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McCaffrey v. City of Wilmington

Superior Court of Delaware, New Castle

June 26, 2013

MORGAN MCCAFFREY, Plaintiff,
v.
CITY OF WILMINGTON, PATROLMAN MICHAEL SPENCER, individually and in his capacity as an officer, WILMINGTON SERGEANT DONALD BLUESTEIN, individually and in his capacity as an officer, SERGEANT GERALD MURRAY, individually and in his capacity as an officer, CORPORAL RALPH SCHIFANO, individually and in his capacity as an officer, MASTER SERGEANT SHERRI TULL, individually and in her capacity as an officer, and CHIEF MICHAEL J. SZCZERBA, individually and in his capacity as an officer, Defendants

Submitted: May 29, 2013

Laura J. Simon, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, Attorney for Plaintiff Morgan McCaffrey.

Louis B. Ferrara, Esquire, Ferrara & Haley, Wilmington, Delaware, Attorney for Defendant Michael Spencer.

Daniel F. McAllister, Esquire, City of Wilmington Law Department, Wilmington, Delaware, Attorney for Defendants City of Wilmington, Donald Bluestein, Gerald Murray, Ralph Schifano, Sherri Tull and Michael J. Szczerba.

Eric M. Davis Judge, Superior Court.

Introduction

This is a personal injury and civil rights action brought by Plaintiff Morgan McCaffrey. Ms. McCaffrey seeks damages against Defendants City of Wilmington (the "City"), Patrolman Michael Spencer, Sergeant Donald Bluestein, Sergeant Gerald Murray, Corporal Ralph Schifano, Master Sergeant Sherri Tull, and Chief Michael Szczerba (collectively, "Defendants") arising from events surrounding a June 5, 2010 traffic accident. In addition to claims of negligence and recklessness against Officer Spencer, Ms. McCaffrey alleges that her constitutional rights to due process and equal protection were violated by Defendants as government actors on June 5, 2010, following a car accident she incurred with Officer Spencer while he was off-duty. Before the Court is a motion for summary judgment (the "Motion") filed by Defendants Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, Chief Szczerba and the City. For the reasons stated herein, the Motion is GRANTED IN PART and DENIED IN PART.

Procedural Background

Ms. McCaffrey filed her Complaint in this matter on January 19, 2012. Initially, Ms. McCaffrey asserted the following causes of action:

. Common law negligence and recklessness against Officer Spencer, the Wilmington Police Department (the "WPD") and the City (Count I);
. Civil rights violations under 42 U.S.C. § 1983 ("Section 1983") against Officer Spencer and the WPD (Count II);
. Civil rights violations under Section 1983 for the WPD's custom and policy of not enforcing the law with respect to its officers against the WPD, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano (Count III);
. Negligent and reckless hiring, retention and supervision against the City and the WPD (Count IV);
. Assault and battery against Officer Spencer (Count V); and
. Intentional infliction of emotional distress against Officer Spencer, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano (Count VI).

The City and the WPD moved to dismiss, in part, certain claims in the Complaint. On April 25, 2012, the Court dismissed Count I as to the City. In addition, the Court dismissed the WPD from the civil action as the WPD is not an independent entity subject to suit. On May 24, 2012, Ms. McCaffrey amended her Complaint. On June 5, 2012, Ms. McCaffrey further amended her Complaint (the "Second Amended Complaint") to add Master Sergeant Tull and Chief Szczerba as defendants.

On June 19, 2012, Defendants Sergeant Bluestein, Corporal Schifano, Sergeant Murray, Master Sergeant Tull, Chief Szczerba and the City moved to dismiss Counts V and VI as those counts related to them. The Court, on August 9, 2012, dismissed Counts V and VI of the Second Amended Complaint as those counts related to any defendant except Officer Spencer - Officer Spencer did not move or otherwise join the dismissal motion.

On October 9, 2012, Ms. McCaffrey moved for leave to amend the Second Amended Complaint. The Court denied the motion for leave to amend the Second Amended Complaint on November 19, 2012.

Certain discovery disputes subsequently arose among the parties. After considering certain legal arguments regarding discovery, the Court compelled the City to provide additional discovery by April 3, 2013. This discovery, for the most part, related to incidents involving WPD officers, since January 1, 2005 and June 6, 2006, similar to the ones involving Officer Spencer.

Presently, the following causes of action remain:

. Common law negligence and recklessness against Officer Spencer (Count I);
. Civil rights violations under 42 U.S.C. § 1983 against Officer Spencer, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull (Count II);
. Civil rights violations under 42 U.S.C. § 1983 for the WPD's custom and policy of not enforcing the law on its officers against the City, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, and Chief Michael Szczerba (Count III);
. Negligent and reckless hiring, retention and supervision against the City and Chief Michael Szczerba (Count IV);
. Assault and battery against Officer Spencer (Count V); and
. Intentional infliction of emotional distress against Officer Spencer (Count VI).

Before the Court is the Motion brought by the City, Chief Szczerba, Master Sergeant Tull, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano. These moving defendants ask the Court to enter summary judgment in their favor on all remaining counts against them. Officer Spencer did not move or otherwise join the Motion.

