Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHEILA LAND, Individually and as Guardian of RAZHON ANDRE BANKS, a minor and Charles J. Durante, Esq., Executor of the Estate of Charles Andre Banks, Plaintiffs, v. THE CITY OF DOVER and JOHN DOES 1-5 In their Individual and Official capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07C-160-UNA JURY TRIAL OF SIX DEMANDED

DEFENDANTS' OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS COUNTS I, II AND VI OF PLAINTIFFS' COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

DANIEL A. GRIFFITH, ESQUIRE Delaware Bar I.D. No. 4209 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Attorney for Defendants, The City of Dover and John Does 1-5 Dated: April 20, 2007

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Table of Contents Page I. II. III. IV. A. STATEMENT OF THE NATURE OF THE CASE.............................................................4 SUMMARY OF THE ARGUMENT...................................................................................4 STATEMENT OF UNDISPUTED FACTS .....................................................................6 LEGAL ARGUMENT ....................................................................................................7 Since Plaintiffs Have Specifically Raised Claims Under The Fourth Amendment To The United States Constitution, Their More Generalized "Substantive Due Process" Claims Must Be Dismissed As A Matter Of Law.........................................................7 B. Since the City of Dover is Immune From Vicarious Liability Claims Pursuant to the Delaware County and Municipal Tort Claims Act, Plaintiffs' "Wrongful Death and Survival" Claim Must Be Dismissed..........................................................................11 V. CONCLUSION.................................................................................................................13

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Table of Authorities Cases Bright v. Westmoreland County, 443 F. 3d 276, 281 (3d Cir. 2006) ............................................8 Brown v. Pa. Dep't of Health Emergency NUD Servs. Training Inst., 318 F. 3d 473, 478 (3d Cir. 2003) ......................................................................................................................................8 Carr v. Town of Dewey Beach, 730 F. Supp. 591 (Del. 1990) ...................................................12 Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)................ 5, 10 Kaucher v. County of Bucks, 455 F. 3d 418 (3d Cir. 2006) .........................................................8 Kneipp v. Tedder, 95 F. 3d 1199, 1201 (3d Cir. 1996) ................................................................7 Sanford v. Styles, et al, 456 F. 3d 298, 304-305 (3d Cir. 2006)....................................................8 Sussex County v. Morris, 610 A2d. 1354, 1357 (Del. Supr. 1992).............................................11 Thomas v. Wilmington Police Department, C.A. No. 92C-03-244 (Del. Super 1994)................12 Ward v. Taylor, et al, 2006 U.S. Dis. LEXIS 14135 (Jordan, Kent A. U.S.D.J., decided March 30, 2006) (See Exhibit "B")........................................................................................... 5, 9, 10 Washington v. Wilmington Police Department,.........................................................................12 Washington v. Wilmington Police Department, 1995 Del. Super. LEXIS 472...........................12 Whitley v. Alberts, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986)......................10

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I.

STATEMENT OF THE NATURE OF THE CASE On the afternoon of April 17, 2005, Charles Andre Banks consumed a lethal dose of

illegal drugs, including PCP (Phencyclidine) and marijuana. Officers of the City of Dover Police Department arrested Mr. Banks after he had consumed these drugs. Mr. Banks died from respiratory distress brought on by his drug overdose after he was arrested. Mr. Banks' mother (Sheila Land), son, Razhon Banks and executor, Charles J. Durante, Esquire filed this action alleging that the Dover police officers' detention of Mr. Banks deprived him of necessary medical attention in violation of his rights under the Fourth Amendment to the United States Constitution. (See Counts III and IV of Plaintiffs' Complaint, attached as Exhibit "A"). Plaintiffs also contend that the City of Dover is liable for these Constitutional deprivations because the City had a "policy or custom that was a moving force behind the unconstitutional actions of its police officers". (See Exhibit "A", Count V). These claims (Counts III, IV and V) are not the subject of the instant motion. In addition to the Counts III, IV and V of Plaintiffs' Complaint, however, Plaintiffs have asserted claims of Substantive Due Process violations (Counts I and II) and a state law claim for wrongful death/survival (Count VI). Since these additional claims are not cognizable as a matter of law under the circumstances, Defendants hereby move to dismiss Counts I (state created danger doctrine) II (Substantive Due Process) and VI (wrongful death and survival) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. II. SUMMARY OF THE ARGUMENT Plaintiffs' Complaint is brought pursuant to 42 U.S.C. § 1983 and contends that the Dover police officers' arrest and detention of Charles Andre Banks on April 17, 2005 unreasonably deprived Mr. Banks of necessary medical attention and thereby violated his rights under the Fourth Amendment to the United States Constitution. (See Exhibit "A", Counts III and IV).

