COURT OF CHANCERY OF THE STATE OF DELAWARE

J OSEPH R. S LIGHTS III V ICE C HANCELLOR 417 S. State Street Dover, Delaware 19901 Telephone: (302) 739

- 4397 Facsimile: (302) 739

- 6179
May 25, 2016

Via File&Serve Xpress and First Class Mail

Mr. Salih Hall Mr. Kevin Howard 464 Bethune Drive James T. Vaughn Correctional Center Wilmington, DE 19801 1181 Paddock Road Smyrna, DE 19977

Stuart B. Drowos, Esquire Roopa Sabesan, Esquire Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801

Re: Hall, et al. v. Coupe, et al. C.A. No. 10307

- VCS Date Submitted: December 1, 2015

Dear Mr. Hall, Mr. Howard, and Counsel:

Plaintiffs are a current and a former inmate of the James T. Vaughn

Correction al Center (the “JTVCC”)

, a Delaware correctional facility. They have

initiated this action as a means to challenge the constitutionality of a DelawareHall, et al. v. Coupe, et al.

C.A. No. 10307

- VCS May 25, 2016 Page 2

statute that denies inmates access to certain Department of Correction policies and

procedures.

Defendants are Robert M. Coupe, the Commissioner of the Department of

Correction, Perry Phelps, Chief of the Bureau of Prisons and David Pierce, Warden

of the JTVCC (collectively “Defendants”). They have moved to dismiss Plaintiffs’

complaint on the grounds that it does not plead facts that invoke this Court’s

jurisdiction and does not state a claim upon which this Court may grant the

requested relief. The motion is granted on both grounds.

I. BACKGROUND

A. The Statute at Issue

Delaware has adopted a comprehensive statutory scheme to address the use

and dissemination of information relating to sentencing and incarceration of

individuals convicted of crimes in this S tate. 1 The statut ory provisions at issue

here are 1 1 Del. C. § 4322(c) & (d) (“Sections 4322(c) & (d)”)

, which expressly

1 See 11 Del. C. § 4322 (a)

– (i)

.Hall, et al. v. Coupe, et al.

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prohibit the Department of Correction (“DOC”) from providing certain DOC

policies and procedures to any inmate

. 2

B. Procedural Posture

In their Complaint, Plaintiffs seek a declaration that Section s 4322(c) & (d)

are unconstitutional on two grounds: (1) the provisions violate art. II, § 1 of the

Delaware Constitution ( the “ non

- delegation doctrine ”) 3 “by making the exercise of

the [DOC’s] authority unaccountable, ” 4 and (2) the provisions violate art. II, § 16

2 Specifically, Sections 4322(c) & (d) provide that: (c) No inmate shall be provided a copy of the Department of Correction Policy and Procedures Manuals, The Bureau of Prisons Policy and Procedures Manuals, nor any of the Department of Correction Facilitie s Operational Procedures, Administrative Regulations and Post Orders.

(d) The Department of Correction Policies and Procedures, including any Policy, Procedure, Post Order, Facility Operational Procedure or Administrative Regulation adopted by a Bureau, f acility or department o f the Department of Correction s hall be confidential, and not subject to disclosure except upon the written authority of the Commissioner.

3 Art. II, § 1 of the Delaware Constitution provides that “[t]he legislative power of this Sta te shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives.” See Randy J. Holland, The Delaware State Constitution, A Reference Guide 71 (2002) (noting that the thrust of the non

- delegation doctrine is that “the General Assembly cannot delegate [its] legislative powers [including the power to make laws] to others”).

4 Bill of Complaint in Equity (“Compl.” or “Complaint”) ¶ 14.Hall, et al. v. Coupe, et al.

C.A. No. 10307

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of the Delaware Constituti on (the “Single

- Subject Provision”) because the statute
in which they appear purport s to “embrace more than one subject

. ” 5 T hey ask the

Court to declar e that all DOC “policies, procedures, administrative regulation s and

operational policies .

