United States District Court, D. Delaware
KENNETH E. RANDOLPH, Plaintiff,
DAVID HENDERSON, et al., Defendants.
Kenneth E. Randolph, Central Violation of Probation Center,
Smyrna, Delaware. Pro Se Plaintiff.
Patrick Connell, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Counsel for Defendants.
NOREIKA U.S. DISTRICT JUDGE
Kenneth E. Randolph ("Randolph"), an inmate at the
Central Violation of Probation Center in Smyrna, Delaware,
proceeds pro se and has been granted leave to
proceed in form a pauperis. He filed the Complaint
pursuant to 42 U.S.C. § 1983 claiming violations of his
constitutional rights. (D.I. 3, 7, 17).
alleges violations of his right to due process during a
parole revocation hearing. On May 15, 2015, the Court
screened Plaintiffs pleadings and dismissed one defendant.
(D.I. 8, 9). Plaintiff seeks, among other things,
compensatory and punitive damages. The Court liberally
construed Plaintiffs pleadings and allowed him to proceed
against the Delaware Board of Parole defendants, and a
service order issued. (D.I. 9). Two defendants, Richard
Negley ("Negley") and Ralph Libarratore
("Libarratore"), signed the return of waiver of
service of summons. (D.I. 11, 12). The other two defendants,
David Henderson ("Henderson") and Marlene
Lichtenstadter ("Lichtenstadter"), did not. (D.I.
after the United States Marshals Service advised the Court
that Henderson and Lichtenstadter had not returned the
waivers of service of summons, on August 10, 2015, all four
defendants filed a motion to stay. (D.I. 15). The motion
advised the Court that Plaintiff sought to litigate the same
claims in the Superior Court of the State of Delaware in and
for New Castle County, and a stay was sought pending a
resolution of the Superior Court action to avoid duplicitous
litigation and pending perfection of proper service upon all
named defendants. (Id.). On September 30, 2015, the
Court granted the motion to stay and ordered the parties to
advise it of the status of the State court matter. (D.I. 19).
The Court ordered further status updates of the State court
matter on August 23, 2016, December 1, 2016, and April 17,
2017. (D.I. 27, 30, 34).
December 3, 2015, the Superior Court entered an order
dismissing the case. See Randolph v. Henderson, C.A.
No. N15M-04-060-CEG at BL-28 (Del. Super.) Plaintiff appealed
to the Delaware Supreme Court. Id. at BL-29. On
April 23, 2017, Plaintiff advised the Court that the case
remained pending and that on February 6, 2017, the Delaware
Supreme Court had affirmed and remanded the matter, and
appointed counsel. (D.I. 35). On April 28, 2017, Defendants
advised the Court that the Delaware Supreme Court issued a
decision affirming the dismissal of Plaintiff's civil
lawsuit, but remanded the matter to the Superior Court for
appointment of counsel because Plaintiff raised concerns
about his parole revocation process. (D.I. 36). Defendants
posited that Plaintiff's federal lawsuit made essentially
identical claims was not barred by the doctrine of res
judicata. (Id.) Thereafter, the Court lifted
the stay and ordered the parties to brief the issue of
whether Plaintiff's claims were barred by reason of claim
preclusion (i.e., res judicata). (D.I. 37).
filed a brief addressing the issue and Defendants filed a
motion to dismiss for insufficiency of service of process and
for summary judgment on the issue of claim preclusion. (D.I.
44, 45, 46). Plaintiff opposed Defendants' motion and
filed a request for counsel. (D.I. 48, 47). Given the posture
of the case, the Court denied Defendants' motion to
dismiss for insufficient service of process and denied
Defendants' motion for summary judgment on res
judicata grounds noting that there had been no final
judgment on the issue of whether Plaintiff was afforded his
due process rights during his parole hearing. (D.I. 49, 50).
The matter was stayed “while the State case remains
pending.” (D.I. 49 at 7). Specifically, the December
20, 2017 order states, “This matter is stayed pending
resolution of the case filed by the plaintiff in the Superior
Court of the State of Delaware in and for New Castle County,
No. N15M-04-060 CEB.” (D.I. 50 ¶ 3).
26, 2018, the Court lifted the stay upon judicial notice that
the Superior Court case had been dismissed with prejudice on
June 19, 2018. (D.I. 52). Unbeknownst to the Court, however,
Plaintiff appealed the dismissal to the Delaware Supreme
Court on July 20, 2018, where the appeal remains pending.
See Randolph v. State of Delaware, No. 371, 2018
(Del.). In the meantime, Defendants renewed their motion to
dismiss. (D.I. 56, 57). Plaintiff did not file a response to
the motion. He, however, requests counsel and in doing so
advises the Court that he has been transferred from a Level V
access facility to a Level IV access facility, and he does
not have access to a law library. (D.I 63).
review of the file, the Court concludes that the stay in this
matter was prematurely lifted. The State court case is
pending before the Delaware Supreme Court, the matter remains
pending, and has yet to be decided by the Delaware Supreme
Court; a posture somewhat similar to that when the Court
denied Defendants' first dispositive motion.
(See D.I. 45, 49, 50).
the Court will deny Defendants' motion to dismiss without
prejudice to renew upon the resolution of Delaware Supreme
Court No. 371, 2018. The Court will stay this matter while
the State case remains pending.