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Plaintiffs also contend that the City of Dover is liable for this Constitutional deprivation because the "City had a policy or custom that was a moving force behind the unconstitutional actions of its police officers". (Count V). In addition to these Counts, Plaintiffs have included in their Complaint claims for Substantive Due Process violations (Counts I and II). These claims are not cognizable as a matter of law where, as here, the Fourth Amendment is more specifically tailored to the alleged violation of Mr. Banks' rights. Ward v. Taylor, et al, 2006 U.S. Dis. LEXIS 14135 (Jordan, Kent A. U.S.D.J., decided March 30, 2006) (See Exhibit "B"). See also Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Since plaintiffs have included claims for the violation of Mr. Banks' rights under the Fourth Amendment to the United States Constitution, claims relating to "the more generalized notion of 'Substantive Due Process' must be the guide for analyzing these claims". Ward, supra, quoting Graham v. Connor, supra. In addition to their claims arising out of the United States Constitution, Plaintiffs' Complaint also includes a state law claim for wrongful death/survival (See Exhibit "A", Count VI). Defendant, City of Dover, is completely immune from liability for this claim pursuant to the Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4011(a). The "wrongful death/survival" claims are therefore improperly asserted as to the City of Dover. In sum, given their lack of a factual and/or legal basis, Counts I, II and VI of Plaintiffs' Complaint must be dismissed as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6).

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III.

STATEMENT OF UNDISPUTED FACTS 1. Plaintiffs' Complaint was filed on or about March 21, 2007. (See

Exhibit "A"). The following facts are based purely and exclusively upon the allegations set forth in Plaintiffs' Complaint. 2. On April 17, 2005, Charles Andre Banks, consumed an overdose

of illegal drugs, particularly PCP (Phencyclidine) and marijuana. (See Exhibit "A", paragraphs 10, 15). During that time, he was arrested and taken into custody by officers of the City of Dover Police Department. Mr. Banks ultimately died from respiratory distress caused by the overdose. (See Exhibit "A"). 3. In their Complaint, Plaintiffs contend that Mr. Banks' arrest and

detention violated his rights under the Fourth Amendment to the United States Constitution, specifically by unreasonably depriving him of required medical attention. (See Exhibit "A", Counts III and IV). Plaintiffs also contend that the City of Dover is liable for this Constitutional deprivation since the "City had a policy or custom that was a moving force behind the unconstitutional actions of its police officers". 4. In addition to asserting claims under the Fourth Amendment and

alleging municipal liability under 42 U.S.C. § 1983, Plaintiffs have also asserted more generalized claims of "Substantive Due Process" violations (Exhibit "A", Counts I and II) and a state law claim for wrongful death/survival against the City of Dover (Exhibit "A", Count VI). Defendants move to dismiss these latter

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claims (Counts I, II and VI) for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). IV. LEGAL ARGUMENT A. Since Plaintiffs Have Specifically Raised Claims Under The Fourth Amendment To The United States Constitution, Their More Generalized "Substantive Due Process" Claims Must Be Dismissed As A Matter Of Law.