Factual Background

Ms. McCaffrey and Officer Spencer were involved in a motor vehicle accident at around 2:00 a.m. on June 5, 2010, at the intersection of 2nd and Orange Streets in Wilmington, Delaware. Officer Spencer had driven through a red light and struck Ms. McCaffrey's vehicle on the rear passenger side, pushing it into a fire hydrant. Prior to the accident, Officer Spencer had been drinking at a "Beef n Brew" at Catherine Rooney's pub.

Officer Spencer called 911 to report the accident. Ms. McCaffrey heard him speaking in police terms. Shortly after that, Officer Spencer showed Ms. McCaffrey his identification card and explained to her that he was a police officer. After waiting some time for the police to arrive in response to Officer Spencer's call, Officer Spencer asked Ms. McCaffrey whether she would like to handle the matter civilly. Ms. McCaffrey agreed. Officer Spencer called the police back and said to disregard his prior call.

Officer Spencer eventually told Ms. McCaffrey he had been drinking.

Officer Spencer placed his hands on Ms. McCaffrey's back and kissed her on the lips. Ms. McCaffrey backed away from him. Officer Spencer asked Ms. McCaffrey where she lived, and she responded that she lived close by. Officer Spencer advised that they should move their vehicles there to get them off the roadway.

Upon parking the vehicles near Ms. McCaffrey's home, Officer Spencer removed items from his glove box, including his gun, magazine, and badge. For some reason, Officer Spencer asked Ms. McCaffrey to hold them for him. Officer Spencer then asked to go into Ms. McCaffrey's apartment to talk about the accident. Ms. McCaffrey yielded to his request.

After entering Ms. McCaffrey's apartment, Ms. McCaffrey went into her bathroom. When she came out, Officer Spencer was in basketball shorts. Officer Spencer patted the bed in an invitation for Ms. McCaffrey to sit down with him. When Ms. McCaffrey did, Officer Spencer asked whether she wanted to have sex. Ms. McCaffrey stated that she did not. After her response, Officer Spencer straddled Ms. McCaffrey and asked again whether she wanted to have sex. Ms. McCaffrey again refused. McCaffrey rose and returned to the bathroom for five to seven minutes. When she exited the bathroom, Officer Spencer was asleep in Ms. McCaffrey's bed. Ms. McCaffrey then left her apartment, and went to a friend's home where she called the WPD at 3:52 a.m.

WPD officers responded to Ms. McCaffrey's call and reported promptly to her apartment. These officers were Corporal Schifano, Sergeant Bluestein, Sergeant Murray, and Master Sergeant Tull. Ms. McCaffrey gave the officers Officer Spencer's gun and other items.

In response to Ms. McCaffrey's report that Officer Spencer was drunk, one officer told Ms. McCaffrey "He's harmless; he's drunk." The officers questioned Ms. McCaffrey in a way that indicated that the officers were unsympathetic to Ms. McCaffrey's concerns and fears. It also appears that the officers did not believe Ms. McCaffrey's version of events because she was female and Officer Spencer was male and a WPD officer. The officers woke Officer Spencer up to remove him from Ms. McCaffrey's apartment. As the "investigation" proceeded, Master Sergeant Tull called Captain Dietz three times because she wanted to administer DUI testing. Captain Dietz told her no all three times, at 4:29 a.m., 5:04 a.m., and 5:26 a.m.

Officer Spencer was taken to Wilmington Hospital at 5:00 a.m. He was cleared for injuries and released at 5:39 a.m.

At 7:15 a.m., Corporal Schifano questioned Officer Spencer about the incident. Officer Spencer refused to cooperate but eventually agreed to perform field tests and passed all the tests, although he has no memory of performing them due to his intoxication.

The WPD Office of Public Safety conducted investigations of the conduct of Officer Spencer and of Corporal Schifano, Sergeant Bluestein, Sergeant Murray, and Master Sergeant Tull. The OPS reports and Departmental Information Reports submitted to Chief Szczerba by Captain Dietz, Master Sergeant Tull, Corporal Schifano, Sergeant Murray, and Sergeant Bluestein stated that the responding officers held off administering DUI testing to Officer Spencer at Captain Dietz's command until Captain Dietz and investigators from the Office of Public Safety arrived to conduct additional interviewing. These reports also indicate that Corporal Schifano, a member of the DUI task force, was particularly adamant about testing Officer Spencer within four hours of driving, as provided by 21 Del. C. § 4177.[1]

Through discovery, Ms. McCaffrey has developed evidence that there have been approximately ten incidents of WPD officer DUIs within the past ten years. The evidence shows that none of these WPD officers have been fired.

