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Dollard v. Callery

Superior Court of Delaware

April 16, 2018

RICHARD T. CALLERY, et al., Defendants.

          Submitted: January 16, 2018

         Upon Defendants Callery, Division of State Police, and Department of Health and Social Services' Motion to Dismiss: Granted in part

          Patrick C. Gallagher, Esquire, and Alexander W. Funk, Esquire, of CURLEY, DODGE & FUNK, LLC, Dover, Delaware, Attorneys for Plaintiffs.

          Michelle D. Allen, Esquire, of LAW OFFICES OF MICHELLE D. ALLEN, LLC, Hockessin, Delaware, Attorney for Richard Callery, Joseph C. Handlon, Esquire, and Michael F. McTaggart, Esquire, of the STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys for DHSS and DSP, respectively.


          LeGROW, J.

          Plaintiffs initiated this civil case after the investigation of alleged misconduct at Delaware's Office of the Chief Medical Examiner ("OCME") and retesting of certain drug evidence revealed that the cocaine Plaintiff was convicted of dealing was, in fact, powdered sugar. Delaware State Police officers arrested Plaintiff Jermaine Dollard for drug trafficking in June 2012. Dollard was convicted at trial and filed an appeal. While Dollard's appeal was pending, the State commenced an investigation into alleged misconduct at the OCME. The investigation prompted officials to retest the evidence in Dollard's case, at which time the drug evidence tested as confectioner's sugar. Now Mr. and Mrs. Dollard (collectively, "Plaintiffs") bring civil claims against several OCME employees mentioned in the State's OCME investigative report and all police officers involved in Mr. Dollard's arrest, as well as the State, Department of Health and Social Services ("DHSS"), and Delaware State Police ("DSP").

         Although falsifying evidence plainly violates a criminal defendant's right to fair trial, the question presented here is whether Plaintiffs may maintain a claim against every individual and entity, however remote, involved in a criminal case, without any other allegations connecting those individuals and entities to the evidence in this case and alleged misconduct involving evidence. I find the amended complaint fails to state a claim against almost all Defendants, even when applying Delaware's permissive pleading standard. My reasoning follows.

          Factual and Procedural Background

         The following facts are taken from the amended complaint drawing all permissible inferences in Plaintiffs' favor. The Delaware State Police pulled over Mr. Dollard on June 13, 2012, in New Castle County. After Mr. Dollard's arrest, Officer Jeremiah Lloyd drove Mr. Dollard's vehicle to Delaware Police Troop 2. A canine inspection of the vehicle supervised by Officer Kristin Carroll indicated the presence of narcotics. Officer Christopher Sutton then searched inside the vehicle and found a concealed compartment containing two kilograms of white powder. A field-test performed by Officer Sutton identified the powder as cocaine. On approximately June 25, 2012, Officer Scott McCarthy delivered the powder to James Woodson, a forensic investigator at the OCME.

         On or about August 14, 2012, Areatha Bailey, an administrative assistant at OCME, transported the evidence to Irshad Bajwa for testing. Bajwa, a forensic chemist at OCME, had access to the powder between August 29, 2012, and September 10, 2012. Bajwa prepared a lab report indicating the powder found in Mr. Dollard's vehicle was cocaine. During Mr. Dollard's trial on October 29, 2013, Bajwa testified the powder tested positive for cocaine. On November 6, 2013, the jury convicted Mr. Dollard of Aggravated Possession, Drug Dealing, Conspiracy Second Degree, Possession of a Controlled Substance, and Possession of Drug Paraphernalia.

          While Mr. Dollard's appeal was pending before the Supreme Court, the State commenced an investigation into alleged misconduct at the OCME. That investigation was prompted by events that arose in a criminal trial unrelated to Mr. Dollard's case. Specifically, on January 14, 2014, during the criminal trial of Tyrone Walker, [1] a witness opened an exhibit that was supposed to contain 67 blue Oxycodone pills. Instead, the exhibit contained 14 pink pills. Bajwa had at least some connection to the evidence in Walker's trial, and the amended complaint alleges Bajwa attempted to remove an entry on the evidentiary worksheet in the Walker case. Bajwa received a Corrective Action Request from OCME relating to that incident, which generally means he was disciplined for the issue.

