Opinion
C.A. No. 09C-12-031 (RBY).
Submitted: January 21, 2011.
Decided: April 26, 2011.
Upon Consideration of Defendants' Motion for Summary Judgment, GRANTED.
Joseph J. Longobardi, III, Esq., Wilmington, Delaware for the Plaintiff.
W. Michael Tupman, Esq., Department of Justice, Wilmington, Delaware for Defendants.
OPINION AND ORDER
The defendants ("the State") have filed the instant Motion for Summary Judgment, contending that the Plaintiff ("Charles Lovett") has failed to state a claim against the Delaware State Police; and, therefore, summary judgment would be appropriate. For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED.
FACTS
On December 17, 2007, Delaware State Police Corporal Andrew Pietlock was granted a search warrant for Shanun Handy, who then resided at 118 Unity Lane in Greenwood, Delaware. On December 20, 20 07, Corporal Pietlock and other members of the Delaware State Police executed the search warrant. Instead of searching 118 Unity Lane, the Police searched 162 Unity Lane, the residence of Charles Lovett.
During the execution of the search warrant, Lovett alleges that members of the Delaware State Police handcuffed him, pointed their loaded weapons in his direction, used racial epithets, and assaulted him. Lovett alleges that all of these acts were committed by other officers while in the presence of Corporal Pietlock.
On December 17, 2009, Lovett filed a complaint naming the Delaware State Police and Corporal Pietlock as defendants. On April 23, 2010, Lovett moved for leave to amend his complaint to add three additional Delaware State Troopers as defendants: Michael R. Berry, Charles C. Condon, and Brian J. Fitzpatrick. Lovett's motion was briefed and argued before Commissioner Freud on May 13, 2010. On August 25, 2010, Commissioner Freud granted Lovett's motion, finding that Lovett had met his burden with respect to Superior Court Civil Rule 15(c). The State filed its motion for reargument on August 31, 2010. The Court granted the State's motion for reargument, reversing the Commissioner's Order. Now before the Court is the defendant's motion for summary judgment.
STANDARD OF REVIEW
In a motion for summary judgment, the moving party bears the burden of proving "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is appropriate only when, after viewing all the evidence in a light most favorable to the nonmoving party, the Court finds no genuine issue of material fact. A genuine issue of material fact arises when "any rational trier of fact could infer that plaintiffs have proven the elements of prima facie case." If a defendant, as the moving party, can establish that there is no genuine issue of material fact, the defendant would be entitled to judgment as a matter of law; in which case the burden will shift to the plaintiff to show the existence of specific facts to support the plaintiff's claim.
SUP. CT . CIV. R. 56(e); see also Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Gill v. Nationwide Mut. Ins. Co., 1994 WL 150902, at *2 (Del. Super. Feb. 22, 1994).
Cerebus Intl. LTD. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1149 (Del. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)).
Anderson, 477 U.S. at 248.
DISCUSSION
The plaintiff filed a Complaint seeking damages against the State of Delaware, the Delaware State Police, and Corporal Andrew Pietlock. The defendant's summary judgment motion was argued on January 21, 2011. At the hearing, Lovett conceded that Officer Pietlock should be dismissed from the action. The issues before the Court on summary judgment are whether the section 1983 claim and the causes of action under the State Tort Claim Act brought against the Delaware State Police and the State of Delaware should proceed.The State contends that Lovett's claims against the State of Delaware and the Delaware State Police are barred by sovereign immunity. Lovett contends that genuine issues of material fact exist in that a jury could infer from the facts that the Delaware State Police perpetuated an intentional malicious assault; which is not protected by immunity granted under the State Tort Claim Act.
Section 1983 is an enabling statute that provides a remedy for the violation of federal constitutional or statutory rights. When a citizen has his federal constitutional or statutory rights violated by a state actor, § 1983 provides a private cause of action. Section 1983 states:
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
Thomas v. Bd. of Educ. of the Brandywine Sch. Dist., 2010 WL 5514367 (D.Del. 2010).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
A § 1983 claim has two essential elements: "(1) the conduct complained of must be committed by a person acting under color of state law"; and (2) this conduct must deprive a person of rights, privileges, or immunities secured by the constitution or laws of the United States."
Burton v. Kindle, 2010 WL 4487121, Slip Op. at *1 (3d Cir. 2010).
A defendant acts under color of state law when he, she or it exercises power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." To overcome an assertion of qualified immunity, the plaintiff must satisfy a two-pronged test. First, the Court must decide whether the facts, taken in the light most favorable to the plaintiff, establish a constitutional violation. Second, whether the constitutional right is clearly established. "The test for whether a constitutional right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
West v. Atkins, 487 U.S. 42, 49 (1988).
Couden v. Duff, 446 F.3d 483, 492 (3d Cir. 2006).
Id.
The relevant inquiry under a Fourth Amendment excessive force claim is whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting him. The proper application of the inquiry "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."
See Graham v. Connor, 490 U.S. 386, 397 (1989).
Id. at 396.
In order for the Court to undergo the above analysis, the section 1983 claim must be against a "person." The Delaware Supreme Court has held that "an action for money damages may not be maintained against a state or its agencies pursuant to 42 U.S.C § 1983 because neither a state nor its agencies are considered `persons' for the purpose of such an action."
State of Delaware Dep't of Health and Social Services v. Sheppard, 864 A.2d 929 (Del. 2004); see Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); see also Neeley v. Samis, 183 F. Supp. 2d 672, 678 (D. Del. 2002) (states are not persons for the purpose of a section 1983 claim).