. . [must] be properly promulgated to the inmate population,

and the general public.” 6 They also seek injunctive relief that would prohibit the

DOC from engaging in any operations or procedures inconsistent with the

requested decla ratory relief.

Defendants have moved to dismiss the Complaint on the ground that

Plaintiffs have not alleged an injury sufficient to invoke this Court’s jurisdiction

. Alternatively, they argue that the Complaint fails to state a n actionable claim for

rel ief

. Plaintiffs opposed Defen dants’ Motion to Dismiss and filed a Cross Motion

for Summary Judgment. After the parties completed briefing on these motions,

Plaintiff Howard filed a Motion to Amend the Complaint. In this opinion, t he

Court addresses all pending motions.

5 The Sin gle

- Subject Provision provides that “ [n]o bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title.” Del. Const. art. II, § 16.

6 Compl. ¶ 22.Hall, et al. v. Coupe, et al.

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II. ANALYSIS

A. Rule 12(b)( 1 ) and 12(b)(6) Standard of Review

When considering a motion to dismiss under Court of Chancery

Rule 12(b)(1), th e Court ’s first task, when appropriate, is to assess whether the

fundamental predicates to subject matter jurisdiction exist, including the plaintiff’s

standing to pursue the claims

. 7 The Court then turns its focus to the “nature of the

wrong alleged ” to determine whether Chancery’s limited jurisdiction has been

invoked. 8 The plaintiff “bears the burden of establishing this Court’s jurisdiction,”

and when determining whether that burden has been met, the Court may consider

the pleadings and matters “ext r insic to th e pleadings.” 9

When considering whether a plaintiff’s pleadi ng states a viable claim for

relief under Court of Chancery Rule 12(b)(6)
, the Court will accept as true all well

pled factual allegations and draw reasonable inferences in the plaintiff’s favor. 10

7 See Dover Hi storical Soc. v. City of Dover Planning Comm’n , 838 A.2d 1103, 1110 (Del. 2003)

. 8 McMahon v. New Castle Assocs ., 532 A.2d 601, 603 (Del. Ch. 1987).

9 Pitts v. City of Wilmington , 2009 WL 1204492, at *5 (Del. Ch. Apr. 27, 2009).

10 Calesa Assoc s

. , L.P. v. Am. Capital, Ltd. , 2016 WL 770251, at *8 (Del. Ch. Feb. 29, 2016).Hall, et al. v. Coupe, et al.

C.A. No. 10307

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The Court will not, however, accept conclusory allegations “unsupported by

specific facts” or draw unreasonable inferences from the Complaint. 11 Dismissal is

appropriate only where the Court determines “with reasonable certainty that the

plaintiff would not be entitled to relief under any set of facts susceptible of

proof.” 12

The Court will view pleadings filed by pro se litigants with forgiving eyes.

Even so, proceeding pro se will not relieve Plaintiffs of their obligation to “allege

sufficient facts to state a plausible claim for relief” 13 or “to present and support

cogent arguments warranting the relief sought.” 14

B. The Comp laint Fails to Allege an Injury

- in

- Fact Sufficient to Confer Standing

To invoke this Court’s jurisdiction, the Plaintiff must establish the elements

of standing : ( 1 ) an injury

- in

- fact, ( 2 ) a causal connection between the injury and

11 Nemec v. Shrader , 991 A.2d 1120, 1125 (Del. 2010) (internal quotation marks omitted).

12 Id

. ; Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC , 27 A.3d 531, 535 (Del. 2011) (the Court will deny a motion to dismiss “unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances”).

