EMIE I. DUYGUN, Plaintiff,
OFFICER ALLEN and NEW CASTLE COUNTY POLICE DEPARTMENT, Defendants.
Submitted: June 20, 2019
Defendant's Motion to Dismiss GRANTED
HONORABLE ANDREA L. ROCANELLI JUDGE
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:
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.
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
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.
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.
charges were filed and Plaintiff was immediately released
from NCCPD custody. Plaintiff alleges he spent five hours in
a cell before being released.
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.
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. 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,  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. A complaint is
well-pled if it puts the opposing party on notice of the
claim being brought against it. Dismissal is warranted only
"when the plaintiff would not be entitled to recover
under any reasonably conceivable set of circumstances
susceptible of proof." Allegations that are merely
conclusory and lacking factual basis will not survive a
motion to dismiss.
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. Accordingly, NCCPD must be
dismissed as a party.
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" unless the alleged tortious acts or
omissions resulted in "property damage, bodily injury or
death." 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. 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 ...