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Deitrich v. Danberg

United States District Court, D. Delaware

March 20, 2018

CARL DANBERG, in his individual capacity; and JANET DURKEE, in her individual capacity, Defendants.



         Pending before the Court is Defendant Carl Danberg ("Danberg")[1] and Defendant Janet Durkee's ("Durkee")[2] (together, "Defendants") motion to dismiss Plaintiff Phillip Deitrich's ("Deitrich") complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.I. 11) For the reasons stated below, IT IS HEREBY ORDERED that Defendants' motion to dismiss (D.I. 11) is GRANTED.

         1. Deitrich is a former employee of the Delaware Department of Correction ("DOC"). (See D.I. 1 ¶ 12) At the time of his termination, Deitrich was a Senior Correctional Counselor at the James T. Vaughn Correctional Center ("JTVCC"). (See Id. ¶ 14) In that role, Deitrich was required to interview inmates, write inmate classification reports, process phone sheets, manage a peer education and AIDS awareness program, and facilitate the rehabilitation of inmates. (See Id. ¶ 15) (describing Deitrich's job "duties") In order to perform those duties, Deitrich was trained in, given access to, and used the Delaware database of confidential "Criminal Justice Information" commonly referred to as DELJIS. (See Id. ¶¶ 13, 16-19 (describing various ways Deitrich used DELJIS to perform job duties); D.I. 12 at 4 n.3)

         2. In April 2012, DOC opened an investigation into Deitrich's use of the DELJIS system. (See D.I. 1 ¶ 20) On April 16, 2012, Deitrich was informed by email that he and two others[3] would be interviewed by DELJIS Information Systems Auditor Ray Sammons ("Sammons") the following week. (See Id. ¶¶ 9, 20) One week later, Sammons interviewed Deitrich "regarding a Ms. Charlotte Morris." (Id. ¶ 21) Approximately three weeks after the interview, Sammons emailed Deitrich and three others, [4] informing them that a second interview would take place the following day. (See Id. ¶ 24) The next day, Sammons interviewed Deitrich for a second time.[5] (See Id. ¶ 25) While the DOC investigation was pending, Deitrich's DELJIS access was suspended. (See Id. ¶ 22)

         3. On May 24, 2012, Deitrich received written notice that his DELJIS access was permanently suspended.[6] (See Id. ¶ 27) Deitrich immediately contacted his union president, [7] Karl Hazzard ("Hazzard"), who instituted an appeal of Deitrich's DELJIS suspension. (See Id. ¶¶ 28-29) On June 20, 2012, the DELJIS Board of Managers ("Board") held a hearing on Deitrich*s appeal and upheld his permanent suspension from DELJIS.[8] (See Id. ¶ 30) Deitrich requested the reasons for the Board's decision but was not provided with any explanation, nor was he given access to the Board's evidence or Sammons' report. (See id.) On July 3, 2012, Deitrich received an email confirming his permanent suspension from DELJIS. (See Id. ¶ 31)

         4. Three days later, then-JTVCC Warden Perry Phelps ("Phelps") met with Deitrich and Hazzard. (See Id. ¶ 32) During the meeting, Phelps informed Deitrich that he was being removed from the workplace with pay, pending a DOC investigation into his conduct pursuant to Policy 9.22.[9] (See id.) Deitrich "was given a copy of the Memorandum removing him from the workplace." (See id.) Four days later, DOC investigator Ronald Hosterman conducted an in-person "210 investigation" into Deitrich's conduct.[10] (See Id. ¶ 33) Three days later, on July 13, 2012, Phelps met with Deitrich and Hazzard for a second time. (See Id. ¶ 34) Phelps informed Deitrich that he was now suspended from the workplace without pay, pending termination. (See id.) Deitrich was not given the reason for this decision or a copy of the 210 investigation findings. (See id.)

         5. Following the July 13 meeting with Phelps, Hazzard scheduled a meeting with Durkee and Danberg about Deitrich's suspension. (See Id. ¶ 35) The day before the meeting, Deitrich received a letter from Durkee informing him that he was being considered for dismissal based on the results of the DOC investigation. (See Id. ¶ 36; see also D.I. 12 Ex. B ("Pre-Termination Letter"))[11] The letter explained Deitrich faced dismissal based on his "inappropriate and unauthorized use of the Delaware Criminal Justice Information System (DELJIS) for non-work related purposes." (Pre-Termination Letter; see also D.I. 1 ¶ 36) The letter further informed Deitrich that his DELJIS access had been permanently suspended "due to a substantiated DELJIS violation." (Pre-Termination Letter; see also D.I. 1 ¶ 36) On July 24, 2012, Deitrich, Hazzard, and Deitrich's union representative met with Danberg and Durkee for a "Pre-Decision Meeting." (See Pre-Termination Letter; D.I. 1 ¶ 37) During the Pre-Decision Meeting, Deitrich was given an opportunity to explain why he should not be terminated. (See D.I. 1 ¶ 37) Deitrich took advantage of that opportunity and pleaded his case "as best as he could." (See id.) On August 7, 2012, Deitrich called his union representative about the Pre-Decision Meeting and learned he had been terminated, effective August 6, 2012. (See Id. ¶ 38)