13 Walker v. City of Wilmington , 2014 WL 4407977, at *9 (Del. Ch. Sept. 5, 2014).

14 Kelly v. Fuqi Int’l, Inc. , 2013 WL 135666, at *6 (Del. Ch. Jan. 2, 2013).Hall, et al. v. Coupe, et al.

C.A. No. 10307

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the allegedly wrongful conduct, and ( 3 ) that a decision favoring the plaintiff is

likely to redress the injury. 15 W hen pleading an injury

- in

- fact
, “general

allegations

. . . are sufficie nt to withstand a motion to dismiss because it is

‘presume[d] that general allegations embrace those specific facts that are necessary

to support the claim.’” 16 Such “general allegations,” however, must support a

reasonable inference of some “concrete and actual invasion of a legally protected

interest[].” 17

S tanding is a threshold jurisdictional requirement. 18 Before the Court may

consider the merits of Plaintiffs’ claim that Sections 4322(c) & (d) are

unconstitutional, therefore, it first must determine whether Plaintiffs have pled

15 Reeder v. Wagner , 974 A.2d 858 (Del. 2009) (TABLE).

16 Dover Historical Soc.
, 838 A.2d at 1110 (alteration in original) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992)).

17 Reeder , 974 A.2 d 858.

18 Dover Historical Soc. , 838 A.2d at 1110 (“Standing is a threshold question that must be answered by a court affirmatively to ensure that the litigation before the tribunal is a ‘case or controversy’ that is appropriate for the exercise of the cour t’s judicial powers.” (citations omitted) )

.Hall, et al. v. Coupe, et al.

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facts from which it may reasonably be infer red that they have standing to bring

their claims. 19

Plaintiffs do not allege that they have been denied access to any DOC policy

or procedure during their term of confinement. 20 Rather, t he sole allegation of

harm in the C omplaint is that DOC ’s authority to deny inmates access to DOC

policies and procedures , whether exercised or not, “deprives both the inmate

population and the general population of the procedural protections and safeguards

required to assure no abuse of authority is carried out with the taxpayers [sic]

dollars. ” 21 According to Plaintiffs, the denial of access to DOC policies and

19 Reeder , 974 A.2d 8 58 (the burden of pleading the elements of standing rests with the party seeking to invoke the court’s jurisdiction). See also State ex rel. Gebelein v. Killen
, 454 A.2d 737, 752 (Del. 1982) (“[C]ourts will usually decline to reach a constitutional question if a decision can be reached on other grounds.”).

20 In their response to the Motion to Dismiss and Cross Motion for Summary Judgment, Plaintiffs allege , without details, that Mr. Howard has sought and has been denied access to DOC facility

- specific policies relating to
, inter alia , inmate classification, good time credit, work release and religious programming. As a general rule, t he Court will not allow factual allegations raised for the first time in response to a motion to dismis s to substitute for well

- pled facts in a complaint. In re Gen. Motors (Hughes) S’holder Litig.

, 897 A.2d 162, 168 (Del. 2006) . Even if the Court looked past Plaintiffs’ violation of the general rule
, however, f

or the reasons explained below, Plaintiffs’ vague allegations of denied access to DOC internal procedures fail to satisfy their burden to allege injury in fact.

21 Compl. ¶ 17.Hall, et al. v. Coupe, et al.

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procedures violates the requirement in 11 Del. C. § 6517 (“Section 651 7”) that the

Commissioner of the DOC “[p]romulgat[e] rules and regulations to carry out the

Commissioner’s duties and operate the [DOC] .” This violation, Plaintiffs con tend
,

constitutes a violation of the non

- delegation doctrine embodied within Delaware’s

Constitution. 22

Plaintiffs read too much into Section 6517. As Plaintiffs correctly observe,

Section 6517 generally states that the “duties and responsibilities” of the

Commissioner of the DOC include “promulgat ing rules and regulations

. ” But this

general assignment of rulemaking responsibility is a far cry from a statutory

mandate that the Commissioner must provide inmates access to the DOC internal

“policies and procedures” identified in Sections 4322(c) & (d). The two statutes,

by thei r express terms, concern two different founts of information. Section 6517

addresses DOC “rules and regulations” regarding the core functions of the

Commissioner and the DOC 23 ; Sections 4322(c) & (d) , on the other hand, address

22 Id. ¶ 14. See Del. Const. art. II, § 1

. 23 Rule Definition , DICTIONARY.COM, http://www.dictionary.com/browse/rule (last visited May 23, 2016) (“rule”: “a principle or regulation governing conduct”); Regulation Definition , DICTIONARY.COM, http://www.dictionary.com/browse/regulation (lastHall, et al. v. Coupe, et al.

