United States District Court, D. Delaware
Katherine R. Witherspoon, Paula C. Witherow, and Anthony N.
Delcollo, COOCH AND TAYLOR, P.A., Wilmington, DE Attorneys
for Plaintiff Jahi Issa.
D. Taylor, Jr., Gerard M. Clodomir, and Allison J. McCowan,
SAUL EWING LLP, Wilmington, DE Attorneys for Defendants
Delaware State University, Harry Williams, Alton Thompson,
Harry R. Downes, Jr., Justin Buchwald, and Dominick
U.S. District Judge.
Jahi Issa, Ph.D, was an assistant professor of history and
Africana studies in the Department of History, Political
Science and Philosophy ("HPSP") at Delaware State
University ("DSU" or the "University") in
Dover, Delaware. (D.I. 16 ("Am. Compl.") ¶ 10)
In 2010, Issa applied for a promotion to associate professor.
After a promotion and tenure committee voted to recommend
approval of Issa's application, Marshall Stevenson, Jr.,
the dean of DSU's arts college, overrode that decision
and denied Issa the promotion. (Id. ¶¶ 16,
18) Defendant Harry Williams, DSU's president, similarly
informed Issa that he was not recommending Issa for
promotion. (Id. ¶ 20) That same year, two of
Issa's HPSP colleagues, both white females, were
promoted. (Id. ¶ 21) Issa, an African-American
male, contends that these individuals "were not as
qualified" as he was. (Id.) He generally
alleges a history of harassment and discrimination throughout
his time at DSU. (See, e.g., Id. ¶¶ 22-27,
2011, Issa was diagnosed with chest pain and post-traumatic
stress disorder related to his work at the University.
(Id. ¶¶ 35, 38) He also filed a charge of
discrimination with the Delaware Department of Labor on July
15, 2011. (Id. ¶ 41) Issa applied again for a
promotion that September and received a committee
recommendation. (Id. ¶¶ 43, 47) Stevenson
and Williams again did not support the recommendation.
(Id. ¶¶ 48-49)
March 1, 2012, Issa attended a protest aimed at the
"growing trend in which DSU was abandoning its mission
associated with being an HBCU (Historically Black College and
University)." (Id. ¶ 52) Issa alleges that
his free speech rights were violated when he was
"physically assaulted, injured, and arrested" by
Defendants Harry Downes, Jr., the University's police
chief, and Justin Buchwald, a DSU police officer.
(Id. ¶¶ 54, 56) Issa was transported to a
hospital and then arrested and jailed for several hours. A
criminal complaint filed by Defendant Dominick Campalone, a
DSU police sergeant, charged Issa with offensive touching,
resisting arrest, and two counts of disorderly conduct.
(Id. ¶¶ 58-59) Issa believes he was
"specifically targeted by DSU police at the behest of
other named Defendants for the purpose of chilling
[Issa's] expression of a viewpoint with which other named
Defendants disagreed, and as part of a continuing scheme to
harass Dr. Issa with malice, in retaliation for his continual
filing of grievances with the [U]niversity and due to his
filing of charges" with the Equal Employment Opportunity
Commission. (Id. ¶ 55)
next day, the University notified Issa that it was
investigating the incident and put Issa on paid
administrative leave. (Id. ¶ 69) On April 1,
2012, Defendant Williams sent Issa a letter of appointment
for the 2012-2013 academic year and "Terminal Contract,
" which Issa accepted "under protest, " after
DSU rejected an initial "conditional acceptance."
(Id. ¶¶ 73, 78-81) Issa, citing the
criminal proceedings against him, did not meet with DSU
regarding its administrative investigation. (Id.
¶¶ 84-85) On June 1, 2012, Defendant Alton
Thompson, DSU's provost, informed Issa that the
University would be "pursuing his termination."
(Id. ¶ 87) On August 17, 2012, Issa was given a
notice of discharge, allegedly in violation of the Collective
Bargaining Agreement (CBA) between DSU's Board of
Trustees and the University's chapter of the American
Association of University Professors. (Id. ¶
the four criminal charges filed against Issa resulted in a
conviction. The disorderly conduct charge for failure to
disperse was dismissed by the trial court for lack of
probable cause. (Id. ¶ 98) The State dismissed
the other disorderly conduct charge, based on offensive
language, and the offensive touching charge. (Id.
