Submitted: January 16, 2018
Defendants Callery, Division of State Police, and Department
of Health and Social Services' Motion to Dismiss: Granted
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,
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").
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
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.
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.
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,  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.
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. 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.
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.
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
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.
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.
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").
pleading standard under a 12(b)(6) motion to dismiss is
minimal, but not meaningless. 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. 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
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.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. 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. 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.
The amended complaint fails to state a claim for IIED against
all defendants except Bailey and Bajwa.
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." Outrageous conduct is "conduct that
exceeds the bounds of decency and is regarded as intolerable
in a civilized community." "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
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.
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.
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.
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.
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.
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. 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.
The amended complaint fails to state a Section 1983 claim
against all individual Defendants except Bailey and
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. 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. . ., " 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.
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. 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.'' 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. 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.
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.
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,  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;" 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." 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. Deliberate indifference, however, is
insufficient to establish supervisor liability under
Parkell. Accordingly, the amended complaint fails to
allege facts sufficient to establish supervisor liability
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.
Natale custom analysis, however, applies to entity
liability, not supervisor liability. 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.
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.
Plaintiffs' respondeat superior claims are
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. As Plaintiffs largely
conceded at oral argument,  defendants Callery, Brown, and
Honse are not the individual DHSS Defendants' employers
and therefore cannot be liable under the theory of
respondeat superior  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