Ms. McCaffrey has also proffered the opinions of Dr. Charles Warren as a police liability expert. In his report, Dr. Warren identifies in several respects how Officer Spencer, the City and the WPD violated a law enforcement standard of care in handling the events of the cause of action here. In summary, Dr. Warren opines that (i) Officer Spencer's conduct as an officer of the WPD violated relevant law enforcement standards of care, including those set forth in a number of WPD policies and directives; (ii) Sergeant Bluestein, Sergeant Murray, Corporal Schifano and Master Sergeant Tull, as reporting officers, violated relevant law enforcement standards; and (iii) the WPD and Chief Szczerba violated relevant law enforcement standards in, first, hiring and retaining Officer Spencer and, second, failing to enforce WPD's policies against Officer Spencer, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, and other supervisors of Officer Spencer. Dr. Warren applies a generalized law enforcement standard of care, which does include consideration of WPD policies and directives, to render his opinions.

Parties' Contentions

A. Defendants

The moving defendants claim they are entitled to summary judgment on three main bases. First, the City argues that Ms. McCaffrey cannot establish municipal liability on the part of the City under Section 1983. Second, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull contend that Ms. McCaffrey cannot make out a Section 1983 claim for their conduct and that they are entitled to qualified immunity from Ms. McCaffrey's Section 1983 claims. Third, and finally, the moving defendants contend that Ms. McCaffrey's claims are barred as a matter of law under principles set forth in the case Heck v. Humphrey and the doctrine of collateral estoppel.

As to its first basis, the City argues that Officer Spencer's actions do not rise to the level of a violation of Ms. McCaffrey's constitutional rights to due process and equal protection as a matter of law. The City argues no reasonable juror would find that Officer Spencer's conduct "shocks the conscience." The City adds that Ms. McCaffrey did not meet her burden to prove a violation of due process because nothing in the record demonstrates she was seized.

The City also argues the actions of Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull do not rise to the level of a constitutional violation. Ms. McCaffrey alleges their actions violated her constitutional rights to due process and equal protection in failing to administer alcohol tests, failing to charge Officer Spencer with violations of the law, and failing to arrest Officer Spencer. In support of the Motion, the City argues the Officers did not violate Ms. McCaffrey's constitutional rights because they had no probable cause to arrest Officer Spencer and no reasonable juror could find that Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull acted in a manner that "shocks the conscience" for her substantive due process claim. The City argues Ms. McCaffrey's equal protection claim fails because there is no evidence the she was treated differently from any similarly situated person.

The City additionally argues that, even if the actions of Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull rose to a deprivation of constitutional rights, Ms. McCaffrey's Section 1983 claim fails because she must establish that the City is liable due to a policy or custom, and a single incident does not impose liability. While inadequate training, supervision, investigation or discipline can be a basis for municipal liability, the City argues Ms. McCaffrey cannot demonstrate deliberate indifference, because the record lacks evidence of the City's indifference toward similar incidents or failure to take measures to ensure constitutional rights in question.

Finally, as to the first basis, the City argues that Ms. McCaffrey's negligent and reckless hiring, retention, and supervision claim fails because (i) the WPD conducted a thorough background check on Officer Spencer before hiring him and (ii) no evidence supports the claim. The City adds that Chief Szczerba cannot be held liable for failure to supervise because no evidence establishes Chief Szczerba was aware of prior incidents of Officer Spencer or other officers violating due process or equal protection rights.

As to its second basis for summary judgment, the City argues qualified immunity protects Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull and Chief Szczerba because: (1) there is no evidence upon which a jury could conclude they deprived Ms. McCaffrey of a constitutional right, and (2) it would not have been clear to a reasonable officer in their position that the conduct was unlawful. The City adds, "[t]he officers had no duty to Plaintiff to undertake an investigation or to arrest Spencer."[2]

Finally, as to the third basis for this motion, the City argues Ms. McCaffrey's claim that she was the subject of selective investigation and enforcement in violation of her Fourteenth Amendment right to equal protection and due process fails because she pled guilty to at least one of the charges against her resulting from the investigation of the incident at issue. The City adds that collateral estoppel also bars Ms. McCaffrey's argument because she had a full and fair opportunity to litigate the alleged violations of her due process and equal protection rights during her criminal proceedings.

B. Ms. McCaffrey

Ms. McCaffrey responds that: (1) she can establish municipal liability on the part of the City under Section 1983; (2) Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull and Chief Szcerba are not entitled to qualified immunity; and (3) her claims are barred by neither Heck v. Humphrey or collateral estoppel.

As to her first assertion, Ms. McCaffrey argues Officer Spencer violated her due process equal protection rights by exercising his police authority over her, making her feel compelled to do what he wanted and feel as though she was not free to leave. She argues he would not have done so if she was not female. Ms. McCaffrey objects to inferences by the City that she invited a romantic encounter from Officer Spencer. As to Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull, Ms. McCaffrey argues they denied her equal protection when they implied she knew Officer Spencer and consented to romantic relations with him based on her gender. Ms. McCaffrey argues the defendants' conduct would shock the conscience of any reasonable person. Ms. McCaffrey adds that her rights were violated when Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull failed to intervene to protect her, failed to apprehend and criminally charge Officer Spencer, and administer DUI tests despite that Officer Spencer had clearly been drinking and driving.