¶¶ 99-100) A trial on the final remaining charge of
resisting arrest resulted in a hung jury and was ultimately
dismissed by the Court of Common Pleas before a scheduled
re-trial (due to concerns over the leaking of confidential
jury deliberation information). (Id. ¶¶
filed a pro se Complaint on February 7, 2014, based
on the denial his promotion application, his arrest and the
prosecution of the charges arising from that arrest, and his
termination from DSU. (See D.I. 2) The Court allowed
Issa to proceed in forma pauperis. (See D.I. 4) The
Court then screened the Complaint under 28 U.S.C. §
1915(e)(2). On August 11, 2014, the Court issued a memorandum
opinion and order dismissing certain claims and giving Issa
leave to amend certain others. (See D.I. 5, D.I. 6)
The case was stayed during the pendency of the criminal case
against Issa, and he was provided extensions of time to file
an amended pleading. (See D.I. 11, D.I. 14)
retained counsel in February 2015 and filed a redrafted
Amended Complaint on April 27, 2015. (See generally
D.I. 16) It asserts 14 claims for relief under state and
federal law, including 42 U.S.C. § 1983. On May 26,
2015, Issa filed a motion asking the Court to reconsider its
finding of sovereign immunity and dismissal as frivolous of
his malicious prosecution claim. (See D.I. 21, 22)
On April 1, 2016, Williams, Thompson, Downes, Buchwald, and
Campalone (together, the "Individual Defendants"),
along with the University, moved to dismiss. (D.I. 32) The
parties completed combined briefing of the reconsideration
and dismissal motions. (See D.I. 33, 35, 36) The
Court heard oral argument on August 30, 2016. (See
a motion to dismiss under Rule 12(b)(6) requires the Court to
accept as true all material allegations of the complaint.
See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir.
2004). "The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420
(3d Cir. 1997) (internal quotation marks omitted). Thus, the
Court may grant such a motion to dismiss only if, after
"accepting all well pleaded allegations in the complaint
as true, and viewing them in the light most favorable to
plaintiff, [the] plaintiff is not entitled to relief."
"[t]o survive a motion to dismiss, a civil plaintiff
must allege facts that 'raise a right to relief above the
speculative level on the assumption that the allegations in
the complaint are true (even if doubtful in fact).'"
Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.
2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). A claim is facially plausible "when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). At bottom, "[t]he complaint
must state enough facts to raise a reasonable expectation
that discovery will reveal evidence of [each] necessary
element" of a plaintiffs claim. Wilkerson v. New
Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d
Cir. 2008) (internal quotation marks omitted). The Court is
not obligated to accept as true "bald assertions, "
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) (internal quotation marks omitted),
"unsupported conclusions and unwarranted inferences,
" Schuylkill Energy Res., Inc. v. Pa. Power &
Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or
allegations that are "self-evidently false, "
Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).
a district court ruling on a motion to dismiss generally
"may not consider matters extraneous to the pleadings,
" there is an exception for documents "integral to
or explicitly relied upon in the complaint, " which may
be considered "without converting the motion to dismiss
into one for summary judgment." In re Burlington
Coat Factory, 114 F.3d at 1426 (internal quotation
marks, citations, and punctuation omitted). Courts may also
consider "items subject to judicial notice [and] matters
of public record." Buck v. Hampton Twp. Sch.
Dist., 452 F.3d 256, 260 (3d Cir. 2006)
asks the Court to reconsider its Eleventh Amendment immunity
ruling and dismissal of his malicious prosecution claim.
(See D.I. 5 at 5-6, 9) Defendants do not appear to
vigorously contest this motion on procedural grounds or
assert any prejudice; their briefing focuses on the
substantive arguments. Because the Court alters its finding
on sovereign immunity and dismisses Issa's amended
malicious prosecution claim on grounds other than frivolity
(see below), it will grant Issa's
reconsideration motion. Defendants' motion to dismiss
will be granted in part and denied in part, as explained in
the sections that follow.
Court initially ruled that sovereign immunity bars Issa's
§ 1983 claims against DSU and the Individual Defendants
in their official capacities. (See D.I. 5 at 5-6)
The Court cited, among other cases, McKay v. Delaware
State University, 2000 WL 1481018, at * 10 n.28 (D. Del.
Sept. 29, 2000), in finding that DSU is "protected from
suit by reason of its Eleventh Amendment immunity."
(Id. at 5) Issa, citing case law from the Supreme
Court of Delaware and the Third Circuit Court of Appeals'
test outlined in Fitchik v. New Jersey Transit Rail
Operations, Inc., 873 F.2d 655 (3d Cir.1989), urges the
Court to vacate this ruling.
