Opinion
C.A. No. 08C-03-038 CLS.
Submitted: February 1, 2011.
Decided: May 25, 2011.
On the State Defendants' Motion to Dismiss.
GRANTED in part and DENIED in part.On Plaintiff's Motion to Amend Complaint. DENIED.
Beverly L. Bove, Esq., Vincent J. X. Hedrick, II, Esq., Wilmington, DE, Attorneys for Plaintiff.
Judy O. Hodas, Esq., Linda M. Carmichael, Esq., Wilmington, DE, Attorneys for the State Defendants.
Brian Chapman, Esq., Wilmington, DE, Attorney for Defendant Bruckner.
ORDER
Introduction
Before the Court is the State Defendants' motion to dismiss. Plaintiff filed a response in opposition and, in the alternative, a motion to amend his complaint. The Court has reviewed the parties' submission. For the reasons that follow, the State Defendants' motion to dismiss is GRANTED in part and DENIED in part and the Plaintiff's motion to amend his complaint is DENIED.
Background
On or about February 21, 2007, Plaintiff William H. Malachi ("Plaintiff") alleges Defendants Stephan J. Bruckner ("Defendant Bruckner") and Daniel Sosa ("Defendant Sosa") assaulted him while he was an inmate at the Howard R. Young Correction Institution ("HRYCI"). Defendants Bruckner and Sosa were prison guards at HRYCI when the alleged assault occurred. The Plaintiff asserts he suffered serious injuries as a result of the alleged assault.In Count I of the complaint, the Plaintiff alleges Defendants Sosa and Bruckner committed assault and battery.
All references to the complaint are actually to the third amended complaint filed on August 14, 2009. D.I. 76.
Count II alleges Defendants Sosa and Bruckner used excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. The Plaintiff also alleges the conduct of Defendants Sosa and Bruckner was intentional, wanton, malicious, and oppressive. Plaintiff seeks punitive damages.
Count III of the complaint alleges Defendants Raphael Williams, Perry Phelps, Mark Emig, Jason McCreary, and David Williams (collectively "Individual State Defendants") failed to adequately train and educate Defendants Bruckner and Sosa, failed to discipline them, failed to supervise them, permitted conditions to exist that led to the alleged assault and battery. Plaintiff alleges they established customs, policies, practices and procedures which fail to safeguard the life, health and safety of inmates, resulting in cruel and usual punishment of inmates, and created injury to him. Plaintiff alleges violations of 42 U.S.C. § 1981 and the deprivations of his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, §§ 7 and 11 of the Delaware Constitution. Plaintiff also alleges the negligence of Defendants Bruckner and Sosa is imputed to the Individual State Defendants through the doctrine of respondeat superior.
Count IV alleges the Individual State Defendants violated the Plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. § 1983. Plaintiff alleges they were acting in their individual capacities and their conduct was intentional, wanton, malicious, and oppressive. Plaintiff seeks punitive damages.
Count V alleges Defendants Bruckner and Sosa conspired to violate the rights of the Plaintiff. He alleges they violated his rights under 42 U.S.C. § 1981, as well as under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, §§ 7 and 11 of the Delaware Constitution. In this count, the Plaintiff also alleges the Individual State Defendants violated 42 U.S.C. § 1981 and his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution, as well as Article I, §§ 7 and 11 of the Delaware Constitution. The Plaintiff also alleges Defendants Bruckner and Sosa violated 42 U.S.C. §§ 1985(3) and 1988.
Count VI alleges the actions of Defendants HRYCI, State of Delaware Department of Corrections ("DOC"), and/or the State of Delaware (collectively "Institution State Defendants") amounted to excessive force in violation of the Plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. § 1983. The Plaintiff alleges the Institution State Defendants are liable under respondeat superior for the actions of the Individual State Defendants.
In count VII, the Plaintiff states he suffered serious bodily injuries as a result of the alleged assault and battery. Plaintiff seeks special damages in the amount of $12, 412.43, as well as general, consequential, and punitive damages.
The Individual State Defendants and Institutional State Defendants (collectively "State Defendants") filed a motion to dismiss the complaint on May 19, 2010, pursuant to Super. Ct. Civ. R. 12(b)(6) and Defendant Bruckner's cross-claim for lack of service pursuant to Super. Ct. Civ. R. 4(j). Plaintiff's response in opposition to the motion to dismiss includes a motion to amend the current complaint, filed on January 28, 2011. If permitted, this would be Plaintiff's fourth amended complaint. His original complaint was filed on March 7, 2008. It was amended on September 5, 2008, July 24, 2009, and August 14, 2009.
Defendant Bruckner did not file a response to the State Defendants' motion to dismiss his cross-claim. Since it is unopposed, the motion to dismiss Defendant Bruckner's cross-claim is GRANTED.
As Counts I and II relate only to Defendants Bruckner and Sosa, who are not included in this motion to dismiss, their claims do not need to be addressed at this time. Count VII does not need to be addressed since it states the damages suffered by the Plaintiff and the relief sought.