C.A. No. 10307

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DOC institutional “policies and procedures.” 24 Nothing in these statutes suggest s
that the Commissioner’s duty to promulgate certain “rules and regulations” can be

contorted into a statutory mandate that the DOC turnover its internal operating

“policies and procedures” to inmates incarcerated within DOC facilities. 25 Th is

reading of Sections 4322(c) & (d) is entirely consistent with Delaware’s

Administrative Procedures Act in which the General Assembly expressly

authorizes State agencies to “[d]ecline to make available [to the publ ic] documents

and other materials which [r]elate solely to the agency’s internal procedural or

personnel practices .” 26

visited May 23, 2016) (“regulation ”: “ a law, rule, or other order prescribed by authority,

e specially to regulate co nduct ”)

. 24 Policy Definition , DICTIONARY.COM, http://www.dictionary.com/browse/policy (last visited May 23, 2016) (“policy”: “a definite course of action adopted for the sake of expediency”); Procedure Definition , DICTIONARY.COM, http://www.dictionary.com/browse/procedure (last visited May 23, 2016) (“procedure”: “a manner of proceeding in any action or process”).

25 See Sharif v. Dillman , 1988 WL 7386, at *2 (Del. Ch. Feb. 2, 1988) (holding that inmates do not possess a right to DOC policies and procedures “simply because [such] administrative rules have been promulg a ted”), aff’d , 549 A.2d 699 (Del. 1988)

. 26 See 29 Del. C. § 10112(b)(4) ; Jackson v. Danberg , 2008 WL 1850585, at * 3 (Del. Super. Apr. 25, 2008).Hall, et al. v. Coupe, et al.

C.A. No. 10307

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Moreover, it is difficult to discern how a statute that prevents the DOC from

providing inmates access to policies and procedures tha t offer them no substantive

rights

— such as policies regarding security classification s , housing or internal DOC

programs

— could possibly form the basis of a legally cognizable injury to any

inmate or to the public at large. 27 At best, the policies and procedures the Plaintiffs

seek access to would be informational. Once possessed they could do nothing

constructive with them.

Because the Complaint does not allege a legally protected interest affected

by, or an injury

- in

- fac t caused by
, Section s 4322(c) & (d) , Plaintiffs have not

27 See Wilson v. Taylor , 466 F. Supp.2d 567, 571

– 72 (D. Del. 2006) (holding that there is “no constitutionally protected liberty interest in a prisoner’s security classi fication,” housing, employment or other specific rehabilitation opportunities) ; Ross v. Dep’t of Correction , 722 A.2d 813, 814 (Del. 1998) (acknowledging that the General Assembly’s adoption of Sections 4322(c) & (d) mooted prisoner

- petitioner’s appeal cha llenging the Superior Court’s denial of their access to the DOC’s operational and administrative policies); Jackson , 2008 WL 1850585, at *4 (holding that an inmate had no right to access the DOC’s internal lethal injection protocol)

, aff’d , 962 A.2d 256 (Del. 2008); Riley v. Taylor , 1999 WL 41279, at *3 (Del. Super. Jan. 6, 1999) (holding that Sections 4322(c) & (d) properly “preclude prisoner access to prison policies and procedures

. . . [relating] to the classification and general admini stration of prisoners, with the exception of rules pertaining to prisoner discipline” which are subject to disclosure and dissemination to inmates pursuant to 11 Del. C. § 6535).Hall, et al. v. Coupe, et al.

C.A. No. 10307

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satisfied their burden of establishing standing. 28 Defendants’ Motion to Dismiss

under Rule 12(b)(1) must be granted.

