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Issa v. Delaware State University

United States District Court, D. Delaware

August 4, 2017

JAHI ISSA, Plaintiff,
DELAWARE STATE UNIVERSITY; HARRY WILLIAMS, individually and in his official capacity; ALTON THOMPSON, individually and in his official capacity; HARRY R. DOWNES, JR., individually and in his official capacity; JUSTIN BUCHWALD, individually and in his official capacity; and DOMINICK CAMP ALONE, individually and in his official capacity, Defendants.

          Katherine R. Witherspoon, Paula C. Witherow, and Anthony N. Delcollo, COOCH AND TAYLOR, P.A., Wilmington, DE Attorneys for Plaintiff Jahi Issa.

          James 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 Campalone.


          STARK, U.S. District Judge.

         I. BACKGROUND

         Plaintiff 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, 32-36, 39)

         In 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)

         On 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)

         The 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. ¶ 91)

         None of 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. ¶¶ 101 -04)

         Issa 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)

         Issa 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 Tr.)


         Evaluating 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." Id.

         However, "[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).

         Although 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)


         Issa 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.

         A. Sovereign Immunity

         The 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.

         The 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.

         Because 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)).

         Issa 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.[1]

         Defendants 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.

         Even if 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 immunity:

(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 ...

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