Free Letter - District Court of Delaware - Delaware

Case 1:07-cv-00530-SLR-LPS Do . -· - t20 Filed 06/17/2008 Page 1 of 2
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JOSEPH R. BEDEN, lll szu NORTH FRENCH sraarzr Fax (302) sri-6499
ATTORNEY GENERAL WILMINGTON, DELAWARE mor rw {302) swrsrss .
June l7, 2008
_ Via CM/ECF Electronic Filing
The Honorable Leonard P. Stark §
United States District Court, District of Delaware j
U.S. Courthouse
844 King Street
Lockbox 26
Wilmington, DE l980l
Re: Frink v. MacLeish, et. al.
(LEA. N0. 07-530 SLR/LPS
Dear Judge Stark:
On May 21, 2008, Your Honor issued a letter and proposed Scheduling Order in .
the above matter. (D.l. 19). You requested that the parties respond by letter if there were
any objections to the proposed order. While State Defendants do not object to the I
scheduling dates per se, due to the procedural posture of this case, Defendants would
request that discovery and other pre-trial matters be stayed at this time, for the reasons set p
forth herein. -
Plaintiff s pro se excessive force complaint is brought against eight Delaware
State Police (DSP) defendants. Four of the Defendants (Hudak, Rizzo, Forester and
Green-—-the “Responding Troopers") were personally involved in Plaintiffs arrest, but
deny excessive force. These Defendants have filed an answer to the Complaint. (D.l. ·
18). I
The remaining four DSP Defendants are high-ranking administrators and I
supervisors who had no personal involvement in the arrest and alleged use of force g
(MacLeish, Seifert, Papili and McQueen). These "Supervisory Defendants” have filed a E _
Motion to Dismiss and Opening Brief in support thereof (D.l. 16-17). The Motion to
Dismiss is based upon immunity and the failure to allege a constitutional violation upon
which liability against the Moving Defendants could be premised. Both the Answer and _
the Motion to Dismiss were simultaneously filed on April 25, 2008. Plaintiff has not
tiled an Answering Brief in response to the Motion to Dismiss to date (nor taken any
other action with respect to the case). I

Case 1:07-cv-00530-SLR-LPS Document 20 Filed 06/17/2008 Page 2 of 2 I
The scope of discovery in this case will be dependent upon whether the claims _
against the Moving (Supervisory) Defendants survive the Motion to Dismiss. For I
example, Plaintiff asserts "policy" claims, supervisory liability and “conspiracy" with the
Responding Troopers, which would not be issues in the case, or subjects for discoveiy, if
the supervisory defendants are dismissed. Furthermore, the Moving Defendants assert
immunity from suit, and it is well settled that where immunity exists, it protects a party A
not only from damages but from being subject to any trial proceedings at all. See
Mitchell v. Forsjglg, 472 U.S. 5ll (1985). Accordingly, State Defendants respectfully
request that the scope of the case be determined by adjudication of the Motion to Dismiss
prior to the commencement of discovery, and assert that the Moving Defendants should l
not be subject to the time, expense and invasiveness of discovery while they are claiming
immunity from suit.
I
Accordingly, State Defendants request that discovery and other pre-trial matters `
be stayed until resolution of the motion to dismiss proceedings. If the Court requires a e I
formal motion to stay, I will promptly file one, however in light of the Court’s request I
(D.I. 19) that the parties state their position on the proposed Scheduling Order by letter, I
am proceeding in that format initially. I am available if the Court has any questions or l
wishes to address this issue further at this time.
Respectfully submitted, I
/s/ Staghrmi .1 Ballard __
Stephani J. Ballard |
Deputy Attorney General I `
cc: John O. Frink, Jr. (via U.S. mail) I
I
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Case 1:07-cv-00530-SLR-LPS

Document 20

Filed 06/17/2008

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Case 1:07-cv-00530-SLR-LPS

Document 20

Filed 06/17/2008

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