Plaintiffs have specifically alleged that the Defendants' arrest and detention of Mr. Banks violated his rights under the Fourth Amendment to the United States Constitution: COUNT III ­ FOURTH AMENDMENT ­ EXCESSIVE FORCE 29. Defendants' violated Mr. Banks' rights under the Fourth Amendment to the United States Constitution...by using excessive force under the totality of the circumstances... COUNT IV ­ FOURTH AMENDMENT ­ UNREASONABLE SEIZURE 34. Defendants' subjected Mr. Banks to unreasonable seizure in violation of his rights under the Fourth Amendment to the United States Constitution... by lacking probable cause and by lacking exigent circumstances. (See Exhibit "A", Counts III and IV). In addition to these specific Fourth Amendment claims, Plaintiffs have asserted claims for "Substantive Due Process" violations under the Fourteenth Amendment to the United States Constitution styled as "State Created Danger Doctrine" and "Substantive Due Process and Liberty Interests" claims. (See Exhibit "A", Counts I and II). Given their assertion of specific Fourth Amendment claims, Plaintiffs cannot also proceed on more general claims of Substantive Due Process violations under the Fourteenth Amendment. In Kneipp v. Tedder, 95 F. 3d 1199, 1201 (3d Cir. 1996), the United States Court of Appeals for the Third Circuit first adopted the "State Created Danger Theory" as a mechanism by

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which plaintiffs may establish Constitutional violations under 42 U.S.C. § 1983. The Court held that liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to Substantive Due Process. Id. at 1205; see also Brown v. Pa. Dep't of Health Emergency NUD Servs. Training Inst., 318 F. 3d 473, 478 (3d Cir. 2003). To prevail on a State-Created Danger claim in the Third Circuit, a plaintiff must prove the following four (4) elements: 1. 2. conscience; 3. A relationship between the state and the plaintiff existed such that The harm ultimately caused was foreseeable and fairly direct; The state actor acted with a degree of culpability that shocks the

the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and 4. The state actor affirmatively used his or her authority in a way that

created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Sanford v. Styles, et al, 456 F. 3d 298, 304-305 (3d Cir. 2006), citing Bright v. Westmoreland County, 443 F. 3d 276, 281 (3d Cir. 2006). The "state created danger" doctrine is essentially a claim that the defendants allegedly violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See, Sanford v. Styles, et al, supra; Kaucher v. County of Bucks, 455 F. 3d 418 (3d Cir. 2006).

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However, where, as here, a claimant asserts a specific claim under the Fourth Amendment to the United States Constitution, additional, generalized claims under the Substantive Due Process Clause of the Fourteenth Amendment are inappropriate. Ward v. Taylor, supra. The Opinion of the Honorable Kent A. Jordan, U.S.D.J. in the Ward case is dispositive of plaintiffs' Substantive Due Process/Fourteenth Amendment claims (Counts I and II). In Ward, plaintiff was an inmate at the Delaware Correctional Center ("DCC") who was attacked and severely beaten by another inmate. Ward alleged that the defendants (the State of Delaware and its employees) violated his Eighth Amendment right to be free from cruel and unusual punishment. He also asserted that the state violated his Substantive Due Process rights under the Fourteenth Amendment by creating an opportunity for danger that would otherwise not have existed (i.e., a "State Created Danger" claim). (See Exhibit "B"). In reviewing the manner in which the United States Supreme Court has addressed claimants' assertions of both specific Constitutional violations and more generalized Fourteenth Amendment violations, Judge Jordan observed: D. Ward's Substantive Due Process Claim Asserting a State Created Danger. Finally, Defendants move to dismiss Ward's claim that the State violated his Substantive Due Process rights. Ward alleges that the Defendants, by acting with willful disregard for his safety, created an opportunity for danger that otherwise would not have existed and thus acted in a manner shocking to the conscience and violating the Due Process Clause of the Fourteenth Amendment. (citations omitted). The Defendants challenge this claim by correctly asserting that Ward cannot rely on Substantive Due Process rights when the Eighth Amendment is more specifically tailored to the alleged violations of his rights. (citations omitted). (emphasis added). (See Exhibit "B", p. 8-9).

