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Duygun v. Allen

Superior Court of Delaware

August 1, 2019

EMIE I. DUYGUN, Plaintiff,
v.
OFFICER ALLEN and NEW CASTLE COUNTY POLICE DEPARTMENT, Defendants.

          Submitted: June 20, 2019

         Upon Defendant's Motion to Dismiss GRANTED

          ORDER

          THE HONORABLE ANDREA L. ROCANELLI JUDGE

         Upon consideration of the Motion to Dismiss filed by Defendants Officer Allen and New Castle County Police Department ("NCCPD"); the response thereto filed by Plaintiff Emie I. Duygun ("Plaintiff"); the facts, arguments, and legal authorities set forth by the parties; statutory and decisional law; and the entire record in this case, the Court hereby finds as follows:

         1. On April 29, 2017, NCCPD officers, including Officer Allen, responded to a domestic call at the residence of Yen "Annie" Shih. Plaintiff had arrived at the residence early the morning of April 29, 2017 requesting to see his children. At the time of the incident, Shih claimed to have an order of protection from abuse ("PFA Order") that required Plaintiff to stay 100 yards away from Shih and her residence.

         2. The PFA Order did not explicitly provide the time of expiration but only stated: "THIS ORDER SHALL EXPIRE ON 04/29/2017." Recognizing a question existed concerning the exact time of expiration, NCCPD contacted the Justice of the Peace Court for guidance. A magistrate of the Justice of the Peace Court told officers that the PFA Order was still active and would not expire until the end of the day on April 29, 2017.

         3. Based upon this information, Officer Allen believed there was probable cause that Plaintiff was in violation of the PFA Order. Officer Allen handcuffed and escorted Plaintiff to a police vehicle for transport to NCCPD.

         4. NCCPD subsequently responded to the Justice of the Peace Court to obtain a warrant charging Plaintiff with Criminal Contempt of the PFA Order. The Justice of the Peace Court declined to approve the warrant because the court could not ascertain an expiration time on the PFA Order.[1]

         5. No charges were filed and Plaintiff was immediately released from NCCPD custody. Plaintiff alleges he spent five hours in a cell before being released.

         6. On April 30, 2019, Plaintiff filed a civil lawsuit against Officer Allen and NCCPD alleging theft, illegal arrest, and false imprisonment in connection with Plaintiff's interaction with Officer Allen and other NCCPD officers on April 29, 2017.

         7. On June 6, 2019, Officer Allen and NCCPD filed the Motion to Dismiss that is currently before the Court on the grounds that Plaintiff is not entitled to the requested relief under any reasonably conceivable set of circumstances susceptible of proof.[2] On June 20, 2019, Plaintiff filed a response in opposition to the Motion to Dismiss.

         8. On a motion to dismiss for failure to state a claim upon which relief can be granted, [3] the Court must read the complaint generously, accept all well-pled allegations contained therein as true, and draw all reasonable inferences in a light most favorable to the non-moving party.[4] A complaint is well-pled if it puts the opposing party on notice of the claim being brought against it.[5] Dismissal is warranted only "when the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."[6] Allegations that are merely conclusory and lacking factual basis will not survive a motion to dismiss.[7]

         9. Plaintiff names NCCPD as a defendant in this lawsuit. Nevertheless, NCCPD is a division of New Castle County and may not be sued as a separate entity.[8] Accordingly, NCCPD must be dismissed as a party.

         10. Moreover, even if the Complaint were amended to name New Castle County as a defendant, New Castle County is similarly immune from liability. Pursuant to the County and Municipal Tort Claims Act ("Act"), "all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages"[9] unless the alleged tortious acts or omissions resulted in "property damage, bodily injury or death."[10] In cases where liability may exist, notice must be provided to the County within one (1) year of the date of an alleged injury as a prerequisite to filing a lawsuit.[11] Here, Plaintiff's illegal arrest and false imprisonment claims sound in tort and Plaintiff seeks recovery of monetary damages. Nevertheless, Plaintiff does not claim property damage, bodily injury, or death, and Plaintiff fails to allege that his claims meet the statutory exemptions from immunity nor the ...


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