IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JEFFREY MORTON , ) ) P etitioner , ) ) C.A. No. N 21 M

- 0 3

- 148 FWW v. ) ) KATHLEEN JENNINGS , ) ) Respondent

. )

Submitted: June 4, 2021 Decided: June 8, 2021 Upon Petitioner’s Motion for Default Judgment

DENIED
. Upon Respondent’s Motion to Dismiss Petitioner’s Petition for a Writ of Mandamus

/Rule to Show Cause for Serious Physical Illness, Injury, or Infirmity

GRANTED.
ORDER

Jeffrey Morton , Philadelphia, PA, pro se. Anna E. Currier , Esquire, Deputy Attorney General, State of Delaware Department of Justice, 820 North French S treet, 6 th Floor, Wilmington, DE 19801, Attorney for Respondent Kathleen Jennings

.

WHARTON, J.2

This 8 t h day of June 20 21 , upon consideration of Petitioner Jeffrey Morton’s (“Morton”) Motion for Default Judgment, and Respondent Kathleen Jennings’(“Jennings”) Response; and Respondent Kathleen Jennings ’ Motion to

Dismiss Petitioner’s Writ of Mandamus, and the record in this case, it appears to the

Court that:

1. Morton , when an inmate at the Howard R. Young Correctional

Institution (“ HRYCI ”), submitted a Petition for a Writ of Mandamus/Motion to Compel/Rule to Show Cause for Serious Physical Illness, Injury or Infirmity (“Petiti on”). 1 The Petition asks this Court to issue a writ of mandamus “compelling the prothonotary of the State of Delaware to schedule his VOP forthwith” and for this Court to “release him on his own recognizance until such time as he can attend

his VOP heari ng.” 2 He also asks the Court to issue a writ of mandamus “compelling the Prothonotary to schedule him for a bail review hearing immediately.” 3 The

p etition giving rise to these requests for relief is an exegeses on the infection risks

of a Level V inm ate at HRYCI during the COVID

- 19 pandemic. Although Morton does not allege that he has contracted COVID

- 19, he alleges that he is at a serious

1 D.I. 1.

2 Id.

3 Id.3

risk of contracting it in violation of his Eighth Amendment rights due to the conditions existing at HRYCI and t he staff’s alleged indifference to those risks. 4

2. After Morton submitted his petition, on April 29 , 2021, a letter captioned “STATEMENT OF DEFAULT. CASE NO. N21M

- 03

- 148 FWW” was submitted to the Prothonotary signed “Jabari Beeks, Petitioner.” 5 The Court is unaware of what connection Jabari Beeks (“Beeks”) has to the Petition, except that

he plainly is not the Petitioner. The letter enclosed an “Affidavit in Support of Default Judgment” and ask s that “ t he matter ” be docketed and notification the reof

be sent to Beeks at HRYCI. 6 The enclosed “Petitioner’s Affidavit in Support of Default Judgment” was signed my Morton, and his signature was notarized. 7 The affidavit represents that a timely answer had not been filed by Jennings and demand s

an un specified sum of money not exceeding the amount demanded in the complaint

. 8

3. On May 3, 2021, Jennings 9 m ove d to dismiss on t wo grounds

– first, Morton has an adequate remedy for a violation of his Eighth Amendment rights through a 42 U.S.C. § 1983 action in United States District Court , and second , even

4 Id.

5 D.I. 7.

6 Id.

7 D.I. 8.

8 Id. The Petition did not seek monetary damages.

9 The Petition simply lists “Kathleen Jennings” as the res pondent. Jennings is the Attorney General , and, presumably, Morton intends to bring this petition against her in her official capacity and not in her personal capacity. Accordingly, t he Court will treat the petition in that fashion.4

if mandamus is the proper remedy, Morton has not established that he has any medical need that is being deliberately disregarded by prison officials. 10 Jennings is correct, but as set out belo w, the Petition has a number of even greater deficiencies.

4. On May 10, 2021, the Court directed Morton to respond to Jennings’

Motion to D ismiss and Jennings to respond to Morton’s request for a default judgment. 11 Both responses were due by June 4th. 12 T he Court’s direction included an admonition that failure to respond will result in the filings being deemed unopposed. 13 Jennings submitted her response on May 21st. 14 On June 2nd, the Court’s letter to Morton at HRYCI was returned with the notation, “Returned to Sender, Refused, Unable to Forward.” 15 It appears that Morton has been released. He has not provided the Court with a forwarding address

. 5. In its response t o Morton’s request for a default judgment, Jennings notes that service was made on her on April 12 th , and t he Motion to Dismiss was filed on May 3 rd , making her response to the Petition timely under Superior Court

10 D.I. 9. Morton does not allege that he has contracted COVID

- 19.