Accordingly, attention is turned to the plaintiff's Section 1983 claims of an unreasonable search and seizure, as well as the use of excessive force during a search of Lovett's home. Lovett contends that his Fourth Amendment rights, as applied through the Fourteenth amendment, were violated by the Delaware State Police and the State of Delaware when police officers entered his home. The only remaining defendants in the case are the State of Delaware and the Delaware State Police. Lovett's contentions, and allegations in his complaint, focus on the individual officer's conduct. Counts one through six of Lovett's complaint are based on the intentional actions of the police officers who entered Lovett's home. As such, a section 1983 claim cannot proceed against the agencies.
B. Delaware Tort Claims Act
Lovet t's comp laint also asserts several claims against the State of Delaware and the Delaware State Police under state law. The Delaware Tort Claims Act provides sovereign immunity where the acts of the State and its agents were discretionary acts, done in good faith, in the course of performance of official duties and without gross and wanton negligence.
Hughes ex rel. Hughes v. Christiana School Dist., 950 A.2d 659, at *2 (Del. 2008)(TABLE); Del. Code Ann. tit. 10, § 4001 (1999); see Wiers v. Barnes, 925 F. Supp. 1079, 1092 (D. Del. 1996); Haskins v. Kay, 963 A.2d 138, at *2 (Del. 2008) (finding that a claim a probation officer stole thousands of dollars of collectibles and electronics was sufficient to survive summary dismissal).
In order to avoid immunity pursuant to 10 Del. C. § 4001, Lovett must show that the defendants engaged in: "(1) ministerial actions; (2) actions taken in bad faith and not in the public interest; or (3) actions of gross or wanton negligence." "Despite its seemingly broad language, both the Delaware Supreme Court and the federal courts have held that the State Tort Claims Act does not by itself waive sovereign immunity for state agencies whenever its three-part test is met."
Thomas, 2010 WL at *17 (If public officials are performing ministerial actions, they may be held accountable when their actions are merely negligent.).
Murphy v. Correctional Medical Services, Inc., 2005 WL 2155226 (Del. Super. Aug. 19, 2005).
"There can be no question that the doctrine of sovereign immunity provides that neither the State nor a State agency can be sued without its consent. The General Assembly, however can waive sovereign immunity by an Act that clearly evidences an intention to do so." "There must be statutory evidence that the State intended to waive its sovereign immunity for a particular agency." Where a State has not provided insurance coverage, even where a party alleges gross negligence, a waiver of sovereign immunity has not occurred. An intent to allow an agency to be sued can be evidenced by purchasing insurance that covers the type of negligence alleged in the case.
Pauley v. Reinoehl, 848 A.2d 569 (2004); see Del. Const. Art. I § 9; see also Wilmington Housing Authority v. Williamson, Del.Supr., 228 A.2d 782, 786 (1967); Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995).
Id.
State of Delaware Dep't of Health and Social Services v. Sheppard, 2004 WL 2850086 (Del. Supr.); Doe v. Cates, 499 A.2d 1175 (Del. 1985); Space Age Products, Inc. v. Gilliam, 488 F.Supp. 775 (D.Del. 1980).
Id.
The State Tort Claims Act is applicable only after an express intent to waive sovereign immunity has been established. 18 Del. C. § 6511 does not necessarily waive sovereign immunity under certain circumstances, specifically when there is no insurance in place to cover the alleged acts and or loss.
Id.; 18 Del. C. § 6511 states:
The defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance, and every commercially procured insurance contract shall contain a provision to this effect, where appropriate.
The only issue here is whether Delaware has waived its sovereign immunity under the Eleventh Amendment for the causes of action Lovett has filed. The only remaining claims against the Delaware State Police and the State of Delaware are the state law c l a i m s for assault, battery, wrongful imprisonment, and intentional infliction of emotional distress.
"Employees, but not the governmental entity itself, may be held personally liable for acts or omissions causing property damage, bodily injury, or death where their acts were performed with wanton negligence." (Emphasis added). Although, governmental entities, but not their employees, may be held liable for negligent acts which cause property damage, bodily injury or death pursuant to section 4012, "a contract to relieve a party from its intentional or willful acts is invariably unenforceable as being against clear public policy."
Sadler v. New Castle County, 524 A.2d 18 (1987); see § 4011(c)
James v. Getty Oil Co., 472 A.2d 33, 38 (Del. Super. 1983).
Lovett seeks to recover on the basis that police officers intentionally, and without his consent, caused him to be in fear of an immediate harmful or offensive contact. Lovett alleges in his complaint that the Delaware State Police improperly confined him against his will and without his consent, using excessive force, which was unreasonable under the circumstances. The only evidence of an intentional and malicious assault stems from Lovett's own uncorroborated testimony. His response does not present any cognizable basis for holding the State liable.
Lovett's opposition to the State's motion does not offer any statutory or legislative history that evidences an intent to waive sovereign immunity other than the plain text of section 4001. Delaware case law indicates that section 4001 alone is insufficient to support this type of action. There has not been an express waiver of sovereign immunity by the Delaware State Police or the State of Delaware under the facts of this case.
Sheppard, 864 A.2d 929 (Del. 2004); see also Sandt v. Delaware Solid Waste Authority, 640 A.2d 1030 (Del. 1994); Space Age Products v. Gilliam, 488 F. Supp. 775; Doe v. Cates, 499 A.2d 1175 (Del. 1985).
CONCLUSION
With respect to the Plain tiff's 1983 claim, the Defendant's motion for Summary Judgment is GRANTED, because, as described above, a section 1983 claim cannot proceed against the state agencies in this context. Because the Delaware State Police and the State of Delaware hold sovereign immunity as agencies of the State, and because Delaware has not waived that immunity, the Defendant's motion for Summary Judgment is GRANTED with respect to the remaining counts of the plaintiff's complaint. SO ORDERED.