Discussion
I. The State Defendants' Motion to Dismiss
A. Standard of Review
Superior Court Civil Rule 12(b)(6) allows a defendant to file a motion to dismiss for "failure to state a claim upon which relief can be granted." All the facts pled in the complaint are accepted as true. The motion will be granted "only where it appears with reasonable certainty that the plaintiff could not prove any set of facts that would entitle him to relief." "Conclusory allegations will not be accepted as true without specific supporting factual allegations."
Highland Capital Management, L.P. v. T.C. Group, LLC, 2006 WL 2128677, *2 (Del. Super. Ct.) ( citing Plant v. Catalytic Constr. Co., 287 A.2d 682, 686 (Del. Super. 1972), aff'd, 297 A.2d 37 (Del. 1972).
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998) ( citing Spence v. Funk, A.2d 967, 968 (Del. 1978)).
In re Santa Fe Pac. Corp. S'holder Litig., 669 A.2d 59, 65-66 (Del. 1995) (citations omitted).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." An allegation is well pled when it puts the opposing party on notice of the claim. "To show entitlement of relief as required in Rule 8(a), the complaint must aver either the necessary elements of a cause of action or facts which would entitle the plaintiff to relief under the theory alleged." The complaint cannot serve as a fishing expedition to see if a wrong has been committed. B. Claims Against The Individual State Defendants 1. Violations of the Civil Rights Act
Super. Ct. Civ. R. 8(a).
Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403, 406 (Del. 1995) (citation omitted).
Am. Ins. Co. v. Material Transit, Inc., 446 A.2d 1101, 1104 (Del. Super. Ct. 1982).
Watson v. Chevy Chase Bank, 2006 WL 1459777 (Del. Super. Ct.) (citation omitted).
Plaintiff alleges violations of 42 U.S.C. § 1981 in his complaint but failed to include it was based on race discrimination so it is dismissed. A complaint that adequately alleges a violation of 42 U.S.C. § 1981 will state the plaintiff is a member of a protected class, such as his race, the defendant intended to discriminate against plaintiff based on his race, and the discrimination interfered with the activity provided in § 1981. In his complaint, Plaintiff has not alleged he was treated differently because of his race. As a result of failing to allege race discrimination, allegations that the Individual State Defendants violated 42 U.S.C. § 1981 in Counts III and V are dismissed.
Tekstrom, Inc. v. Savla, 2006 WL 2338050 (Del. Super. Ct.) aff'd, 918 A.2d 1171 (Del. 2007).
The Individual State Defendants cannot be liable under respondeat superior for alleged violations of 42 U.S.C. § 1983. In his complaint, the Plaintiff alleges the actions of the Individual State Defendants amounted to excessive force, but the alleged actions are based on the theory of respondeat superior. As a result, the alleged violation of 42 U.S.C. § 1983 in Count IV is dismissed.
Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 691 (1978).
Complaint ¶ 37.
In his complaint, Plaintiff failed to allege the violation of 42 U.S.C. § 1985(3) was based on race so it is dismissed. To state a claim under 42 U.S.C. § 1985(3) Plaintiff must allege a conspiracy between two or more individuals. The alleged conspiracy must be motivated by racial animus. The United States Supreme Court has held "[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." In his complaint, Plaintiff has not alleged the conspiracy among the Individual State Defendants was based on his race. As a result, the 42 U.S.C. § 1985(3) claim in Count V is dismissed.
Matthews v. Int'l House of Pancakes, Inc., 597 F. Supp. 2d 663, 674 (E.D. La. 2009) ( citing Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994)).
Kush v. Rutledge, 460 U.S. 719, 726 (1983).
Id. ( citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)) (emphasis in original).
Plaintiff is unable to prove a set of facts entitling him to attorney or expert fees pursuant to 42 U.S.C. § 1988. A claim for attorney's fees under 42 U.S.C. § 1988 is predicated upon establishing a violation of 42 U.S.C. §§ 1981, 1983, or 1985. Expert fees may be awarded upon successfully proving a violation of § 1981. Since all of Plaintiff's claims brought under §§ 1981, 1983, and 1985 have been dismissed, Plaintiff cannot be awarded attorney or expert fees pursuant to § 1988. As a result, Plaintiff's claim of fees for civil rights violations in Count V is dismissed.
See 42 U.S.C. § 1988.
2. Violations of the Delaware Constitution
Plaintiff alleges violations of Art. I, §§ 7 and 11 of the Delaware Constitution. Section 7 provides a person shall not be deprived of life, liberty, or property "unless by the judgment of his peers or by the law of the land." The Due Process Clause in the Delaware Constitution is the same as that contained in the Fourteenth Amendment. Section 11 mandates "and in the construction of jails a proper regard shall be had to the health of prisoners." In its motion to dismiss the State Defendants allege they did not violate the Plaintiff's property rights and § 11 does not permit damages. The case cited by the State Defendants, Crescenzo v. New Castle County , dealt with a property owner claiming New Castle County exceeded the scope of their express easement constituting a taking of his property without compensation, in violation of Del. Const. art. I, § 8. While Plaintiff's complaint is not completely clear, he may be alleging a violation of his liberty interest in remaining safe and healthy. He may be able to prove a set of facts entitling him to relief if he is able to prove the Individual State Defendants violated his liberty interest without due process. Accordingly, the alleged violations of the Delaware Constitution are not dismissed. C. Claims Against The Institution State Defendants
Helman v. State, 784 A.2d 1058, 1070 (Del. 2001)
Motion to Dismiss ¶ 9.
