United States District Court, D. Delaware
MARK J. SHOTWELL, Plaintiff,
DETECTIVE JOSHUA STAFFORD, Defendant.
before the Court is Plaintiff s motion for leave to file a
third amended complaint. (D.I. 110). I have considered the
parties' briefing. (D.I. Ill. 118, 119).
brings numerous claims based on the search of his three cell
phones conducted by the Middletown Police Department
("the Police Department") in February
October 13, 2015, Officer Michele Wharton was dispatched to a
Delaware residence. The reporting person ("Ms.
Doe") stated that she was contacted via phone by her
ex-boyfriend, Plaintiff, in violation of an active Protection
from Abuse order ("PFA"). Officer Wharton confirmed
that there was an active PFA stating that Plaintiff was not
to have any contact with Ms. Doe by any means. Ms. Doe told
Officer Wharton that she received a call from a private
number and heard Plaintiffs voice. The voice told her,
"We need to talk. I know you're going through my
computer." Ms. Doe also stated that approximately two
hours earlier, she received a call from Plaintiffs mother.
Plaintiffs mother told Ms. Doe that Plaintiff had called her
upset and asked that Ms. Doe stop going through Plaintiffs
computer. (D.I. 11-1 at 9-10 (10/13/2015 Police Report)).
that day, Officer Wharton called Plaintiff on a recorded
phone line at the Police Department. Plaintiff told Officer
Wharton that he believed Ms. Doe had programmed a code into
his computer to spy on him. He denied calling her but stated
that he asked his mother to call for him. After Officer
Wharton explained that that was also a violation of the PFA,
he stated that he had just vented to his mother. Officer
Wharton told Plaintiff that she would be obtaining a warrant
for his arrest and Plaintiff responded that he would turn
himself in. (Id. at 10).
Wharton then called Plaintiffs mother from the same recorded
phone line. Plaintiffs mother stated that Plaintiff called
her very upset because he thought Ms. Doe did something to
his computer. She also stated that she then called Ms. Doe to
ask about the computer. (Id.).
Wharton compiled these events in an affidavit of probable
cause and submitted it with a warrant application. A warrant
was issued for the search and seizure of "a Cell phone
belonging to [Plaintiff] and the forensic examination of the
phone there of to obtain phone call history from
10/13/15." (Id. at 1-2).
turned himself in to the Police Department on October 16,
2015. Upon arrival, he indicated that he owned multiple cell
phones, one or more of which were in his vehicle parked in
the Police Department parking lot. Officer Jordan Douglass
submitted that information in an affidavit and obtained a
warrant for the search and seizure of "cell phone(s)
belonging to [Plaintiff]," including a description of
his vehicle to be searched. (Id. at 5-8). Three cell
phones were seized-one from Plaintiffs person and two from
his vehicle-and placed in evidence. (Id. at 13
(10/16/15 Police Report)).
Wharton applied for and obtained another warrant on February
1, 2016. The warrant was issued for the three cell
phones in evidence "belonging to [Plaintiff] and the
forensic examination of the phone there of to obtain call
history from 10/13/15, used or intended to be used for the
harassment of the victim and in violation of a PFA
order." (D.I. Ill. Ex. A ¶ 51).
February 2 to February 3, 2016, Detective Joshua Stafford
performed a forensic examination on each of Plaintiff s three
cell phones. The examination was done with a device and
software known as the Cellebrite System. (Id.
¶¶ 54, 56, 58). The Cellebrite System cannot set
search parameters beyond selecting one of three extraction
methods. The narrowest method, "logical" or
"base" extraction, captures SMS messages, contacts,
call logs, media, and app data. (Id. ¶¶
15-19). Plaintiff alleges that, per the February 1, 2016
warrant, the forensic examination should have been limited to
"call history from 10/13/15," meaning the
Cellebrite extractions were overbroad. (Id.