         The investigation into the OCME prompted by the events at Walker's trial revealed widespread issues within the agency, some of which Plaintiffs contend are relevant to this case. The investigation yielded two formal reports, one prepared by the Attorney General's office and one prepared by Andrews International, as well as some court proceedings. Drawing from those materials, the amended complaint alleges misconduct by several OCME employees. According to the complaint, the investigative reports describe Caroline Honse, the Controlled Substance Unit Laboratory Manager, as a poor manager who chose favorites among the OCME employees.[2] Kelley Georgi, a Forensic Evidence Specialist ("FES"), allegedly never received training to take-in or log evidence. Bailey, an Administrative Specialist, allegedly worked around narcotics at OCME even though she had no training or qualifications for such work. Bailey allegedly stashed evidence in her office and had an uncanny, singular ability to find evidence when no one else could locate it. One coworker claimed Bailey admitted to being a thief. Despite her own lack of credentials, Bailey allegedly trained Laura Nichols, who worked as a laboratory technician. In addition to his misconduct in the Walker trial, Bajwa, a forensic chemist at OCME, allegedly had a history of failing to document evidentiary observations in real time, maintain chain of custody, use proper sample sizes for testing, properly seal evidence, and maintain good work quality. None of these individuals, however, criminally was charged after the investigation. As to Defendant Patricia Phillips, the amended complaint only alleges Phillips worked as a chemist at the OCME Controlled Substance Unit.

         As to the other OCME Defendants, James Daneshgar, a lab worker at OCME, reported to investigators that Callery delegated day-to-day leadership of the OCME to Hal Brown. Brown, in turn, allegedly delegated the leadership to Honse, who missed work routinely. When the OCME attempted an internal audit after the Walker case, John Lucey, the lead auditor, allegedly failed to follow basic procedures. In Fall 2013, Robyn Quinn replaced Honse as lab manager.

         Certain OCME Defendants were disciplined or charged as a result of the investigation. Richard Callery, the Chief Medical Examiner and head of OCME, was suspended from his position pending the result of a criminal investigation into his activities as an expert witness in other jurisdictions. Farnam Daneshgar, the Laboratory Manager, was arrested for falsifying business records, possession of marijuana, and possession of drug paraphernalia. The amended complaint alleges Farnam Daneshgar also was under investigation for "dry labbing" evidence. Woodson, a forensic investigator, was arrested for drug trafficking, theft of a controlled substance, tampering with physical evidence, official misconduct, and unlawful dissemination of criminal history information.

         Following the investigation and the revelation of evidence that Woodson was indicted for charges related to the OCME investigation and may have had some contact with the evidence in Mr. Dollard's case, the Superior Court granted Mr. Dollard's motion for New Trial. The Court ordered retesting of the "brick" evidence discovered in Mr. Dollard's vehicle. The retest revealed the "bricks" actually were confectioner's sugar. The State then dismissed the charges against Mr. Dollard. Plaintiffs filed this action in January 2016, alleging Mr. Dollard's constitutional rights were infringed. Defendants Brown, Honse, Quinn, Lucey, Georgi, Nichols, Bajwa, Bailey, Phillips, J. Daneshgar (collectively with DHSS and the State of Delaware, the "DHSS Defendants"), Lloyd, Carroll, Sutton, McCarthy (collectively with DSP, the "DSP Defendants"), and Richard Callery filed motions to dismiss in January 2017, and the parties briefed and argued the motions. Defendants F. Daneshgar and Woodson (collectively, "Non-moving Defendants") did not move to dismiss.

