Free Response to Order - District Court of Delaware - Delaware

Case 1 :05-cv-00916-TNO Document 37 Filed 06/O9/2008 Page 1 of 4
YOUNG CONAWAY STARGATT & TAYLOR, LLP
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JOsY W. TNCERSOLL ’
June 9, 2008
BY E-FILE & FACSIMILE _
The Honorable Thomas N. O'Neill
Facsimile: (215) 580-2137
Re: Neuberger v. Gordon, et al., C.A. No. 05-916-TNO A
Dear Judge O'Neill:
Please accept this letter as the response of Defendants Christopher A. Coons,
David W. Singleton, and New Castle County (collectively, the "County Defendants"), tothe
Court’s Order of May 28, 2008. (D.I. 36). That Order instructed the parties to submit concurrent
letter briefs addressing "whether, for the purposes of qualified immunity, the acts of retaliation
alleged by plaintiff were within the scope of defendants Gordon and Freebery’s official authority
as County Executive and Chief Administrative Officer ("CAO"), respectively."1 (D.I. 36).
The qualified immunity doctrine was established to limit officials’ exposure to
litigation. The United States Supreme Court holds that it would be unfair to require public
officials to compensate plaintiffs for all constitutionalviolations, given the sometimes unclear
· · 2 . . .
nature of const1tut1onal law. Also, the Supreme Court concluded that public officials will be
overdeterred in the performance of their duties if they anticipate that every official action they
1 Pursuant to the CouIt’s Order, the County Defendants’ response takes as true the facts alleged in
Plaintiffs Complaint to the limited extent required by Rule 12(b)(6). Defendants do not concede the l
factual accuracy of any portion of Plaintiffs Complaint unless set forth otherwise in their Opening and
Reply Briefs In Support of Their Motions to Dismiss.
2 See Wood v. Strickland, 420 U.S. 308, 319-22 (1975).
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Case 1:05-cv—OO916-TNO Document 37 Filed 06/O9/2008 Page 2 of 4
YOUNG C ONAWAY STARGATT & TAYLOR, LLP
The Honorable Thomas N. O'Neill
June 9, 2008
Page 2
take may lead to a lawsuit.3 Finally, the Court believes that the litigation of constitutional torts
may impose substantial costs on individual officials and on the government itself, even when the
trial court ultimately finds that the officials are not liable.4 Moreover, the doctrine of qualified
immunity provides "immunity from suit,"·rather than a mere defense to liability, further
demonstrating the breath of the doctrine} °
To state a claim under § 1983 and, in turn, trigger the qualified immunity
analysis, a plaintiff must allege the violation of a constitutionally protected right and must show
that the alleged deprivation was committed by a person acting under color of state law.6 The
traditional definition of "acting under color of state law" requires that the defendant have
exercised power "possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law."7
To constitute state action, "the deprivation must be caused by the exercise of
some right or privilege created by the State . . . or by a person for whom the State is responsible,"
and "the party charged with the deprivation must be a person who may fairly be said to be a state
actor."8 A public employee acts under color of state law while acting in his official capacity or
while exercising his responsibilities pursuant to state law."9 It also is "firmly established" that a
defendant in a § 1983 suit acts under color of state law when he "abuses the position given to
him by the State."10 Therefore, an official’s actions were taken under the "color of state law,"
despite the allegation that his conduct was in violation of his duties or contrary to the
expectations of the office.1l Further, for the purposes of qualified immunity, the analysis is an
3 Harlow v. Fitzgerald, 457 U.S. 800, 806-07 (1982) (indicating that, without immunity, public officials
would be unprotected from undue interference and might not vigorously exercise their official
responsibilities).
4 g ic; at 814 (identifying litigation expenses and diversion of attention from important public concerns
as costs of denying immunity).
5 S; Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985).
6 Paratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474
U.S. 327, 330-31 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978).
7 West v. Atkins, 487 U.S. 42, 49 (1988) (guoting United States v. Classic, 313 U.S. 299, 326 (1941));
accord Monroe v. Pape, 365 U.S. 167, 187 (1961) (adopting Classic standard for purposes of § 1983)
(overruled in part on other grounds, Monell v. N.Y. Cig Dep’t of Social Servs., 436 U.S. 658, 695-701
(1978)).