Addressing the claim for failure to train, supervise, and discipline, Ms. McCaffrey argues that her expert has demonstrated a corporate culture of disregarding rules and regulations on the part of the WPD. Ms. McCaffrey adds that she has identified multiple instances where the City knew Officer Spencer drove under the influence of alcohol yet did not take steps to criminally charge or discipline him. Ms. McCaffrey argues that she can demonstrate deliberate indifference because Chief Szczerba was advised of all of Officer Spencer's infractions relating to drinking, mistreating women, and other instances disobeying the law, yet the WPD failed to train, supervise, investigate, and discipline Officer Spencer or treat his alcohol issues. Ms. McCaffrey argues that Chief Szczerba's testimony of approximately ten officer DUIs in the past ten years without discharge of any of those officers or intervention to officers for drinking problems is troublesome.

Ms. McCaffrey argues that Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull are not entitled to qualified immunity because no reasonably competent officer would have concluded that their conduct was objectively reasonable. That conduct being prompt administration of DUI testing which would have occurred had Officer Spencer been a civilian.

Ms. McCaffrey argues Heck is inapplicable because she has no criminal case pending, and her infractions were minor in nature and are separate from the circumstances of this case. Ms. McCaffrey argues that collateral estoppel does not preclude her claims because, again, her traffic summonses are not linked to this case.

Standard of Review

The Court may grant a motion for summary judgment made pursuant to Superior Court Civil Rule 56 where the movant can show from the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that no material issues of fact exist so that the movant is entitled judgment as a matter of law.[3] In considering a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party.[4] The Court should deny summary judgment where, "a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[5]

Discussion

A. Nature of a Section 1983 claim

Section 1983 protects individuals from constitutional violations by government actors.[6]Section 1983 provides a cause of action against a person who, acting under the color of state law, deprives another of a Constitutional or Federal right.[7] To state a claim under Section 1983, a plaintiff must indicate: (i) what Constitutional or Federal right was deprived, and (ii) how the plaintiff was deprived of that right under color of state law.[8] Section 1983 creates no substantive rights. Instead, Section 1983 merely provides remedies for deprivations of rights established elsewhere.[9]

Section 1983 does not just apply to individuals. The United States Supreme Court has held that municipalities are "persons" subject to damages liability under Section 1983.[10] A municipality can be liable for violations of constitutional rights where the municipality is the '"moving force" behind the plaintiff's deprivation of federal rights."[11] Rights to due process, equal protection, and privileges and immunities are federally protected rights applicable to states under the Fourteenth Amendment of the United States Constitution.

The Supreme Court of the United States has stated, as to municipal liability:

[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, inflicts injury that the government as an entity is responsible for under § 1983.[12]

Such injury must be a constitutional violation.[13] A plaintiff must demonstrate a municipal policy or custom which caused the injury alleged.[14] A municipality can be held liable for a policy where constitutional deprivations result from decisions of the municipality's "duly constituted legislative body or of those officials whose acts could fairly be said to be those of the municipality."[15] "[A]n unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business."[16] Whether an official has policymaking authority is a question of state law. [17] Nonetheless, liability only attaches if the particular policy making authority in question has the final word on policymaking decisions, without approval from other authority.[18]

"An act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law."[19]

B. Violation of constitutional rights

Count II of Ms. McCaffrey's Second Amended Complaint alleges that Officer Spencer violated Ms. McCaffrey's due process and equal protection rights by touching her inappropriately and directing her to take him up to her apartment where he made sexual advances toward her.[20] Ms. McCaffrey further alleges Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull violated her due process and equal protection rights under Section 1983 in failing to "administer standard tests for alcohol against a fellow officer" and in failing to appropriately charge Officer Spencer with violations of law because he was an officer.[21]

Similarly, in Count III of her Second Amended Complaint, Ms. McCaffrey alleges that the WPD, Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull violated her due process and equal protection rights in failing "to respond appropriately to Officer Spencer's illegal conduct because he is a Wilmington Police Officer."[22]Ms. McCaffrey alleges it was the policy and custom of the WPD, Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull not to enforce laws against WPD officers.[23] Ms. McCaffrey further alleges that they "failed to timely administer the field sobriety test and/or blood test on [Officer] Spencer" and failed to charge him with any crime because he is a Wilmington Police Officer.[24] Count III alleges the negligence, gross negligence and recklessness of the WPD, Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull is imputed upon the City.[25]

Finally, Count IV – asserted against Chief Szczerba and the City – asserts a Section 1983 claim for the negligent and reckless hiring, retention and supervision of Officer Spencer and Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull. Specifically, Ms. McCaffrey contends Chief Szczerba and the City acted with gross negligence and recklessness in initially hiring Officer Spencer.[26] Ms. McCaffrey further alleges that the City and Chief Szczerba knew, or should have known, that Officer Spencer drove while intoxicated and otherwise acted inappropriately and unprofessionally.[27] Lastly, Ms. McCaffrey contends that the City and Chief Szczerba are liable under Section 1983 for acting with gross negligence and recklessness in failing to properly train and supervise Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull.[28]

Ms. McCaffrey's allegations implicate several provisions of the United States Constitution: the Fourteenth Amendment Due Process clause, the Fourth Amendment, and the Fourteenth Amendment Equal Protection clause. The Fourteenth Amendment of the United States Constitution guarantees that no state shall "deprive any person of life, liberty, or property without due process of law."[29] There are two types of due process: procedural and substantive. A claim for a deprivation of due process must demonstrate that (1) the plaintiff was entitled a constitutionally protected right, and (2) she was deprived that right without due process of law.