         The Parties' Contentions

         The amended complaint advances claims for intentional infliction of emotional distress ("IIED"), respondent superior, and loss of consortium, as well as a claim under 42 U.S.C. § 1983 for deprivation of rights. Count I alleges all Defendants intentionally or recklessly engaged in outrageous conduct that caused Mr. Dollard's imprisonment, and count II alleges defendants Callery, Brown, Honse, DSP, DHSS, and the State are liable under the theory of respondeat superior for the actions of the other, individual Defendants. Count III asserts a Section 1983 claim against DHSS and the State because they were responsible for the OCME during the time period in question. Count IV alleges a Section 1983 claim against all other individual Defendants, except DSP, for depriving Mr. Dollard of due process and a fair trial as guaranteed by the U.S. and Delaware Constitutions. In Count V, Mrs. Dollard claims loss of consortium against all Defendants for the period of Mr. Dollard's imprisonment.

          The DHSS Defendants, DSP Defendants, and Callery (collectively, the "Moving Defendants") filed separate motions to dismiss. After briefing, Plaintiffs stipulated to the dismissal of all claims against the State and DHSS. Each of the remaining Moving Defendants' briefs raises similar arguments and defenses in support of their motions. Summarizing their arguments generally, Moving Defendants contend: (1) the amended complaint fails to state any claim against any of them; (2) Plaintiffs' claims are time-barred because the injury accrued more than two years before Plaintiffs filed their complaint; (3) Plaintiffs' claims against the state actors are barred by sovereign immunity because all the alleged conduct occurred while Defendants acted in their official capacity; and (4) any remaining claims against the Defendants are barred by qualified immunity or under the State Tort Claims Act (the "Tort Claims Act").


         Delaware's pleading standard under a 12(b)(6) motion to dismiss is minimal, but not meaningless.[3] When considering a motion to dismiss, the trial court will accept all well-pleaded factual allegations in the complaint as true, and will accept even vague allegations as "well-pleaded" if they provide defendants notice of a claim.[4] The Court will draw all reasonable inferences in favor of the plaintiff, denying the motion unless the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof.[5]

         Although the United States Supreme Court in the Twombly-Iqbal decisions enunciated a "plausibility" standard for pleadings in federal court, the lower "reasonable conceivability" threshold continues to apply in Delaware state courts.[6]With regard to alleged civil rights violations under Section 1983, however, there is disagreement whether a Delaware court should apply a plausibility or conceivability pleading standard.[7] In my view, settled conflict of laws principles require that this Court apply its own procedural rules, including pleading rules, to all claims, even those arising under federal law.[8] Applying the "conceivability" standard does not, however, render federal precedent meaningless to the analysis of this case. Under either standard, Plaintiffs must allege facts that place Defendants on notice of a claim. Notwithstanding its length, the Amended Complaint largely fails to do that.

         A. The amended complaint fails to state a claim for IIED against all defendants except Bailey and Bajwa.

         Plaintiffs argue all Defendants are liable for IIED due to the injuries caused by Mr. Dollard's deprivation of a fair trial and his false imprisonment. "A claim for intentional infliction of emotional distress . . . requires proof that the [defendant] intentionally engaged in extreme or outrageous conduct that caused severe emotional distress."[9] Outrageous conduct is "conduct that exceeds the bounds of decency and is regarded as intolerable in a civilized community."[10] "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery."[11]

         The amended complaint names a large number of defendants, each with varying degrees of involvement in Mr. Dollard's criminal case. With the exception of defendants Bailey and Bajwa, however, the amended complaint universally fails to allege facts against any other Moving Defendant sufficient to support an IIED claim. The Moving Defendants named in this count generally may be divided into the following categories: (1) the DSP officers, (2) the OCME supervisors, (3) the OCME employees not involved in the chain of custody in Mr. Dollard's case, and (4) the OCME employees involved in the chain of custody in Mr. Dollard's case.

         As to the DSP officers involved in Mr. Dollard's case, the amended complaint simply alleges that they investigated Mr. Dollard, pulled his car over, discovered a large amount of white, powdery substance in a hidden compartment that field-tested as cocaine, and turned the evidence over to the OCME. From those facts, and the fact the substance tested as sugar two years later, the Plaintiffs seek an inference that one or more DSP officers planted or tampered with evidence.

