Opinion
C.A. No. 01C-07-039
October 19, 2001
Mr. Jerry Lee Alston Mason E. Turner, Jr., Esquire
Richard W. Hubbard, Esquire
William W. Pepper, Sr., Esquire
ORDER
This 19th day of October, 2001, after consideration of the motions to dismiss submitted by Defendants Bayhealth Medical Center, the State Defendants and the Dover Defendants in the above-captioned matter, Plaintiff's answer thereto, as well as the arguments of the parties, it appears that:
The State Defendants are identified as Delaware Governor Ruth Ann Minner, Delaware Attorney General M. Jane Brady, the Delaware State Police, the Delaware Department of Correction Probation and Parole, the Capitol Police, and the State of Delaware Human Relations Commission.
The Dover Defendants are identified as the City of Dover and City of Dover Police Department.
Facts
1. On July 23, 2001, Plaintiff filed his pro se complaint in the above-captioned matter. This action appears to be an attempt to bring a class action. It raises unclear criminal or tort actions against various entities, and relates to the death of one Reginald Hannah while in police custody (as well as to events that allegedly took place, including investigation of his death, subsequently).
This Court has already determined that this is not a class action matter.
2. Defendant Bayhealth Medical moves this Court to dismiss this action under Delaware Superior Court Civil Rule 12(b)(6) for the reason that Plaintiff's complaint fails to state a claim upon which relief can be granted. Bayhealth further argues that there are no facts in the complaint under which it may be held liable to Plaintiff.
3. The State and Dover Defendants move to dismiss on the basis that Plaintiff lacks standing to maintain an action on the basis of Reginald Hannah's death. They allege Plaintiff fails the test for standing set out by the Supreme Court in well-settled litigation, the most prominent of which is Lujan v. Defenders of Wildlife, and the Delaware Supreme Court in Monsanto Co v. Aetna Casualty and Surety Co.
For the purposes of the opinion, Bayhealth does not allege the issue of standing.
504 U.S. 555 (1992).
Del. Super., 565 A.2d 268 (1989)
4. As to Bayhealth's motion, Plaintiff argues that there is no dispute regarding any material fact alleged in its complaint, and that the facts and statements raised therein "clearly suggest [that] the conduct of Bayhealth Medical does lead to the imposition, or the reasonable expectation . . . of liability."
Pl.'s Ans. to State's Motion to Dismiss at 3.
5. Regarding the State and Dover Defendants' motions, Plaintiff responds that he has standing to bring his claims on the basis of his status as an American citizen (and that he has raised various constitutional rights and issues which the Court recognizes), and claims this is "sufficient at law and sufficient clearly as a matter of law." This is what is pled in his complaint. Moreover, Plaintiff maintains that Lujan v. Defenders of Wildlife is not applicable to him because Plaintiff's suit was filed as a class action. He represents the class of black citizens that are "ethnically identifiable as of the black race and residing in Dover, Delaware. This Court has determined that this matter is not to be a class action.
Pl.'s Ans. to State's Motion to Dismiss at 3, 5.
Id. at 5.
I. Bayhealth Medical's Motion to Dismiss under Super. Ct. Civ.R. 12(b)(6)
6. It is necessary to determine if Plaintiff has alleged sufficient facts to recover under any reasonably conceivable set of circumstances susceptible to proof under the complaint. Delaware's Supreme Court (commenting upon the brief of a pro se appellant) has "recognize[d] that some degree of leniency should be granted for pro se appeals, [however,] at a minimum, briefs must be adequate so that this Court may conduct a meaningful review of the merits of appellant's claim."
Forst v. Wooters, Del. Supr., No. 181, 1993, 1993 WL 370865, Moore, J. (Sep. 9, 1993) (ORDER).
7. As this Court has previously stated: The test for sufficiency of a complaint challenged by a motion to dismiss under Superior Court Civil Rule 12(b)(6) is a general, broad test . . . "whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." When applying this test, all of the well-pleaded allegations must be accepted as true by the Court.
Crowhorn v. Nationwide Mut. Ins. Co., Del. Super., C.A. No. 00C-06-010, Witham, J. (Apr. 26, 2001) Order at 4-5.
Spence v Funk, Del. Supr., 396 A.2d 967, 968 (1978).
Id.
Here, even with leniency of the Court, Plaintiff does not appear to have alleged a cause of action under which he can recover against Bayhealth. Plaintiff raises vague allegations of constitutional violations and legal jurisdiction under 42 U.S.C. § 1981, 1983; however, a cause of action under one of these provisions may only be brought against a governmental agent, or state actor. Bayhealth is not a governmental agency against whom such actions can be brought.
Complaint at 3.
Jett v. Dallas Indep. School Dist., 491 U.S. 701 (1989)
9. Plaintiff also raises claims under various portions of Delaware's criminal code. These section do not apply to Bayhealth, nor do private causes of action exist under the cited sections of the criminal code.
Complaint at 2, 12, alleging legal jurisdiction under 11 Del. C. § 103 202, 467.
10. It is possible that Plaintiff is alleging tort claims against Bayhealth. It is difficult to establish a tort claim from the complaint, however, as Plaintiff does not allege the proper elements. For example, many torts require at least one of the three elements of duty, causation, or damages. Here, Plaintiff has alleged none of these elements as to Bayhealth.