¶¶ 60-61). Therefore, Plaintiff claims that the
Police Department's use of the Cellebrite System, and
subsequent actions based on the Cellebrite results, violated
his Fourth Amendment rights.
proceeding pro se, filed an initial complaint on
June 15, 2016 against the State of Delaware. (D.I. 2).
Plaintiff sought damages under 42 U.S.C. § 1983, among
other relief, for violations of his Fourth Amendment rights.
I dismissed the complaint based on the State of
Delaware's immunity from suit and gave Plaintiff leave to
amend to name the proper defendants. (D.I. 10).
filed a first amended complaint ("FAC") on October
31, 2016. (D.I. 11). The FAC named Defendants Delaware
Department of Justice, the Police Department, Officer
Douglass, Officer Wharton, and Detective Stafford. I
dismissed Defendant Delaware DOJ as immune from suit but
allowed Plaintiff to proceed against the remaining
Defendants. (D.I. 12).
moved to dismiss the FAC under Federal Rule of Civil
Procedure 12(b)(6). (D.I. 21). I granted the motion with
respect to all claims except the § 1983 claims against
Detective Stafford. (D.I. 25 at 5-7). I dismissed the claims
against the Police Department because it is an arm of the
local municipality, but gave Plaintiff leave to amend to
substitute the proper party, the Town of Middletown
("the Town"). (Id. at 5). It was unclear
whether the FAC also raised supplemental state claims for
defamation and intentional infliction of emotional distress.
Therefore, I considered the claims not raised, but gave
Plaintiff leave to amend to raise those claims if he had
intended to do so. (Id. at 7).
filed a second amended complaint ("SAC") on August
25, 2017. (D.I. 27). The SAC again names Detective Stafford
and the Police Department as defendants. (Id. at 1).
The SAC also appears to raise supplemental state claims for
"defamation and intentional or negligent infliction of
emotional distress." (Id. at 3). Defendants
filed an answer to the SAC on September 7, 2017.
moved to request appointment of counsel on October 30, 2017.
(D.I. 31). I denied Plaintiffs motion without prejudice to
renew. (D.I. 75 ¶ 5). Plaintiff retained counsel on June
19, 2018. (D.I. 87).
with assistance of counsel, Plaintiff moves for leave to file
a third amended complaint ("TAC"). (D.I. 110). The
parties have conducted substantial discovery, but no trial
date has been set. (D.I. 30). Except for some discovery
deadlines, all dates have been vacated pending the setting of
a schedule at a scheduling conference. (D.I. 98 at 1).
proposed TAC makes substantial changes to the SAC. Per my
order, the SAC was limited to § 1983 claims against
Detective Stafford and the Town (incorrectly named as the
Police Department), and supplemental claims for defamation
and intentional infliction of emotional distress. (D.I. 25,
27). The proposed TAC adds § 1983 claims against the
Mayor and Council of Middletown ("the Mayor and
Council"),  Police Chief Michael Iglio, and Officer
Wharton. Plaintiff also brings supplemental claims
for violation of the Delaware Constitution, invasion of
privacy, intentional infliction of emotional distress, return
of property under state and federal law, and conversion.
Plaintiff is no longer bringing a defamation claim. (D.I. 111
at 3-4, Ex. A). As discussed at the November 19, 2018 status
conference, I believe Plaintiffs § 1983 claims (Counts I
and III) should drive the amendment analysis. The
supplemental claims (Counts II, IV-IX) will follow.
(11/19/18 Status Conf. at 27:20-29:20).
Rule of Civil Procedure 15 governs amendments to the
pleadings generally. Rule 15(a)(2) provides that "[t]he
court should freely give leave [to amend] when justice so
requires." Fed.R.Civ.P. 15(a). "Among the grounds
that could justify a denial of leave to amend are undue
delay, bad faith, dilatory motive, prejudice, and
futility." Shane v. Fauver, 213 F.3d 113, 115
(3d Cir. 2000). "[Prejudice to the non-moving party is
the touchstone for the denial of an amendment."
Mullin v. Balicki, 875 F.3d 140, 150 (3d Cir. 2017).