The Due Process Clause prevents government officials from abusing their power by oppressing others.[30] The hallmark of whether substantive due process is violated is the inquiry of whether executive action is arbitrary so that it shocks the conscience in a constitutional sense.[31] The Supreme Court has "made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm" and "is not a 'font of tort law to be superimposed upon whatever systems may already be administered by the States."[32] A substantive due process analysis includes an inquiry as to whether an asserted right "has any place in our Nation's traditions."[33] The Supreme Court has been reluctant to fashion new due process rights where a plaintiff provides no "textual or historical" support for an alleged due process right.[34]

The United States Court of Appeals for the Third Circuit has stated the law on states' duties to protect citizens from the private acts of individuals as a matter of due process. The Third Circuit stated:

Generally, the Due Process Clause does not impose an affirmative duty upon the state to protect citizens from the acts of private individuals. However, we have explicitly recognized two exceptions to this general rule. First, the state has a duty to protect or care for individuals when a "special relationship" exists. Second, the state has a duty when a "state-created danger" is involved.[35]

State-created danger theory is a "mechanism by which plaintiffs may establish constitutional violations under 42 U.S.C. § 1983."[36] Liability attaches where a "state acts to create or enhance a danger that deprives the plaintiff of his Fourteenth Amendment right to substantive due process."[37] The prongs for a state-created danger claim are:

(1)the harm ultimately caused was foreseeable and fairly direct;
(2)a state actor acted with a degree of culpability that shocks the conscience;
(3)a relationship between the state and the plaintiff existed such that 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)a 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.[38]

Claims involving use of force or a seizure by a police officer should be analyzed under the Fourth Amendment of the United States Constitution, rather than under substantive due process.[39] Violations of Fourth Amendment protection against unreasonable searches and seizures occur when an officer restrains the liberty of a citizen without probable cause that the individual committed a crime.[40] The Delaware Supreme Court has set forth that a police seizure occurs when a reasonable person would not feel free to ignore police presence.[41] A seizure involves either physical force or a show of authority which causes the subject to yield.[42] An "encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature."[43]Where an individual's freedom of movement is restricted by a factor independent of police conduct, the appropriate analysis for whether a person is seized is whether "a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter."[44]

Pursuant to the Equal Protection clause of the Fourteenth Amendment, no state "shall deny to persons within its jurisdiction the equal protection of the laws."[45] To establish a claim for a violation of equal protection rights, a plaintiff must show (1) she is a member of a protected class; (2) she was treated differently from a similarly situated person who is not a member of that class; and (3) the difference in treatment was due to her race, gender or membership in that protected class.[46]

1. Counts II and III -- Constitutional violations as to the conduct of Chief Szczerba and Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull, and whether these defendants are liable pursuant to Section 1983 for any such violations.

Chief Szczerba and Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull cannot be held liable under Section 1983 in Counts II and III because their acts toward Ms. McCaffrey did not arise to a deprivation of constitutional rights. The Supreme Court of the United States has made clear that individuals have no due process property interest in police officers' enforcement of laws.[47] Furthermore, the Court has consistently recognized that law enforcement is discretionary.[48] Ms. McCaffrey has not submitted to this Court any authority recognizing her asserted substantive due process rights for the administration of DUI tests upon Officer Spencer, the charging of Officer Spencer with violations of law, or, as her counsel represented it at the hearing on this Motion, the right to be secure in her own person. This Court shares in the Supreme Court's reluctance to recognize new substantive due process rights without any textual or historical support demonstrating that they "have a history in our Nation's traditions."[49]

Ms. McCaffrey's claim that Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull violated her constitutional right to equal protection of the laws is inadequate even though, as a woman, McCaffrey is a member of a protected class. As the developed case law indicates, this is not the relevant inquiry. The Federal Courts that have examined similar claims have unilaterally held that individual citizens do not have a constitutional right to the prosecution of alleged criminals.[50] In other words, there is no cognizable equal protection constitutional right as a victim to have someone criminally prosecuted.[51] It then follows there is no violation of an equal protection constitutional right because a law enforcement officer fails to administer DUI tests upon another person or charges that person with violations of law. Nothing indicates that the inquiry changes merely because the victim is male or female. The type of constitutional right relied upon by Ms. McCaffrey just is not recognized as valid in a Section 1983 action.[52] As such, Ms. McCaffrey's argument that she was discriminated as to a constitutional right, or was otherwise "unfairly singled out, "[53] on the basis she was female fails as a matter of law.

