Opinion
No. 06C-01-338-JEB.
Submitted: June 8, 2007.
Decided: March 7, 2008.
Defendant's Motion to Dismiss. Motion Granted in Part, Denied in Part.
Gary W. Aber, Esquire, Wilmington, Delaware, Attorney for Plaintiffs.
Andrea J. Faroane, Esquire, Wilmington, Delaware, Attorney for Defendant.
OPINION
This is the Court's opinion granting in part and denying in part Defendant James Diana's motion to dismiss for failure to state a claim upon which relief can be granted. Super. Ct. Civ. R. 12(b)(6). The Complaint alleges that Defendant, who is an officer with the Wilmington Police Department, knowingly violated the rights of Plain tiffs Keith Brandon, Natasha Brandon and her three minor children under the Fourth, Fifth and Fourteenth Amendments. The Complaint is filed pursuant to 42 U.S.C. § 1983. To the extent that the Complaint seeks damages against Defendant in his official capacity, the motion is granted because Defendant, as a State employee, is immune from suit under § 1983. To the extent that the Complaint seeks damages against Defendant in his individual capacity, Plaintiffs' motion to dismiss is denied. Defendant's motion to dismiss the Amended Complaint is denied.
The alleged facts are as follows. On March 3, 2004, the Artisan's Bank located at 233 W. 9th Street, Wilmington, Delaware was robbed. The same day, the Delaware Department of Probation and Parole received information that Plaintiff Keith Brandon, a probationer, was suspected of being involved in the robbery. Brandon was detained and held by Probation. The probation officers learned that the suspect was clean-shaven, while Brandon had a full beard. On March 5, Defendant Diana showed a photo line-up, including Brandon, to certain probation officers. One or more of the officers told Defendant that Brandon did not fit the description of the robber or the picture taken by security camera at Artisan's Bank.
On March 5, Defendant submitted an Affidavit and Application for Search to a magistrate a Justice of the Peace Court. It is alleged that Defendant intentionally omitted from the Affidavit the fact that the probationer officer, after reviewing the photograph of the robber, stated that the robber did not resemble Brandon. It is further alleged that, based on the misleading affidavit, Defendant obtained a search warrant and Defendant went to Plaintiff's home at night-time, broke down two doors and accosted the sleeping residents, causing physical and emotional damage to all occupants.
Based on these alleged facts, Plaintiffs assert that they were subjected to an illegal search in violation of the Fourth, Fifth and Fourteenth Amendments and 42 U.S.C. § 1983. They seek an award of the cost of the action, reasonable attorney's fees, and punitive damages in an unspecified amount. Defendant has moved to dismiss on grounds of immunity from suit under 42 U.S.C. § 1983.
On a motion to dismiss for failure to state a claim, the motion will not be granted if a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. All well-pled allegations must be accepted as true.
Bissell v. Papastavros Assoc. Medical Imaging, 626 A.2d 856 (Del.Super.Ct. 1993).
Id.
Defendant argues that under 42 U.S.C. § 1983 he is entitled to qualified immunity from civil liability for damages because Plaintiffs cannot demonstrate that they were deprived of any constitutional right. Plaintiffs rely on the holding in Franks v. Delaware that a search warrant and its fruits are invalid if a party shows that the officer knowingly or with a reckless disregard for the truth made a false statement or omitted an exculpatory statement from the affidavit.
Qualified immunity means that a state official or employee acting in an official capacity does not constitute a person for purposes of § 1983 and is therefore immune from suit, but the same individual may not be immune when acting in his or her individual capacity. As stated previously, the motion to dismiss is granted as to Defendant acting in his official capacity. He is also immune from suit in his individual capacity unless Plaintiffs can show that they were in fact deprived of an actual constitutional right, and, if so, whether that the right was so clearly established at the time of the alleged violation that a reasonable police officer in the defendant's situation would have known that he violated that right. In this case, Plaintiffs have pled the violation of their Fourth Amendment right to be free from unreasonable searches, but the question of whether or not this right was in fact violated cannot be determined on a Motion to Dismiss. Nor can the question of what Defendant knew or s h o u ld h a v e k n o w n be resolved on a Motion Dismiss.
Servino v. The Medical Center of Delaware, Inc., 1997 WL 527979, at *4 (Del.Super.), (citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)).
Conn v. Gabbert, 526 U.S. 286 (1999); Servino v. The Medical Center of Delaware, Inc., 1997 WL 527979 (Del.Super.).
Id.
Defendant Diana's Motion to Dismiss is Granted in Part and Denied in Part.
Defendant argues that the amendments to the Complaint are barred by the two-year statute of limitations applicable to personal injury actions under Del. Code Ann. tit. 10, § 8119. The robbery and allegedly illegal search took place in March 2004, and the Amended Complaint was filed in May 2006. Defendant argues that under Rule 15(c)(2), the amendments do not relate back because they do not arise out of the "conduct, transaction or occurrence set forth in the original pleading." The Court finds that the Amended Complaint does relate back to the events beginning with the arrest of Keith Brandon by a probation officer, whose statements, one way or the other, impacted the challenged conduct of Defendant Diana. Defendant's motion to dismiss the Amended Complaint with prejudice is Denied .
It Is So ORDERED.