Eleventh Amendment to the U.S. Constitution provides that
"[t]he judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by citizens of
another state, or by citizens or subjects of any foreign
state." The Supreme Court has explained that
"[a]lthough the text of the Amendment would appear to
restrict only the Article III diversity jurisdiction of the
federal courts, we have understood the Eleventh Amendment to
stand not so much for what it says, but for the
presupposition . . . which it confirms." Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 54(1996). In
fact, a State's sovereign immunity "neither derives
from, nor is limited by, the terms of the Eleventh
Amendment." Alden v. Maine, 527 U.S. 706, 713
(1999). Instead, "the States' immunity from suit is
a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution, and
which they retain today." Id.
Eleventh Amendment immunity is akin to an affirmative
defense, Defendants bear the burden of showing its
application. See Christy v. Pennsylvania Tpk. Comm
'n, 54 F.3d 1140, 1146 (3d Cir. 1995). Generally,
"[a] state agency is entitled to immunity from suit in a
federal court under the eleventh amendment when a judgment
against it 'would have had essentially the same practical
consequences as a judgment against the State itself"
Fitchik, 873 F.3d at 658 (quoting Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, 440
U.S. 391, 401 (1979)).
points the Court to Rogers v. Delaware State
University, 2005 WL 2462271 (Del. Super. October 5,
2005), aff'd in part and rev'd in part on other
grounds, 905 A.2d 747 (Table), 2006 WL 2085460 (Del.
July 25, 2006). In that case, the Superior Court ruled that
DSU is not protected by Delaware's sovereign immunity.
See Rogers, 2005 WL 2462271, at *2-3. This holding
was apparently based on findings that (i) DSU's level of
autonomy rendered it "sufficiently independent of State
control to be outside the protections offered by sovereign
immunity, " and (ii) the state legislature waived any
immunity that might otherwise apply. Id. With regard
to waiver, the court cited "[t]he decision by the
General Assembly to incorporate DSU, granting the University
all the powers and franchises incident to a corporation,
" which the court held "indicates a specific intent
to waive sovereign immunity protection." Id. at
*2 (internal quotation marks omitted). On appeal, the Supreme
Court of Delaware "agree[d] with and affirm[ed] .. .the
Superior Court's well-reasoned opinion" on the
sovereign immunity question. Rogers, 905 A.2d 747,
2006 WL 2085460 at *2.
correctly note that Rogers analyzed DSU's
sovereign immunity claim under Article I, § 8 of the
Delaware Constitution rather than the Eleventh Amendment to
our federal Constitution. (D.I. 33 at 12) While Defendants
assert that "the two concepts are similar, but not the
same" (id.), they fail to offer any explanation
or cite to any authority suggesting that the federal
constitutional analysis is meaningfully different than that
applied in Rogers. See generally Alden, 527 U.S. at
713 ("We have ... sometimes referred to the States'
immunity from suit as 'Eleventh Amendment immunity.'
The phrase is convenient shorthand but something of a
misnomer ...."); see also Fitchik, 873 F.2d at
659 (explaining that agency's "status ... under
state law" is factor in "determining] whether
eleventh amendment immunity extends to an entity"). Such
distinction is even less convincing in light of the
Rogers holding that the Delaware legislature
"specific[ally] inten[ded] to waive" sovereign
immunity. Rogers, 2005 WL 2462271, at *2.
Rogers is put aside, and even if, as Defendants
argue, "it is not unusual for an institution to be
considered a state agency for one purpose and not
another" (D.I. 36 at 9), Defendants fail to meaningfully
address the Third Circuit's guidance in Fitchik.
There, the court considered whether injured railroad workers
could sue a subsidiary of the New Jersey Transit Corporation.
The court identified the following factors as relevant in
determining whether a state agency is protected by sovereign
(1) Whether the money that would pay the judgment would come
from the state (this includes three of the Urbano
factors - whether payment will come from the state's
treasury, whether the agency has the money to satisfy the
judgment, and whether the sovereign has immunized itself from
responsibility for the agency's debts);
(2) The status of the agency under state law (this includes
four factors - how state law treats the agency generally,
whether the entity is separately incorporated, whether the
agency can sue or be sued in its own right, and whether it is
immune from state taxation); and
(3) What degree of autonomy the agency has.
Fitchik, 873 F.2d at 659 (internal citation