This does not change here even if gender is factored into the analysis. To establish a claim for a violation of equal protection rights, a plaintiff must show (1) she is a member of a protected class; (2) she was treated differently from a similarly situated person who is not a member of that class; and (3) the difference in treatment was due to her race, gender or membership in that protected class.[54] While Ms. McCaffrey is a member of a protected class (female), there is no evidence that WPD officers would have arrested Officer Spencer if the complaining victim was male as opposed to female. Without facts supporting even an inference of difference in treatment based upon gender or that Ms. McCaffrey was singled out unfairly because she was female, Count II fails as against Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull.[55]

Count III, in part, contains claims that Ms. McCaffrey's equal protection or due process rights were violated by Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull because these individuals failed to apply the criminal law to Officer Spencer and other WPD officers and employees. Moreover, Ms. McCaffrey contends that WPD, Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull had a policy and custom of not enforcing the law against WPD officers. To the extent Court III contains similar individualized claims against Sergeant Bluestein, Corporal Schifano, Sergeant Murray, Master Sergeant Tull and Chief Szczerba for failing to enforce criminal laws generally against WPD officers, including Officer Spencer, then the Courts analysis with respect to Count II is equally applicable. There is no constitutional protected equal protection right to have persons arrested – WPD or otherwise. Moreover, Ms. McCaffrey has not demonstrated a difference in treatment regarding the arrests of third persons based on the victim's gender. So the Count III claims against Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull fail for the same reason that the Count II claims fail.

As for a policy and custom of not enforcing the law against WPD officers, the Court only has evidence regarding Officer Spencer and ten officers charged with DUIs over a ten year period that were not fired but no reference as to whether the ten officers were charged with any crimes. Ms. McCaffrey points to no express policy at the WPD or the City which supports the claim of a policy or custom existing that WPD officers not be charged with crimes. And, the law is clear that proof of a single incident of unconstitutional activity is not sufficient to impose liability unless proof of the incident includes proof that it was caused by an existing unconstitutional policy which policy can be attributable to a municipal policymaker.[56] Where the policy relied upon is not itself unconstitutional, "considerably more proof than the single incident will be necessary in every case" to establish both the requisite fault and the causal connection between the policy and the constitutional deprivation.[57] Even if one were to consider ten DUIs over a ten year period as evidence of a policy or custom, the Court cannot find the unconstitutionality of such a program or custom when there is no equal protection right to have someone charged with a crime.

Ms. McCaffrey's equal protection claims under Section 1983 against Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull in Count II and the similar claims against Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull in Count III are inadequate. Therefore, the Motion is granted as to the Section 1983 claims asserted in Counts II and III premised upon violations of due process and equal protection allegedly committed by Sergeant Bluestein, Corporal Schifano, Sergeant Murray, and Master Sergeant Tull and Chief Szczerba.

2. Count III -- Constitutional violations as to the City and whether the City is liable pursuant to Section 1983 for any such violations.

Assuming for the purposes of this motion that Officer Spencer's conduct violated Ms. McCaffrey's constitutional rights, the City cannot be held liable for Officer Spencer's conduct nor the conduct of Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull under Section 1983. Based on the record before the Court, Ms. McCaffrey has not shown an unconstitutional government policy or custom leading to her injury, and she has not demonstrated fulfillment of the elements of state-created danger theory.

In order to hold the City liable under Section 1983, Ms. McCaffrey must show (1) that she possessed a constitutional right of which she was deprived; (2) that the City had a policy or a custom; (3) that the policy or custom amounts to deliberate indifference to Ms. McCaffrey's constitutional right; and (4) that the policy or custom is the moving force behind the constitutional violation.[58] There also must be a "direct causal link" between the policy or custom and the injury, and Ms. McCaffrey must be able to demonstrate that the injury resulted from a "permanent and well settled practice."[59]

As to direct Section 1983 liability, Ms. McCaffrey has not demonstrated that the City's policy or custom was the "moving force" behind any deprivation of federal rights. This is because Ms. McCaffrey has not shown that Officer Spencer or anyone else acted pursuant to (i) a policy set forth by an identified policymaker or (ii) a custom practiced so widely as to have the force of law.[60]

To be clear, Ms. McCaffrey has not shown that acts she alleges Officer Spencer committed and which violated her due process and equal protection rights—of touching her inappropriately, directing her to allow him into her apartment and subsequently making sexual advances toward her—were performed pursuant to a policy that could fairly be attributed to a policy set forth by the City given the record before the Court. Additionally, nothing in the evidence here supports an allegation that the City implemented, encouraged, or condoned the existence of a policy or custom permitting officers to drive under the influence, improperly exert their authority to seize civilians, or place civilians in danger by entrusting them with weapons.

This is true with the claims that Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull violated Ms. McCaffrey's equal protection or due process rights by not charging Officer Spencer or other WPD officers with crimes. On these claims, Ms. McCaffrey cannot demonstrate that she had a valid constitutional right of which she was deprived or that the City had a policy or custom in effect that was the moving force behind the deprivation of that constitutional right.

As to Section 1983 liability under the state-created danger theory, while Ms. McCaffrey has submitted evidence to raise a question of fact that the harm she alleges Officer Spencer caused her was foreseeable by the City, and that Officer Spencer acted with a degree of culpability that may shock the conscience, Ms. McCaffrey has not met the third prong for a claim. In the same manner that there is no evident policy or custom pursuant to which Officer Spencer acted, see analysis in B.2 above, the City could not have foreseen that Ms. McCaffrey could be a victim of Officer Spencer's acts, "as opposed to a member of the public in general."

