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Shotwell v. Stafford

United States District Court, D. Delaware

March 25, 2019

MARK J. SHOTWELL, Plaintiff,


         Presently 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).


         Plaintiff brings numerous claims based on the search of his three cell phones conducted by the Middletown Police Department ("the Police Department") in February 2016.[1]

         On 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)).

         Later 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).

         Officer 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.).

         Officer 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).

         Plaintiff 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)).

         Officer Wharton applied for and obtained another warrant on February 1, 2016.[2] 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).

         From 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.


         Plaintiff, 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).

         Plaintiff 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).

         Defendants 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).

         Plaintiff 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.

         Plaintiff 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).

         Now, 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).

         III. ANALYSIS

         The 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"), [3] Police Chief Michael Iglio, and Officer Wharton.[4] 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)[5] will follow. (11/19/18 Status Conf. at 27:20-29:20).

         A. Rule 15(a)

         Federal 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).

         1. ...

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