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Judge Jordan then noted the United States Supreme Court's support for this conclusion: The Supreme Court has held that when there is an "explicit textual source of Constitutional protection" against physically intrusive governmental conduct alleged by a plaintiff, "that Amendment, not the more generalized notion of 'Substantive Due Process' must be the guide for analyzing these claims". See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (holding that claim of excessive force used by officers in making arrests must be brought under more directly applicable Fourth Amendment and not Fourteenth Amendment): Whitley v. Alberts, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986) (holding that the "Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners"). Because Ward is a convicted inmate, the treatment he alleges must be challenged under the Eighth Amendment, and thus the Defendants' Motion to Dismiss the Substantive Due Process claim will be granted. (See Exhibit "B", p. 9). Here, the Fourth Amendment to the United States Constitution is an "explicit textual source of Constitutional protection" against physically intrusive governmental conduct alleged by the Plaintiff. Indeed plaintiffs have specifically cited to the Fourth Amendment in Counts III and IV (see Exhibit "A"). As such, "that Amendment, not the more generalized notion of 'Substantive Due Process', must be the guide for analyzing these claims". Ward, quoting Graham v. Connor, supra. For all of the foregoing reasons, it is respectfully requested that this Honorable Court dismiss Plaintiffs' Substantive Due Process claims (Counts I and II) pursuant to Fed. R. Civ. P. 12(b)(6).

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B.

Since the City of Dover is Immune From Vicarious Liability Claims Pursuant to the Delaware County and Municipal Tort Claims Act, Plaintiffs' "Wrongful Death and Survival" Claim Must Be Dismissed.

Under the County and Municipal Tort Claims Act (hereinafter "Tort Claims Act"), a governmental entity is generally immune from liability for its tortious acts or omissions. 10 Del. C. § 4011 (a) of the Tort Claims Act reads, in pertinent part, "except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages...". 10 Del. C. § 4011 (b) enumerates six (6) examples of the range of activities for which local governmental entities are immune. The statute provides that this list is inclusive (i.e., "...examples and should not be interpreted to limit the general immunity provided by the section") rather than exclusive. In Del. C. § 4012, the Tort Claims Act provides three (3) exceptions to this broad grant of immunity. The activities enumerated in § 4012 are an inclusive list and are the only activities to which municipal liability is waived. Sussex County v. Morris, 610 A2d. 1354, 1357 (Del. Supr. 1992). Inasmuch as these exceptions relate to matters such as motor vehicles (exception number 1), construction of buildings (exception number 2) and environmental matters (exception number 3), there can be no reasonable argument that they apply here. Since none of the exceptions listed in Del. C. § 4012 apply, the City of Dover is immune from claims arising under state law (such as Plaintiffs' claim for wrongful death/survival) pursuant to 10 Del. C. § 4011. In fact, the City of Dover's immunity under the Tort Claims Act for plaintiffs' state law wrongful death/survival claim is evidenced not only by the plain and unambiguous terms of the statute, but also by case law which has addressed the issue under circumstances similar to the instant matter.

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In Carr v. Town of Dewey Beach, 730 F. Supp. 591 (Del. 1990), this Court found that the Tort Claims Act was applicable to plaintiffs' state law claims for malicious prosecution, abuse of process, false arrest and intentional infliction of emotional distress. In Thomas v. Wilmington Police Department, C.A. No. 92C-03-244 (Del. Super 1994) (referenced in Washington v. Wilmington Police Department, 1995 Del. Super. LEXIS 472 (decided September 18, 1995) (Exhibit "C"), plaintiff asserted state law claims for false arrest, false imprisonment and invasion of privacy following his arrest on an erroneous warrant. The Superior Court of Delaware held that the Tort Claims Act precluded plaintiff's claims as she could not show that any exception listed in § 4012 was applicable to her case. In Washington v. Wilmington Police Department, supra, the Superior Court of Delaware more squarely addressed the potential liability of a governmental entity for the actions of its officers for state law claims under the Tort Claims Act. In Washington, officers of the City of Wilmington Police Department received a report of a woman with a gun in an area where plaintiff was walking. Ms. Washington claimed that an officer of the Department stopped her, yelled at her and forcibly pushed her against the wall, ultimately causing her suffer a stroke. Like plaintiffs' wrongful death/survival claim in this case (Count VI), Ms. Washington's Complaint alleged a variety of state law claims, including false arrest and false imprisonment. In analyzing the applicability of the immunities available to the Department under the Tort Claims Act, the Superior Court of Delaware concluded: The Court is persuaded that the City of Wilmington enjoys municipal immunity from tortious acts of (the officer). § 4011 is expansive in scope and covers "any and all tort claims". Conversely, the exceptions are narrowly drawn and are clearly inapplicable to the case at hand. There is no statutory exception for those tort claims involving "excessive force". Furthermore, there is no statutory exception for those claims based on the principles