Officer Spencer's disciplinary record and background reports contain no information that should have alerted the City of the possibility that members of a discrete class of persons, one of whom being Ms. McCaffrey, who would potentially be subject to harm by Officer Spencer. While his disciplinary infractions demonstrate that Officer Spencer struggled to some extent with alcohol dependency or abuse after becoming employed by the WPD, nothing in his record with the WPD signaled that he would engage in the conduct alleged by Ms. McCaffrey, i.e., use his authority to unlawfully seize a civilian, make sexual advances toward that civilian, and entrust her with his weapon. Without any such foreseeability, the City cannot fairly be held to have acted through Officer Spencer.

The United States Supreme Court has unequivocally warned against use of the Due Process Clause or Section 1983 to impose liability upon a municipality for the acts of an individual employed by the municipality. While Officer Spencer's alleged acts are seriously reprehensible, they are not acts for which the City can be held liable under a Section 1983 claim.

To hold the City liable under Section 1983 for the acts of Chief Szczerba, Sergeant Bluestein, Corporal Schifano, Sergeant Murray and Master Sergeant Tull would contravene the United States Supreme Court's edict not to construe Section 1983 so as to create respondeat superior liability. Therefore, the Motion is granted with respect to the City as to Count III of the Second Amended Complaint.

C. Negligent and Reckless Hiring, Retention and Supervision

In Count IV of her Second Amended Complaint, Ms. McCaffrey alleges that the City and Chief Szczerba violated her equal protection and due process rights in acting with gross negligence and recklessness in hiring, training, and supervising Officer Spencer. Ms. McCaffrey claims that the City and Chief Szczerba "knew or should have known that [Officer] Spencer acted with gross negligence and recklessness in failing to properly train and supervise [Officers] Tull, Bluestein, Murray, and Schifano in enforcing the law against a fellow officer."[61]

1. Negligent hiring, retention and supervision

For claims of municipal liability arising from a hiring decision, "the fact that inadequate scrutiny of an applicant's background would make a violation of rights more likely cannot alone give rise to an inference that a policymaker's failure to scrutinize the record of a particular applicant produced a specific constitutional violation."[62] Instead, for liability to attach, a plaintiff must show a particular employee was "highly likely to inflict the particular injury suffered by the plaintiff."[63] That likelihood must stem from the policymaker's failure to properly screen the applicant, arising to a deliberate indifference.[64] For instance, in Board of County Commissioners of Bryan County, Oklahoma v. Brown, the Supreme Court concluded that municipal liability under Section 1983 could not attach unless a sheriff with hiring authority would conclude based on review of an applicant's record that he was highly likely to apply excessive force in serving as a reserve deputy on a police force.[65]

The WPD conducted an extensive background screening on Officer Spencer before hiring him as a police officer. It included a criminal background check, a warrant check, a driver's history search, a polygraph examination, and a psychological evaluation.[66] As stated above, nothing in the information gathered by the City during Officer Spencer's background screening demonstrated a propensity to drive under the influence or act inappropriately toward women. Not only does the WPD's extensive screening rebut that it could have exercised deliberate indifference in screening Officer Spencer prior to hiring him, its content shows that no basis existed upon which Chief Szczerba or the City could have found it likely, let alone highly likely, that Officer Spencer would inflict the injuries alleged in this action. Therefore, Ms. McCaffrey fails to meet the standard for municipal liability under Section 1983 for negligent hiring or retention the City cannot be liable for such a claim. Consequently, the Motion is granted with respect to Ms. McCaffrey's negligent hiring and retention claims against the City and Chief Szczerba.

2. Negligent supervision and training program

To reach the level of a constitutional violation, a training program must be one that "can justifiably be said to represent 'city policy'" and which is "so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need."[67] "For liability to attach in this circumstance, the identified deficiency in a city's training program must be closely related to the ultimate injury."[68] The program itself is the center of a judicial inquiry, not the administration of the program.[69] The Court must be careful not to construe the test so as to produce de facto respondeat superior liability.[70]

In City of Oklahoma v. Tuttle, [71] the United States Supreme Court considered a Section 1983 claim against Oklahoma City brought by the widow of a man shot and killed by Oklahoma City police. She claimed that the police force inadequately trained its officers on the use of force. Comparing the case to Monell, the Court called the inadequate training policy advanced by Tuttle "nebulous, and a good deal further removed" from a constitutional violation.[72] The Court reversed the appellate court decision affirming the jury award in favor of the plaintiff because the jury was instructed in a manner that allowed the jury to ascribe municipal liability based on a single incident. The Court emphasized the necessity of causally linking an allegedly unconstitutional policy or custom to a municipality.[73]