         6. On June 18, 2014, Deitrich filed a complaint against various DELJIS officials[12] and Defendants, in their individual capacities, alleging that Defendants' handling of Deitrich's DELJIS suspension and subsequent termination violated the Due Process Clause.[13] (See D.I. 1) On October 30, 2015, Defendants filed a renewed motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.I. 11) Deitrich filed an answering brief with respect to each defendant (D.I. 13, 14), and Defendants replied on December 15, 2015 (D.I. 15).

         7. Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter. A motion to dismiss for lack of subject matter jurisdiction may present either a facial or factual attack. See CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). A facial attack "concerns an alleged pleading deficiency, " while "a factual attack concerns the actual failure of a plaintiff s claim to comport factually with the jurisdictional prerequisites." Id. (internal quotation marks and alterations omitted). However, where the question of jurisdiction is intertwined with the merits, that is, "where the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action for the district court... is to find that jurisdiction exists and to deal with the objection as a direct attack on the merits of the plaintiffs case." Id. at 143 (internal quotation marks and alterations omitted). For jurisdiction to be intertwined with the merits, there must be overlapping issues of proof. See id.

         8. Defendants contend that the Court lacks subject matter jurisdiction over Deitrich's claims because Deitrich failed to exhaust his remedies under the collective bargaining agreement Defendants. (See D.I. 9 ¶ 7; D.I. 10 at 2) between DOC and Deitrich's union ("CBA"). (See D.I. 12 at 9-10) In general, there is no exhaustion requirement for § 1983 claims. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). However, a plaintiff alleging a deprivation of procedural due process "must have taken advantage of the processes that are available to him or her." Id. This requirement is "analytically distinct" from "exhaustion requirements that exist in other contexts" and is a "requirement that the harm alleged has occurred." Id.; see also Id. ("Under the jurisprudence, a procedural due process violation cannot have occurred when the governmental actor provides apparently adequate procedural remedies and the plaintiff has not availed himself of those remedies."). Accordingly, whether Deitrich exhausted the remedies available to him goes to the merits of his claim (i.e., whether a procedural due process violation has occurred based on post-termination procedures), and thus the Court will resolve any failure to exhaust as part of Defendant's motion to dismiss pursuant to Rule 12(b)(6). See CNA, 535 F.3d at 143.

         9. Evaluating a motion to dismiss under Federal Rule of Civil Procedure 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 Court may grant 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, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000) (internal quotation marks omitted). However, to survive a motion to dismiss, "[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). "In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents."[14] Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

         10. Deitrich brings a § 1983 claim, alleging a violation of procedural due process. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The Fourteenth Amendment forbids a state from depriving persons of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1.

         11. "In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Alvin, 227 F.3d at 116. "A state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them." Id. (internal quotation marks and alterations omitted). "If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Id.

         12. Here, the CBA establishes a three-step grievance procedure for "dispute[s] between the parties[] concerning the application, meaning or interpretation of the CBA.[15] (See D.I. 12 Ex. C ("CBA") ¶ 6.1) "Appeals from suspensions and dismissals" are initiated at step two of the three-step process, which calls for employees to submit their grievances to the DOC Commissioner (or other designee). (Id. ¶ 7.5) Deitrich has not alleged that he filed a grievance after being terminated or took any steps to follow the procedure outlined in the CBA.[16](See generally D.I. 1) While Deitrich contends that this should not be held against him, arguing that grievances must be initiated and prosecuted by the union, not individual members, the CBA specifically provides that "[e]mployees" - not the union or its representatives - "have 5 working days to appeal disciplinary actions." (CBA ¶ 7.6) Indeed, the CBA establishes the procedures that are to occur "[i]n the event the employee appeals such suspension or dismissal." (Id. ¶ 7.7) (emphasis added) Therefore, under the terms of the CBA, Deitrich himself had the right to file a grievance and has failed to allege that he availed himself of the remedies available under the CBA. Thus, even viewing the facts in the light most favorable to Deitrich, Deitrich failed to take advantage of the remedies available to him under the CBA and cannot sustain a procedural due process claim based on the post-termination procedures. See Wilson v. MVM, Inc.,475 F.3d 166, 176 (3d Cir. 2007) ("[A]ppellants' due process claims against MVM must fail because they ...

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