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of respondeat superior. In fact, § 4011 (c)...expressly separates the tortious acts of employees of the municipality from the municipality itself. Furthermore, a municipality is an entity that can only act through the actions of its employees and agents. If it could be held liable for the acts of its employees under respondeat superior, the Tort Claims Act would be rendered meaningless. (Plaintiff) cannot point to a statutory exception enumerated in § 4012, therefore summary judgment is granted for the City of Wilmington. (See Exhibit "C", p. 6). Obviously, with respect to Plaintiffs' state law claim for "wrongful death/survival", plaintiffs can only predicate this claim against the City of Dover on the City of Dover's alleged liability for the actions of its officers. Plaintiffs contend that the City is liable on the theory respondeat superior for the conduct of its officers. However, both the language of the Tort Claims Act and the case law applying the Tort Claims Act to the circumstances of this type of case makes clear that the City of Dover enjoys absolute immunity from the "wrongful death/survival" claim set forth in Plaintiffs' Complaint at Count VI. As a consequence, Count VI of Plaintiffs' Complaint must be dismissed as a matter of law. V. CONCLUSION For all of the foregoing reasons, it is respectfully requested that this Honorable Court dismiss Counts I, II and VI of Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

/s/ Daniel A. Griffith, Esquire DE ID 4209 DANIEL A. GRIFFITH, ESQUIRE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHEILA LAND, Individually and as Guardian of RAZHON ANDRE BANKS, a minor and Charles J. Durante, Esq., Executor of the Estate of Charles Andre Banks, Plaintiffs, v. THE CITY OF DOVER and JOHN DOES 1-5 In their Individual and Official capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07C-160-UNA JURY TRIAL OF SIX DEMANDED

ORDER This matter having been brought before the Court by Daniel A. Griffith, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for the Defendants; and the Court having considered the moving papers and any opposition filed thereto; and having heard the arguments of counsel; and for other and further good cause shown; It is on this day of , 2007, hereby ORDERED and

ADJUDGED that Counts I, II and VI of Plaintiffs' Complaint be and hereby are DISMISSED pursuant to Fed. R. Civ. P. 12 (b)(6) for failure to state a claim upon which relief can be granted.

J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHEILA LAND, Individually and as Guardian of RAZHON ANDRE BANKS, a minor and Charles J. Durante, Esq., Executor of the Estate of Charles Andre Banks, Plaintiffs, v. THE CITY OF DOVER and JOHN DOES 1-5 In their Individual and Official capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07C-160-UNA JURY TRIAL OF SIX DEMANDED

CERTIFICATE OF SERVICE I, Daniel A. Griffith, Esquire hereby certify that on the date indicated below a true and correct copy of Defendants' Notice of Motion to Dismiss Counts I, II and VI of Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6), Opening Brief in support of the Motion, and proposed Order were forwarded to the below named addressee via electronic filing: Richard R. Wier, Jr., Esquire Richard R. Wier, Jr., P.A. Two Mill Road Suite 200 Wilmington, DE 19806 Attorney for Plaintiffs MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/ Daniel A. Griffith, Esquire DE ID 4209 DANIEL A. GRIFFITH, ESQUIRE Delaware Bar I.D. No. 4209 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Attorney for Defendants, The City of Dover and John Does 1-5

Dated: April 20, 2007