Importantly, Ms. McCaffrey must identify a basis in state law that a particular individual has final policymaking authority.[74] For example, in City of St. Louis v. Praprotnik, the Supreme Court examined the record before it to determine whether the plaintiff-appellee contended that any person in the city government "promulgated, or even articulated" a particular policy and search for evidence of "the actions of those whom the law established as the makers of municipal policy"[75] The Supreme Court looked to the city charter to overrule the district court's conclusion that two appointing authorities were municipal policymakers because their decisions were not reviewed for substantive propriety and because a city commission gave substantial deference to the decisions of those two individuals.[76] The Court cautioned that "ad hoc searches" for officials possessing "de facto final policymaking authority" "would serve primarily to foster needless unpredictability in the application of Section 1983."[77] A concurring opinion also emphasizes the Supreme Court's rejection of vicarious municipal liability.[78]

Ms. McCaffrey has not presented a basis in Delaware law for why Chief Szczerba is a policymaking authority for the purposes of her claims against the City. The record lacks evidence that Chief Szczerba is an established maker of municipal policy or that he has the final word on policymaking decisions. The Court is not at liberty to conduct what the Supreme Court would call an "ad hoc search" for "de facto final policymaking authority."[79] Without such evidence, Ms. McCaffrey's claims for negligent retention and supervision do not meet the standard for liability under Section 1983. Furthermore, there is no evidence that Chief Szczerba had contemporaneous knowledge of the events of June 5, 2012 or a pattern of prior similar incidents for Ms. McCaffrey to establish deliberate indifference on the part of Chief Szczerba. Even if, for purposes of the Motion, Chief Szczerba is assumed to be a policymaker, the record is bereft of any causal link to an unconstitutional policy or custom practiced by the WPD or the City.

Ms. McCaffrey has not presented evidence to the Court that the WPD's training policies themselves are deficient, as opposed to the administration of those policies.[80] Ms. McCaffrey's evidence that there have been approximately ten incidents of WPD officer DUIs within the past ten years without any of those officers having been fired identifies a trend, but it does not identify deficient policies leading to that trend. Nor do ten DUI incidents without an employment discharge over a ten year period demonstrate the existence of an unconstitutional policy or custom.

Ms. McCaffrey has also proffered the opinions of Dr. Charles Warren as a police liability expert. In his report, Dr. Warren identifies in several respects how the WPD violated a law enforcement standard of care in handling the events of the cause of action here. Dr. Warren's opinion speaks more to deficiencies in the administration of policy than policies themselves. He applies a generalized law enforcement standard of care, which does include consideration of WPD policies and directives, to opine that Officer Spencer and the reporting officers failed to comply with the standard of care. Dr. Warren does not articulate specific WPD policies or training policies and how they are deficient.

Without any evidence of constitutional deficient WPD policies or training programs arising to the level of an unconstitutional policy or custom, Ms. McCaffrey's negligent training and supervision claim fails to meet the standard for Section 1983 liability, and therefore, the Motion is granted as to her negligent training and supervision claims against Chief Szczerba and the City.

D. Qualified Immunity

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[81] "A defendant is not immune where, on an objective basis, no reasonably competent officer would have concluded that the action was lawful."[82]

Since the Court has determined that Corporal Schifano, Sergeant Bluestein, Sergeant Murray, and Master Sergeant Tull did not violate any recognized constitutional right (the equal protection right to have someone prosecuted) of Ms. McCaffrey, and there is no claim that their conduct violated a statutory right, Corporal Schifano, Sergeant Bluestein, Sergeant Murray, and Master Sergeant Tull are entitled to qualified immunity for their actions in relation to Ms. McCaffrey's claims. Therefore, the Motion is granted as to qualified immunity.

E. Barring of Ms. McCaffrey's claims

Under precedent established by Heck v. Humphrey, [83] A plaintiff seeking damages under Section 1983 for allegedly unconstitutional conviction or imprisonment, or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid must prove that a conviction or sentence has been reversed, expunged, declared invalid, or called into question by a writ of habeus corpus.[84] The holding reflects the Court's view that civil actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.[85]

Ms. McCaffrey's criminal convictions or charges were for driving an unregistered vehicle, failure to show proof of insurance, and failure to reinstate a driver's license. They are factually and legally separate from and have no bearing upon the issues of this civil action. To litigate the issues, Ms. McCaffrey presents in this action during proceedings for her charged traffic violations would have been inappropriate. Furthermore, according to Ms. McCaffrey, none of her charges are outstanding.

Collateral estoppel bars a party from relitigating a question of fact that is essential to a judgment that has already been litigated and determined valid and final.[86] Again, the claims Ms. McCaffrey brings here are separate and completely different in nature from her charges for traffic violations. Therefore, neither Heck v. Humphrey, nor collateral estoppel bars Ms. McCaffrey's claims, and the Motion is denied on this basis.

Conclusion

For the reasons stated above, the Motion is GRANTED in part and DENIED in part, and JUDGMENT IS ENTERED in favor of the City of Wilmington, Sergeant Donald Bluestein, Sergeant Gerald Murray, Corporal Ralph Schifano, Master Sergeant Sherri Tull, and Chief Michael Szczerba on all claims asserted against these parties Counts II, III and IV of the Second Amended Complaint.


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