         Plaintiffs' allegations regarding the OCME supervisors are even more tangential as it relates to Mr. Dollard's criminal case. Nothing in the amended complaint alleges the OCME supervisors were involved in, or even aware of, Mr. Dollard's criminal case. Rather, the amended complaint merely regurgitates the mismanagement of the OCME detailed in the investigative reports by the Attorney General's office and Andrews International. From these reports, Plaintiffs seek an inference that the OCME supervisors' mismanagement of the office deprived him of a fair trial.

         Similarly, Plaintiffs' allegations regarding the OCME employees not in the chain of custody in Mr. Dollard's criminal case fail to permit any inference that those defendants' conduct caused Mr. Dollard's emotional distress. Plaintiffs allege these OCME employees were ill-prepared to perform their jobs and often failed to follow procedures. The amended complaint, however, does not allege they were involved in processing, transporting, or handling the evidence in Mr. Dollard's criminal case, or even were aware of his case.

         In their IIED claims against these first three categories of Moving Defendants, Plaintiffs essentially ask this Court to infer that because an evidentiary exhibit retested over two years after Mr. Dollard's arrest turned out to be confectioner's sugar, it is reasonable to infer that anyone in the chain of custody, or anyone who worked at the OCME office and was mentioned in the later investigation of that office, might have planted, dry-labbed, or otherwise tampered with the evidence. That inference, more accurately characterized as a "leap, " is not one this Court fairly may draw without some additional allegation tying the individual defendant to both the chain of custody and some history of misconduct that the Court may infer also occurred in this case.

         In contrast to the first three categories, Plaintiffs' allegations permit an inference, under Delaware's liberal pleadings standard, that Bailey and Bajwa engaged in outrageous conduct-specifically tampering with evidence in Mr. Dollard's case-that caused Mr. Dollard's emotional distress.[12] The amended complaint alleges Woodson was charged with trafficking cocaine and tampering with physical evidence. Bailey allegedly kept separate boxes of evidence even though she was not trained or authorized to handle evidence. Bajwa mishandled evidence in the Walker case and had a history of tampering with evidence. These defendants also specifically are tied to the chain of custody in Mr. Dollard's case. Woodson received Mr. Dollard's evidence from Officer McCarthy and deposited it at the OCME. Bailey received the evidence from Woodson and transported it to Bajwa, whose testing purportedly indicated the powder was cocaine. Two years later, the evidence was retested and identified as confectioner's sugar. Under the plausibility standard applicable at this stage of the proceedings, the amended complaint alleges sufficient facts for the Court to infer that Bailey and/or Bajwa may have tampered with the evidence in this case.

         B. The amended complaint fails to state a Section 1983 claim against all individual Defendants except Bailey and Bajwa.

         The amended complaint alleges all individual Defendants deprived Mr. Dollard of his due process rights and a fair trial through their policies and practices that were inconsistent with the proper handling of evidence.[13] Under 42 U.S.C. § 1983, "[e]very person who, under color of any statute . . . of any State . . . subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . ., "[14] To prevail, a plaintiff must demonstrate (1) deprivation of a right under the United States Constitution (2) by a person acting under color of State law.[15]

         To state a claim against a particular defendant under Section 1983, Plaintiffs must allege specific conduct by that defendant that violated Mr. Dollard's constitutional rights.[16] Plaintiffs may not plead in a collective fashion by naming a group of defendants without identifying "who is alleged to have done what to whom.''[17] Requiring individualized pleading for a Section 1983 claim does not, as Plaintiffs argue, improperly heighten Delaware's pleading standard from conceivability to plausibility. Federal law is clear that a Section 1983 claim must be stated against each individual defendant because such a claim may not be made against a state or its agencies.[18] Therefore, by requiring a plaintiff to plead the "who" and "what" of a Section 1983 claim, the courts avoid allowing a plaintiff to plead in the collective and thereby pursue a claim that, in effect, is one against the state. Although the level of specificity required may be slightly lower under Delaware's pleading standard, substantive federal law precludes the generalized "kitchen sink" approach employed in much of the amended complaint.