1988 WL 67836 (Del. Super. Ct.).
His entire complaint is based on the alleged assault and battery that occurred while he was a prisoner at HRYCI.
W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).
The State Defendants have not challenged Plaintiff's federal constitutional claims. Therefore, they will not be addressed.
Plaintiff is unable to prove a set of facts that would entitle him to relief against the State Institution Defendants because they are immune from suit. The Eleventh Amendment prohibits suits against the individual states in federal courts. In Delaware, "[s]uits may be brought against the State, according to such regulations as shall be made by law." Unless explicitly waived by the General Assembly, sovereign immunity is an absolute bar to liability claims against the State. Plaintiff filed suit against the HRYCI, the State of Delaware Department of Corrections ("DOC"), a division of the State of Delaware, and the State of Delaware. Since sovereign immunity prohibits suits against the Institution State Defendants, Count VI is dismissed as it only raises claims against the State of Delaware, HRYCI, and DOC.
U.S. amend. XI.
Del. Const. art. I, § 9.
Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) ( citing Wilmington Housing Authority v. Williamson, 228 A.2d, 782, 786 (Del. 1697).
II. Plaintiff's Motion to Amend Complaint
Plaintiff is not permitted to amend his complaint because it will be his fourth amended complaint and eight months lapsed between learning of its deficiencies and filing the motion to amend. The Court will permit a party to amend a pleading when justice requires. An amendment may relate back to the original date of the pleading when the statute of limitations for the cause of action has not expired, the claim arose out of the same occurrence as the original pleading, or in the case of substituting a party, when the substituted party had notice of the proceeding and will not be prejudiced as a result of being named a defendant. Justice will not permit a motion to amend a pleading when the opposing party will be prejudiced or the delay in amendment was the result of inexcusable carelessness. Delay alone is insufficient to deny a motion to amend a pleading. However, repeated attempts at amendment and inexcusable delay are sufficient to deny a motion to amend.
Super. Ct. Civ. R. 15(a).
Super. Ct. Civ. R. 15(c).
Hess v. Carmine, 396 A.2d 173, 176 (Del. Super. Ct. 1978).
Bailey v. Crowson, 2004 WL 2419172 (Del. Super. Ct.) ( citing Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 265 (Del. 1993)).
Id.
Plaintiff delayed filing a motion to amend his complaint eight months after he received notice of its deficiencies and, if permitted, this would be Plaintiff's fourth amended complaint. After the cases were consolidated, Plaintiff filed an amended complaint on September 5, 2008. The State Defendants filed this motion to dismiss the complaint on May 19, 2010. The Plaintiff responded over eight months later, on January 28, 2011, at which time he included a motion to amend his current complaint. Numerous amendments have already been made to the original complaint filed on March 7, 2008. On September 5, 2008, this Court granted Plaintiff leave to amend his complaint to include the State Defendants. Since the State Defendants have been included in this suit, the complaint has been amended two additional times, on July 24, 2009 and August 14, 2009. If permitted, this would be the Plaintiff's fourth amended complaint, with over eight months passing since he learned of its deficiencies. The delay is not excusable and since the current complaint is Plaintiff's third amended complaint, another amended complaint will not be permitted.
Even if the delay was excusable, the proposed amended complaint is insufficient on its face. Even though an amended pleading should not be tested on a motion to amend, when it is insufficient on its face the motion to amend may be denied. Plaintiff seeks leave to amend his 42 U.S.C. § 1981 action in Count III to allege the conduct of the Individual State Defendants was based on his race. To successfully plead a § 1981 cause of action Plaintiff needs to allege that the Individual State Defendants intended to discriminate against him based on his race. Plaintiff does not allege the Individual State Defendants intended to discriminate against him, only that they did so indirectly through the doctrine of respondeat superior. His proposed amendment fails to allege the Individual State Defendants intended to discriminate against him based on his race. As a result, the proposed amended complaint is legally insufficient on its face so his motion to amend is denied.
Itek Corp. v. Chicago Aerial Indus., 257 A.2d 232, 233 (Del. Super. Ct. 1969), aff'd, 274 A.2d 141 (Del. 1971).
Tekstrom, Inc., 2006 WL 2338050, at *14 (Del. Super. Ct.).
Paragraph 34 of the Complaint states: "By virtue of the doctrine of Respondent Superior, the negligence of Defendants Sosa and Bruckner is imputed to Defendants R. Williams, Phelps, Emig, McCreary, and/or D. Williams."
Conclusion
Based on the forgoing, the Defendant's motion to dismiss the complaint is GRANTED in part and DENIED in part. Discovery was stayed pending the outcome of this motion to dismiss. The stay is hereby VACATED for the Individual State Defendants.IT IS SO ORDERED.