11 D.I. 10.

12 Id.

13 Id.

14 D.I. 14.

15 D.I. 15.5

Civil R ule 12(a). 16 Jennings is correct , and accordingly, the Motion for Default Judgment is DENIED. 17

6. Turning to Jennings’ Motion to Dismiss, “A writ of mandamus is a command that may be issued by the Superior Court to an inferior court, public official or agency to compel the performance of a duty to which the petitioner has

established a clear legal right.” 18 In order for the writ to issue, the petitioner must demonstrate that: 1) he has a clear right to the performance of the duty; 2) no other adequate remedy is available; and 3) the agency has arbitrarily failed or refused to perform its duty. 19 Finally, a writ of mandamus will not issue to compel a discretionary act. 20

7. Jennings seeks to have the Petition dismissed for two reasons. First,

Morton has another remedy is available under 42 U.S.C. § 1983 to purse his Eighth

Amendment claims

. 21 Second, on the m erits, he has not established that he has any

16 D.I. 14.

17 In any event, the request for default judgment seeks a money judgment, something not requested in the Petition. D.I. 1.

18 Samans v. Dep ’ t

. of Correction, 2015 WL 1421411 at *1 (Del., Mar. 27, 2015) quoting Clough v. State, 686 A.2d 158, 159 (Del. 19 96 ).

19 Id., citing In re Bordley, 545 A.2d 619, 620 (Del. 1988).

20 Id., citing Darby v. New Castle Gunn ing Bedford Educ. Ass’n., 336 A.2d 209,211 (Del. 1975).

21 Def ’s Mot. to Dismiss at 3, D.I.9.6

medical need that is being deliberately disregarded by Department of Corrections

officials. 22

8. It is obvious to the Court that the P etition must be dismissed, although

not for the reasons asserted in the motion alone

. There are other more fundamental problems with the Petition. Jennings is the Attorney General. The P etition seeks a writ of mandamus compelling the “prothonotary of the State of Delaware , ” an office that does not exist, 23 to schedule his violation of probation hearing and a bail review hearing. The Attorney General has no authority over the Prothonotary to require it to do what Morton asks. The petition d oes not seek a writ of mandamus compelling the respondent Attorney General to do any thing

. Moreover, even if Morton sought the writ to compel the Attorney General to schedule those hearings , case scheduling is not a duty the A ttorney G eneral is authorized to perform. 24

9. Two other judges of th is c ourt have addressed nearly identical petiti ons recently . Both petitions were dismissed on Jennings’ motions, but for different

reasons. In Romano v. Jennings the petition was dismissed because the petitioner failed to respond to the court’s direction to submit a response to Jennings’ motion to

dismiss. 25 Morton has failed to respond to Jennings’ Motion to Dismiss here as well,

22 Id. at 4

- 6.

23 The Court assumes Morton means the New Castle County Prothonotary.

24 See, Wier v. Stiftel, 377 A.2d 3 (Del. 1977).

25 2021 WL 1986561 (Del. Super. Ct. May 17, 2021).7

but for a different reason. It appears Morton was released prior to receiving the Court’s directive to respond. Nevertheless, he has an obligation to keep th e Court

informed of his address. He has failed to do that. Perhaps he can be reached at the

address in criminal file is valid , but it is not the Court’s obligation to research his

whereabouts to ensure that he receives notice of the Court’s directives in this action

. In Long v. Jennings , Jennings argued, as she does here, that petition should be

dismissed because the petitioner had an available remedy under 42 U.S.C. § 1983. 26

The court in Long agreed and granted Jennings’ motion to dismiss. T his Court
agrees too.
10. Finally, Morton has been released after posting bail

. 27 Thus, he has largely succeeded in obtaining the relief his seeks.

11. Accordingly, for all those reasons , R espondent’s Motion to Dismiss
Petitioner’s Writ of M andamus is GRANTED
. THEREFORE, P etitioner Jeffrey Morton ’s Motion for Default Judgment is

DENIED. Respondent Kathleen Jennings ’ Motion to Dismiss W rit of Mandamus

is GRANTED. The Petition is DISMISSED.
IT IS SO ORDERED

. /s/ 

### Ferris W. Wharton Ferris W. Wharton, Jud ge

26 2021 WL 2134854 (Del. Super. Ct, May 25, 2021).

27 State v. Morton, ID# 1910007361, D.I. 33.