         Applying this standard, Plaintiffs have not pleaded a Section 1983 claim against any moving defendant except Bailey and Bajwa. The amended complaint employs a scattershot approach that fails adequately to allege any facts implicating any other moving DHSS Defendant in an action that conceivably violated Mr. Dollard's constitutional rights. The amended complaint discusses at length the OCME's negligent operation around the time Dollard first was arrested and tried. Notwithstanding the low pleading standard, however, Plaintiffs have alleged no circumstances where any moving defendant acting in their individual capacity, other than Bailey and Bajwa, was involved in Mr. Dollard's case or engaged in conduct that affected Mr. Dollard's rights. Nothing in the amended complaint alleges any of the other individual moving DHSS Defendants came in contact with or even was aware of Mr. Dollard's case.

         Plaintiffs seek to attach liability to the OCME supervisor defendants-i.e., Callery, Brown, and Honse-by arguing their allegedly negligent supervision permitted a custom at the OCME that deprived Mr. Dollard of his constitutional rights. In support of this theory, Plaintiffs first cite Parkell v. Danberg, [19] in which the Third Circuit Court of Appeals held supervisors can be liable under Section 1983 if they (1) establish a "policy, practice, or custom which directly caused the constitutional harm;"[20] or (2) "participated in violating plaintiffs rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations."[21] Plaintiffs, however, do not allege the OCME supervisors established a policy or custom designed to dry lab and falsify evidence, nor do they allege the supervisors had knowledge of and acquiesced to the violations. Rather, Plaintiffs allege that the supervisors deliberately were indifferent to the actions of their subordinates.[22] Deliberate indifference, however, is insufficient to establish supervisor liability under Parkell. Accordingly, the amended complaint fails to allege facts sufficient to establish supervisor liability under Parkell.

         In an effort to expand the scope of supervisor liability under Section 1983 to fit their custom-based argument, Plaintiffs cite Natale v. Camden Cty. Corr. Facility, in which the Third Circuit held:

[A] . . . custom may . . . exist where 'the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agent of the government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.[23]

         The Natale custom analysis, however, applies to entity liability, not supervisor liability.[24] Here, the amended complaint arguably alleges that Mr. Dollard was deprived of his constitutional rights due to the obvious inadequacy of OCME's practices and controls. At best, however, such a claim might succeed against DHSS under Natale's entity liability analysis. For reasons explained below, however, and as Plaintiffs already conceded by dismissing their claims against DHSS, Plaintiffs' claims against DHSS are barred by sovereign immunity.[25]

         Finally, the amended complaint fails to allege any conduct whatsoever on behalf of the DSP officers that permits an inference that they engaged in any conduct that violated Mr. Dollard's rights. The mere fact that the police arrested Mr. Dollard and collected evidence that two years later tested as confectioner's sugar does not permit an inference the DSP officers planted evidence or otherwise violated Mr. Dollard's constitutional rights.

         C. Plaintiffs' respondeat superior claims are moot.

          Count II of the amended complaint advances claims against defendants Callery, Brown, Honse, DSP, DHSS, and the State under the theory of respondent superior for employing or supervising the other, individual Defendants. On January 17, 2018, the Court granted a stipulation of dismissal for the State and DHSS, and all claims against those Defendants therefore are moot.[26] As Plaintiffs largely conceded at oral argument, [27] defendants Callery, Brown, and Honse are not the individual DHSS Defendants' employers and therefore cannot be liable under the theory of respondeat superior [28] Because I conclude the claims against the individual DSP Defendants fail to state a claim, Plaintiffs' respondeat superior claim against DSP is moot. All Plaintiffs' respondeat superior claims therefore fail to state a cognizable claim.

          D.Mrs. Dollard's loss of consortium claim is derivative and therefore only can proceed ...

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