8 1,1, at 50. 9
9 Ld, citin Parratt v. Taylor, 451 U.S.527, 535-36 (1981)). A
10 West, 487 U.S. at 50. ~
H E Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) ("Under color of state law means I
under ‘pretense’ of law.") (internal citations omitted). 2
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Case 1:05-cv—OO916-TNO Document 37 Filed 06/O9/2008 Page 3 of 4
YoUNo CoNA WAY STARGATT & TAYLOR, LLP r
The Honorable Thomas N. O'Neill _
June 9, 2008 ,
Page 3 l
objective one.12 The motivation of the state actors becomes irrelevant if it is determined that the
conduct was taken within the scope of their official authority.
"[S]tate employment is generally sufficient to render the defendant a state
actor."l3 Yet, as the United States Court of Appeals for the Third Circuit has explained, not all
acts of an on—duty state employee are state actions for purposes of § 1983.14 Although "state
employment is generally sufficient to render the defendant a state actor,°’ not all torts
"committed by state employees constitute state action, even if committed while on duty."15 A
state employee who pursues purely private motives and whose interaction with the plaintiff is
unconnected with the execution of his official duties is not acting under color of the law.16 In
contrast, off-duty officers "who flash a badge or otherwise purport to exercise official authority
. generally act under the color of law."17 .
Thus, as explained by the Third Circuit, the "essence of a Section 1983’s color of
law requirement is that the alleged offender, in committing the act complained of, abused a
power or position granted by the state."l8 Here, Plaintiff’ s Complaint alleges that Defendants
Gordon and Preebery (the "Individual Defendants"), retaliated against Plaintiff by (1) publishing
certain newspaper advertisements; and (2) communicating Plaintiff’ s medical information
without privilege to do so.l9 Both alleged acts are within the scope of their official authority as
County Executive and CAO, respectively.
’ The text of the ads provides information sufficient to conclude, for the purposes
of qualified immunity, that they were published by the Individual Defendants in their official
capacities. The first line of the ad reads, A
This dissemination of facts is issued by New Castle County, Office .
of the County Executive. The purpose is to correct the
r misrepresentations and sensationalism sought by a local attorney
who filed suit against New Castle County in July 2002 and now
faces motions of dismissal of this suit. To avoid further
12 g Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994).
13 Lugar v.,Edmondson Oil Co., 457 U.S. 922, 936 n.l8 (1982). (
I4 Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997).
15 Ig; (intemal citations omitted).
16 Q1; (gymg , 51 F.3d at 1150 ("An otherwise private tort is not committed under color of law
simply because the tortfeasor is an employee of the state.")).
17 Id, (citing Rivera v. La Porte, 896 F.2d 691, 696 (2d Cir. 1990)).
18 Q
*9 (111. 1). i
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Case 1:05-cv—OO916-TNC Document 37 Filed 06/O9/2008 Page 4 of 4
YoUNG CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Thomas N. O'Neill I ‘
June 9, 2008
Page 4 1
inaccuracies in reporting, the following facts are issued directly by
New Castle County.2° ~
Similarly, the last line of the ad states, "Official release from Office of County Executive. Space
paid for by Thomas P. Gordon and Sherry L. Freebery."21 The ads are limited to discussion of
the events of the Reyes case, brought against Gordon and Freebery in their official capacities
and against the County for acts allegedly committed by the Individual Defendants while
executing their official duties.22 For the purposes of qualified immunity, the alleged publication
of the newspaper ad was within the scope of the Individual Defendant official authority.
4 Similarly, Plaintiff` s allegations relating to the supposed dissemination of private
medical information demonstrate that any such dissemination was taken while acting within the
scope of their official authority. Plaintiff"s Complaint alleges that (l) Defendants came to learn
of the information as a result of their involvement in the Reyes Matter, in which the County and
the Individual Defendants had been sued; (2) the Individual Defendants discussed the
information during official County meetings; and (3) Defendants discussed the information with
persons "throughout County government? 3 The circumstances ofthe alleged disclosures
demonstrate, for the purposes of qualified immunity, that any such disclosures were made
pursuant to their official authorities.
The undersigned has communicated with Charles E. Butler, Esq., who serves as
counsel for the Individual Defendants. Mr. Butler has reviewed the foregoing and adopts it as
his clients’ position. Because he concurs with the position set forth above, the Individual
Defendants will not file a separate letter brief but will adopt this response as their own.
Respectfully submitted,
/s/ Barry M. Willoughby
Barry M. Willoughby, Esq. (No. l0l9)
BMW:sec l
cc: All Noticed Counsel (via CM/ECF Notification) .
20 (D.I. 26 at Exhibit 2, p.l). y
“ (111. 26 at Ex. 2). `
22 E (D.I. 27 at 13) (further explaining the background and context of the Reyes Matter).
23 (D.I. 1 at1l1l43, 49, 48). ` ‘ i
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