C. Section s 4322(c) & (d) Withstand Constitutional Scrutiny

Even if the Court were to excuse Plaintiffs’ failure to demonstrate standing,

which it cannot do, 29 the end result would not change. It is clear from the face of

t he Complaint that Plaintiffs’ constitutional challenges lack any merit. To recount,

Plaintiffs’ constitutional arguments are twofold: First, they assert that the

enactment of Sections 4322(c) & (d) “undermine [s] their constitutional and

administrative law rights” because “all state agencies created by the legislature” 30

must exercise their authority by “[p]romulgat ing rules and regulations,” 31 yet

Sections 4322(c) & (d) authorize the DOC to refrain from “promulgating” such

28 Wuillamey v. Werblin , 364 F. Supp. 237, 240 (D.N.J. 1973) (“For a plaintiff to possess standing, there must be claimed injury to a legally protected interest, i.e.
, ‘.

. . a wrong which directly results in the violation of a legal right.’” (alteration in original) (quoting Alabama Power Company v. Ickes , 302 U.S. 464, 479 (1938)) ).

29 Dover Historical Soc. , 838 A.2d at 1110

. 30 Pls.’ Resp. to Defs.’ Mot. to Dismiss and Cross Mot. for Summ. J. (“Pls.’ Reply Br.”) ¶ 6. Such an authorization, Plaintiffs continue, allows the DOC to operate “beyond legitimate bounds of its discretionary power within the meaning of the [n]on

- delegation doctrine.”

31 Section 6517.Hall, et al. v. Coupe, et al.

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information to the inmate population in violation of the non

- delegation doctrine

. Second, they argue that Sections 4322(c) & (d) violate the Single

- Subject

Provision of Delaware’s Constitution because “there is no natural and logical

connection between investigative [presentence] reports or records [( also mentioned

in Section 4322)], and the DOC” policies and p rocedures mentioned in

Sections 43 22(c) & (d). 32 Both challenges fail as a matter of law.

1. DOC Is Not Constitutionally Obliged to Promulgate Internal Policies and Procedures

The “basic purpose” of the non

- delegation doctrine is to prevent
“[a]dministrators [from having] unguided and uncontrolled discretionary power to

govern as they see fit.” 33 To that end, when presented with a non

- delegation

challenge, Courts focus on the “‘ totality of protections against [administrative]

arbitrariness,’ including ‘both substantive sta ndards and procedural safeguards,’

i.e. , due process or the law of the land, as the latter term appears in the Delaware

Constitution.” 34 Therefore, “while the existence of statutory standards is relevant

32 Pls.’ Reply Br. ¶ 27.

33 Atlantis I Condo. Ass’n v. Bryson , 403 A.2d 711, 713 (Del. 1979)

. 34 Cannon v. State , 807 A.2d 556, 564 (Del. 2002) (alteration in original).Hall, et al. v. Coupe, et al.

C.A. No. 10307

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in assessing the validity of a delegation of authori ty, the ‘totality of protections’,

including the existence of safeguards, for those whose interests may be affected is

determinative.” 35

Plaintiffs ’ “non

- delegation” challenge rests on the disquieting premise that

the DOC should be compelled to turn over to inmates all of its internal policies and

procedures including , presumably, those relating to the chain of command within

the DOC ranks, staffing protocols, security training protocols
, institutional

schemat ics and security response protocols. This premise provokes a visceral

response that any such declaration would be senseless and dangerous

. The Court

need not dwell on its visceral concerns
, however, because the Plaintiffs’ attack on

Sections 4322(c) & (d ) does not withstand basic statutory construction, is contrary

to settled precedent and offends sound public policy.

