretional duty
that could be addressed through a petition for writ of mandamus.
       10. Allen requests entirely discretionary relief which is not a matter of right.


       31
            Id. (citing Rhodes v. Chapman, 452 U.S. 337, 348 (1981)).
       32
            Groppi v. Bosco, 208 Fed.Appx. 113 (3d Cir. 2006).
       33
            Id. at 114.
       34
            Id.
       35
            Id. at 115.

                                                 6
Allen also did not adequately plead the requirements for a writ of mandamus. His
claims have no legal merit and are therefore legally frivolous. Accordingly, it is
apparent to the Court that dismissing the Petition is appropriate pursuant to 10 Del. C.
§ 8803(c) and Superior Court Civil Rule 12(b)(6).
      WHEREFORE, Petitioner’s request for a writ of mandamus is legally frivolous
and does not present a claim for which relief may be granted. Accordingly,
Respondents’ motion to dismiss is GRANTED with prejudice.
      IT IS SO ORDERED.
                                               /s/Jeffrey J Clark
                                                    Judge


JJC/jb
Via File & ServeXpress
copy: Walter Earl Allen, II, Pro se




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