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White v. Irwin

United States District Court, D. Delaware

July 8, 2015

DAVID J. WHITE, Plaintiff,

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Julianne E. Murray, Esquire of MurrayPhillips, P.A., Georgetown, Delaware. Counsel for Plaintiff.

Stuart B. Drowos, Esquire and Roopa Sabesan, Esquire, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.

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SUE L. ROBINSON, District Judge.


Plaintiff David J. White (" plaintiff" ) brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983, and raising supplemental state claims arising from investigations by the Delaware Department of Justice (" DOJ" ) and the Delaware Department of Correction (" DOC" ) into suspicions that plaintiff possessed child pornography. (D.I. 1, ex. 1) Plaintiff filed his complaint in the Delaware Superior Court on October 9, 2014. ( Id. ) Defendants removed the action to this court on November 18, 2014. (D.I. 1) Presently before the court is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The court has jurisdiction pursuant to 28 U.S.C. § § 1331, 1367 and 1441.


A. The Parties

Plaintiff was employed by the DOC from January 24, 2003 to February 15, 2012. Defendant Robert Irwin (" Irwin" ) is a special investigator at the DOJ. Defendants Steven Flicker (" Flicker" ) and Mike Tigue (" Tigue" ) are investigators in the DOC Internal Affairs department. Defendant G. R. Johnson (" Johnson" ) is the warden of Sussex Correctional Institution, the DOC facility where plaintiff was employed. Defendant Janet Durkee (" Durkee" ) is the DOC's Director of Human Resources.

B. The DOJ Investigation

On September 19, 2012, Irwin and Delaware State Police Detective Kevin McKay visited plaintiff's home to investigate a report of illegal online activity at plaintiff's address. (D.I. 1, ex. 1 at ¶ 8) Irwin told plaintiff he was investigating a complaint filed by an internet service provider. ( Id. ) Plaintiff allowed the investigators to search his home for the purpose of confirming plaintiff's assertions that there were no computers in the house and that the house was not equipped with internet accessibility. ( Id. at ¶ ¶ 11-12) Plaintiff alleges that, although Irwin never stated that plaintiff was under investigation for criminal activity ( Id. at ¶ 13), Irwin nonetheless threatened to report the investigation to the DOC if plaintiff did not admit to wrongdoing or name another person or persons who were responsible ( Id. at ¶ 16). The following day, September 20, 2012, Irwin composed an " Initial Crime Report" describing the interview and search. ( Id. at ¶ 14) Plaintiff alleges that the report contained several inaccuracies. Irwin wrote that he discussed with plaintiff the suspension of plaintiff's online account, the description of an image of child pornography, and plaintiff's memory of the alleged image, but plaintiff alleges these subjects were not discussed. ( Id. ) The crime report allegedly states that the DOJ closed its investigation of plaintiff for lack of physical evidence and that Irwin referred the matter to the DOC Internal Affairs investigators. ( Id. at ¶ ¶ 17-18)

C. The DOC Internal Affairs Investigation

Plaintiff alleges that Irwin informed Ronnie Drake (" Drake" ), Director of the DOC Internal Affairs Unit, of the DOJ investigation on October 2, 2012. ( Id. at ¶ 19) Plaintiff further alleges that Irwin misrepresented the status of the DOJ investigation as ongoing, and that Drake assigned the matter to Flicker for internal investigation by DOC. ( Id. Flicker and Tigue interviewed plaintiff on October 11, 2012. ( Id. at ¶ 22) Plaintiff told the investigators that he had not reported the interview with Irwin to the DOC because Irwin

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never told plaintiff that he was under investigation. ( Id. at ¶ 24). Tigue told plaintiff that DOC policy required DOC employees to report any contact with police to the DOC. ( Id. ) Plaintiff alleges that this interview marked the first time he became aware that Irwin acted on his threat to reveal the DOJ investigation to the DOC. ( Id. at ¶ 23) Flicker instructed plaintiff to produce cellular telephone records for the period from April 1, 2012 to July 30, 2012. ( Id. at ¶ 28) Under the advice of counsel, plaintiff did not comply with this request. ( Id. at ¶ 29)

Johnson formally notified plaintiff that he was under investigation by the DOC through a memorandum dated November 13, 2012. ( Id. at ¶ 31) At a meeting on November 13, 2012 between plaintiff, Johnson, and a union representative, Johnson suggested that plaintiff had violated DOC Policy Number 9.6 by failing to notify the DOC of the DOJ investigation. ( Id. at ¶ 32) DOC Policy Number 9.6 states: " Employees must report, in writing, all police contact where the employee is the subject of a criminal investigation . . . to their supervisor within five (5) working days following the event." ( Id. at ¶ 25) Johnson told plaintiff that the infraction would be overlooked if plaintiff complied with the DOC investigators' request for records. ( Id. at ¶ 32) The DOC suspended plaintiff without pay on December 4, 2012 for his failure to comply with the request and for his violation of Policy Number 9.6. ( Id. at ΒΆ 33) Johnson recommended ...

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