Plaint iffs ’ showcase argument is that Section 6517 and Sections 4322(c) &

(d) are in irreconcilable conflict . As discussed at length above, no such conflict

exist s

. T he General Assembly has expressly authorized State agencies to maintain

35 Atlantis I Condo. Ass’n , 403 A.2d at 713

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their internal policies and procedures as confidential

. 36 N othing in Section 6517 or
Sections 4322(c) & (d) conflict s with this general grant of authority or suggests
that the General Assembly has somehow improperly delegated “uncontrolled

power” to the DOC to “govern as [it] see[s] fit

. ” 37

Given that Sections 4322(c) & (d) ’s confidentiality provisions are entirely

consistent with the DOC’s statutory prerogative to “decline to make available” its

internal policies or procedures, 38 it is not surprising that Delaware courts have

consistently enforce d these provisions without hesitation when denying demands

for such info rmation from individuals incarcerated within DOC facilities. 39 These

decisions rest not only on fair readings of the applicable statutes, but also on sound

public policy . The unfettered distribution of internal DOC policies and procedures

to inmates or th e general public would create significant security concerns for

36 29 Del. C. § 10112(b)(4)

. 37 See Atlantis I Condo. Ass’n , 403 A.2d at 713. See also 29 Del. C. § 10112(b)(4) ; Jackson , 2008 WL 1850585, at * 3, *5

. 38 Jackson , 2008 WL 1850585, at * 3

. 39 See Ross , 722 A.2d at 814 ; Newsom v. Biden , 2011 WL 835135, at *9 (Del. Ch. Feb. 28, 2011) ; Laub v. Danberg , 2009 WL 1152167, at *3 (Del. Super. Mar. 4, 2009), aff’d

, 979 A.2d 1111 (Del. 2009); Jackson , 2008 WL 1850585, at *5; Riley , 1999 WL 41279, at *3

.Hall, et al. v. Coupe, et al.

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DOC employees, the inmates within DOC institutions and the public at large. As

the court observed in Ross :
any inmate intrusion into the operational or administrative concerns of DOC could constitute a threat to general security interests. The potential for disruption of the prison by inmates using this information is obvious. 40

Plaintiffs have failed to plead facts or offer any argument that would allow a

reasonable inference that Se ctions 4322(c) & (d) delegate authority to the DOC

that ought to be vested elsewhere or that the DOC otherwise should not possess.

Consequently, Plaintiffs’ non

- delegation challenge fails.

2. The Single

- Subject Provision Is Not Implicated By Section 4322

The Single

- Subject Provision is “intended to assure sufficient notice that

‘ legislation, the content of which was inadequately brought to the public [’s]

attention, or so

- called sleeper legislation ’ does not slip through the General

Assembly.” 41 The provision is “satisfied if the title of the bill is sufficiently

informative so as to put on notice parties interested in the general subject matter in

40 Ross v. Dep’t of Correction , 722 A. 2d 815, 821 (Del. Super. Feb. 27, 1998 ), aff’d in relevant part , 722 A.2d 813 (Del. 1998); accord Laub , 2009 WL 1152167, at *3.

41 Evans v. State , 872 A.2d 539, 551 (Del. 2005).Hall, et al. v. Coupe, et al.

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such manner as would lead them to inquire into it.” 42 It is violated only where “a

bill contains multipl e subjects or the title of the bill would ‘trap the unwary into

in action.’” 43

Here, Plaintiffs have failed to articulate any basis upon which the Court

could reasonably conceive that Sections 4322(c) & (d) “slip [ped] through the

General Assembly.” 44 To the contrary, the subject of Sections 4322(c) & (d)

— confidential treatment of DOC policies and procedures

— is directly related to the

title of the section: “Protection of records.” The mere fact that several categories

of records (all relating to thos e who have been convicted of criminal offenses in

Delaware ) are addressed in Sections 4322(c) & (d) cannot form the basis of a

constitutional challenge to the statute under the Single

- Subject Provision

.

D. Howard’s Motion to Amend Must be Denied as Futile

“A motion for leave to amend a complaint is futile [ and should therefore be

denied] where the amended complaint would be subject to dismissal under

42 Opinion of the Justices , 177 A.2d 205, 208 (Del. 1962).

43 Evans , 872 A.2d at 551.

44 Id.Hall, et al. v. Coupe, et al.

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Rule 12(b)(6) for failure to state a claim.” 45 Because Howard’s Motion to Amend

does not cure the Complaint’ s failure to plead sufficient injury to confer standing

or its failure to state a claim, it must be denied.

