Romano v. Jennings

• Court: Superior Court of Delaware
• Decided: May 17, 2021
• Docket: N21M-02-150 JRJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARC ROMANO, ) ) Petitioner, ) ) v. ) C.A. No. N21M-02-150 JRJ ) KATHLEEN JENNINGS, ) ) Respondent. )

Date Submitted: May 14, 2021 Date Decided: May 17, 2021

ORDER

1. On March 1, 2021, Petitioner Marc Romano, a prisoner at the James T.

Vaughn Correctional Center (“JTVCC”), filed a pro se document titled “Petition for

a Writ of Mandamus/Motion to Compel/Rule to Show Cause for Serious Physical

Illness, Injury or Infirmity” (the “Petition”).1 In his Petition, Romano argues that

prison officials at the JTVCC have exhibited deliberate indifference in managing the

spread of COVID-19.2 Due to this alleged indifference, Romano asserts that he has

been exposed to a substantial risk of serious physical illness in violation of the Eighth

Amendment of the United States Constitution.3 Romano asks the Court for a writ of

mandamus compelling the Department of Correction (“DOC”) and the State of

1 Trans. ID. 66377365. 2 See generally id. 3 See id. at ¶ 19. Delaware “to show cause as to why he should not be released to a lower supervision

of custody to avert his inevitable COVID-19 infection.”4

2. On March 29, 2021, Respondent Kathleen Jennings filed the instant

Motion to Dismiss (the “Motion”).5 In her Motion, Jennings argues that Romano

cannot pursue a writ of mandamus until he shows that no adequate remedy is

available to him.6 Jennings contends that Romano cannot make that showing

because he could have pursued a remedy under 42 U.S.C. § 1983.7 Jennings further

argues that even if Romano’s Petition is properly before the Court, Romano “has not

established that he has any medical need that is being deliberately disregarded by

DOC prison officials.”8 For these reasons, Jennings asks the Court to dismiss

Romano’s Petition.9

3. On March 30, 2021, the Court sent a letter to Romano.10 In that letter,

the Court informed Romano that it had received Jennings’s Motion.11 The Court

provided Romano with a copy of the Motion and asked for Romano’s response by

4 Id. at ¶ 21. 5 Trans. ID. 66462951. 6 Id. at ¶ 10. 7 Id. 8 Id. at ¶ 11. 9 Id. at ¶ 16. 10 Trans. ID. 66467094. 11 Id. 2 April 30, 2021.12 Importantly, the Court stated that Romano’s failure to respond by

the deadline would “be deemed a lack of opposition to the motion.”13

4. On April 19, 2021, Jennings sent Romano notice that she would be

presenting her Motion the Court.14

5. On May 14, 2021, Jennings filed a letter with the Court in which she

noted that, as of that date, Romano had not filed his response.15 Because Romano

was required to file his response by April 30, 2021, Jennings asked the Court to grant

her Motion.16

6. The Court deems Jennings’s Motion unopposed. The Court made clear

that it would deem the Motion unopposed if Romano failed to respond by April 30,

2021. Despite adequate notice, Romano failed to meet that deadline. Accordingly,

the Court grants Jennings’s Motion.17

NOW, THEREFORE, IT IS HEREBY ORDERED that Kathleen

Jennings’s Motion to Dismiss is GRANTED.

12 Id. 13 Id. 14 See Trans. ID. 66527272. 15 Trans. ID. 66602410. 16 See id (asking the Court to “deny Petitioner’s Writ for failure to state a claim upon which relief can be granted”). 17 See generally Proctor v. Taylor, 2006 WL 1520085 (Del. Super. Ct. Jan. 18, 2006) (granting respondents’ motion to dismiss a petition for a writ of mandamus after deeming the motion unopposed due to petitioner’s failure to respond). 3 IT IS SO ORDERED.

Jan R. Jurden Jan R. Jurden, President Judge

Original to Prothonotary

cc: Marc Romano (SBI# 00442780) Anna E. Currier (DAG)