Opinion
C.A. No. K18M-06-006 WLW
01-04-2019
JAMES WILSON, Petitioner, v. WARDEN DANA METZGER and IMAM MICHAEL WATERS, Respondents.
James A. Wilson, Petitioner, pro se. Joseph C. Handlon, Esquire of the Department of Justice, Wilmington, Delaware; attorney for Respondents.
ORDER
Upon Respondents' Motion to Dismiss Petitioner's Petition for Writ of Mandamus
Granted.
Motion for Default Judgment
Moot. James A. Wilson, Petitioner, pro se. Joseph C. Handlon, Esquire of the Department of Justice, Wilmington, Delaware; attorney for Respondents. WITHAM, R.J.
Before the Court is a Motion to Dismiss a petition for writ of mandamus pursuant to Delaware Superior Court Civil Rule 12(b)(6). Petitioner James Wilson ("Petitioner") filed a Writ of Mandamus against certain Delaware Department of Corrections personnel. The Petitioner also moved for a default judgment. In their Motion to Dismiss, Respondents Warden Dana Metzger ("Respondent Metzger") and Imam Michael Waters ("Respondent Waters"), cite insufficient service of process pursuant to 10 Del. C. § 3103(c) as grounds for dismissal.
Respondent Metzger filed the Motion to Dismiss on September 20, 2018. Respondent Waters joined on December 14, 2018.
For the following reasons, the motion to dismiss is granted without prejudice pursuant Delaware Superior Court Rule ("Rule") 12(b)(5) vice 12(b)(6).
Respondents argue that the Petitioner did not comply with the service requirements pursuant to 10 Del. C. § 3103 (c) as the basis of their 12(b)(6) motion. However, the Court finds it appropriate to analyze this motion under Rule 12(b)(5) in light of the fact that the Respondents argue that proper service was not made pursuant to the Statute.
1. The Petitioner is currently incarcerated at James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware.
2. The Petitioner filed a petition for a writ of mandamus with the Court on June 19, 2018.
3. The Petitioner alleges that during his incarceration at JTVCC, Respondent Waters has:
i. interfered with Constitutional rights of Nation of Islam members;
ii. identified the Nation of Islam as "disbelievers," presumably of Islam;
iii. created a "hostile environment against other sects of Islam by engaging in active campaign against other sects of Islam;" and
iv. failed to establish other religious services for the Nation of Islam.
4. The Petitioner further alleges Respondent Metzger failed to provide religious activities for other Islamic sects.
5. The Petitioner prays for the Court to order:
i. the removal of Respondent Waters, presumably from acting as an Imam, and for the appointment of an Imam willing to aid in the spiritual development of other Islamic sects;
ii. the establishment of religious services for the Nation of Islam;
iii. a prohibition on Respondent Waters from propagating falsehoods about other Islamic sects; and finally,
iv. Respondent Metzger's allocation of services for Islamic communities.
6. The Respondents oppose and move to dismiss the petition pursuant to Rule 12(b)(6) on the basis of insufficient service under 10 Del. C. § 3103(c). However, since Respondents argue that the petition should be dismissed due to insufficient service, the Court finds a Rule 12(b)(5) analysis is more appropriate.
7. In Delaware, any summons initiating a lawsuit against the State of Delaware or any state officer, must be served upon the Attorney General, State Solicitor, or Chief Deputy Attorney General, in addition to the Defendants.
10 Del. C. § 3103(a); (c).
8. The Respondents argue that proper service was not made because none of those individuals were served pursuant to section 3103(c). The Court agrees and finds their argument meritorious.
9. In this case, the New Castle County Sheriff's Office served process on Respondent Metzger through her authorized agent, Michael Little at JTVCC on July 3, 2018 pursuant to section 3103(a). At the same time, Respondent Waters was served in precisely the same manner pursuant to the statute. The record is silent, however, to any process being served upon the Attorney General, State Solicitor, or Chief Deputy Attorney General's office pursuant to section 3103(c).
Sheriff's Return of Service, Sheriff # 18-005718, July 5, 2018.
Id.
As of January 2, 2019, the record is silent as to any service of process on those individuals.
10. No service of summons upon the State...shall be complete until such service is completed. Since service has not been served pursuant to section 3103(c), service has not been perfected. As a result, the Court must dismiss the Petitioner's writ of mandamus petition.
CONCLUSION
11. Thus, for the reasons stated above, the Respondents' motion to dismiss the Petitioner's petition for writ of mandamus is GRANTED without prejudice. Petitioner's motion for default judgment is MOOT.
Petitioner should carefully review the arguments of the Respondents for the substantive reasons why the petition for a writ of mandamus must be dismissed. --------
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge WLW/dmh
oc: Prothonotary
cc: James A. Wilson, JTVCC
Joseph C. Handlon, Esquire