Howard seeks to amend the Complaint to a llege : (1) that he was prevented

from performing legal research relating to the claims set forth in the Com plaint in

violation of his right to adequate access to the courts ; and (2) that Sections 4322(c)

& (d) are an “absolute bar to discovery of relevant evidence sought in the

prosecution of non

- frivolous claims alleging serious violations of constitutional

rights

. ” 46 Neither proposed amendment fixes the Complaint’s failure to plead facts

from which the Court may draw a reasonable inference that Plaintiffs have suffered

an injury sufficient to confer standing or have stated viable constitutional

challenges to Sections 4322(c) & (d)

.
Howard’s first proposed amendment regarding the DOC’s denial of his

access to needed legal authority is superfluous and ignores the fundamental flaws

in his underlying claim. The fact that he was denied access to legal authority
,

45 Price v. E.I. DuPont de Nemours & Co. , 26 A.3d 162, 166, 170 (Del. 2011).

46 Mot. to Amend at 1

– 2.Hall, et al. v. Coupe, et al.

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namely , a decision from the Indiana Supreme Court that the JTVCC library had

previously downloaded but later erased, 47 does not re pair the failure of the

Complaint (with or without the Amendment) to plead any facts from which

Plaintiffs’ standing to pursue their claims may be inferred or from which a

constitutional defect in Sections 4322(c) & (d) can be discerned

. Since Howard

allegedly was denied access to legal authority in aid of researching a claim that is

not legally viable, his proposed amendment to this effect is futile.

Howard’s second argument is equally flawed. As this Court ha s now held,

t o the extent Howard claims that Sections 4322(c) & (d) improperly deny him

access to DOC policies and procedures, he has failed to plead an injury that would

be sufficient to confer standing

. 48 T o the extent Howard seeks redress for actual or

potential violations of internal DOC policies and procedures, he has identified

violations of policies and procedures that create mere “instrumental” rights , not

47 The case Howard seeks is Malott v. State , 485 N.E.2d 879, 884 (Ind. 1985) abrogated by Richardson v. State , 717 N.E.2d 32 (Ind. 1999). He reason s that because Whitfield v. State , 524 A.2d 13 (Del. 1987), a case not present in either party’s briefing, relies on Malott , access to Malott is necessary for “adequate access to the courts.” Mot. to Amend at 1.

48 See supra text accompanying note s 2 7

– 28

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“substantive rights ,” and he may not seek judicial intervention for any harm caused

by such violations. 49

III. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is granted

and Plaintiff’s Motions for Summary Judgment and to Amend are denied.

IT IS SO ORDERED.

Very truly yours,

/s/ Joseph R. Slights III

49 See Sharif

, 1988 WL 7386, at *2

. See also Wilson

, 466 F. Supp.2d at 571

– 72 (holding that inmates have no right to pursue claims based on violations of internal DOC policies and procedures, except those related to inmate grievance procedures which are made available to all inmates); McCoy v. Taylor , 1998 WL 842322, at *3 (Del. Ch . Nov. 12, 1998) (“This Court has specifically noted that it will not interfere with prison administrative issues because such matters are not readily susceptible to judicial oversight and fall within the auspices of the Executive branch of our State gover nment.”); Williamson v. Taylor , 1998 WL 324893, at *2 (Del. Ch. Mar. 13, 1998) (“[T]he Department of Corrections is part of the Executive Branch and courts should not interfere with the internal workings of Executive Branch agencies.”); Riley , 1999 WL 4127 9, at *3 (“Courts are generally very reluctant to interfere with the administration of prisons.”); State ex rel. Tate v. Cubbage , 210 A.2d 555, 564 (Del. Super. 1965) (“In .

. . penal institutions, it is necessary or assumed that those who are put in charg e have a given expertise. For that reason the judiciary is loathe to interfere with their decisions .

. . .”).