11. As to the element of duty, Plaintiff's complaint simply alleges that "[t]he listed Defendants all share a social and public responsibility for the conduct of the police as an agency." The threshold establishment of a duty is a matter of law. Brower v. Metal Indus. No duty has been shown on the part of Bayhealth to the Plaintiff in this case. If Bayhealth had a duty respecting this matter, it was a duty applicable to Mr. Hannah or to permissible claimants under statute or common law only.
Complaint at 4.
Del. Supr., 719 A.2d 941 (1998).
12. The Plaintiff states that it is premature in terms of the complaint process to conclude the complaint failed (since it might become clear later on that Bayhealth was negligent, and then Plaintiff would not have joined this defendant). This Court's view is that many of Plaintiff's allegations could very well result in this Court permitting impermissible fishing expeditions to create causation. The Court will not allow that to take place. Plaintiff has not alleged the element of causation as to Bayhealth.
The only allegation as to causation in this case is that Mr. Hannah was alive, in critical condition, when he was brought to Bayhealth/Kent General, but then he "`died shortly after arriving.'" Complaint at 9. In his response to the motion to dismiss, Plaintiff states "there are statements that suggest the conduct of Bayhealth Medical could lead to imposition of liability . . . such proof cannot be reasonably known without the process of discovery and interogatories (sic)." Pl.'s Ans. to Motion to Dismiss at 4.
13. As to the element of damages and relief, Plaintiff's only alleged injury appears to be that he suffers a "personal fear of [a] non-arrest interaction with the police."
Complaint at 4. Plaintiff also states that the purpose of his complaint is "to expose errors in the Attorney General's report of June 1, 2001, and to identify a specific cause to impound a grand jury." Moreover, he seeks "the impoundment of a Grand Jury to achieve further fact finding due to discrepancies in terms of the time of death and sequence of events leading to the death of Mr. Hannah." He seeks new police protocols and a police review board. He requests freedom of information documents from the police, and indictments of police officers.
14. None of the relief sought may be used to establish the element of damages for a tort claim. Moreover, there is no private cause of action to impound a grand jury, indict officers, or to implement new police policies, all of which Plaintiff apparently seeks to be ordered. Even if there is some remote possibility that an extraordinary remedy exists, such as a Writ of Mandamus, such remedy would not lie against Bayhealth, a private entity. II. The State and Dover Defendants' Motion to Dismiss
15. For the above-noted reasons and rationale, this Court will also dismiss the cause of action against the Dover Defendants and the State Defendants.
16. Furthermore, Plaintiff does not have standing to assert claims against the Dover Police or State defendants. This Court has decided that Claimant's action has not been certified as a class action; therefore, the Plaintiff must have standing in order to recover as to any personal claims.
17. The doctrine of standing requires (1) that Plaintiff sustained an "injury in fact." This is described as the invasion of a legally protected interest which is (a) concrete and particularized to the Plaintiff and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and conduct complained of and; (3) it must be likely that the injury will be redressed by a favorable decision.
Lujan at 560-561.
18. Where the Plaintiff has not been injured personally, standing under this test is harder to establish. Plaintiff has not established the requisite injury in his complaint in order to maintain a personal cause of action against the State or Dover Defendants.
Id.
19. Therefore, for the foregoing reasons, the Motions to Dismiss of Bayhealth Medical, the State Defendants, and the Dover Defendants are granted. IT IS SO ORDERED.
ORDER
This 19th day of October, 2001, upon consideration of the pleadings and arguments of the parties, it appears that:1. Plaintiff has identified this matter as a class action in his complaint. Plaintiff has not, however, moved this Court for class certification, nor has he averred facts showing that the prerequisites for certification are met (as required under Superior Court Civil Rule 23(a)); therefore, as of this date, Plaintiff's action has not been certified as a class action.
2. The Court can at any time, make the determination regarding class certification, preemptively, and the Court is required to do so in a prompt manner. The Court is not subject to any party making the motion. It can make the class certification decision in its discretion.
3. In order for a class action to be conditionally certified under Delaware Superior Court Civil Rule 23(a), certain criteria must be satisfied before the action may be pursued on behalf of a class. One or more members of a class may sue, or be sued, as representatives on behalf of all of the designated class if: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties fairly and adequately represent the class; and (4), the focus of the analysis here, the plaintiff must show that his representation will fairly and adequately protect the interests of the class.
The circumstances for maintaining a class certification are covered in Delaware Super. Ct. Civ.R. 23(b). The Court must determine whether a class action can be maintained as soon as practicable.
Delaware Super. Ct. Civ.R. 23(a).
4. The Court finds that to certify the proposed class all certification requirements must be met (that is the representative must also comply with those requirements). The four prerequisites are required to certify the class, and the representative of the class must, of course, be a member of the class.
5. In this case, the Court is going to zero in on the representative parties-will the representative parties fairly and adequately represent the class? The focus is going to be on the adequacy of protection. Under Super. Ct. Civ.R. 23(a)(4), the plaintiff must show that his representation will fairly and adequately protect the interests of the class. The Court does not need to examine the other remaining prerequisites, under Super. Ct. Civ.R. 23(a), if one of the prerequisites cannot be maintained.
6. When determining the adequacy of representation, the Court will consider the quality of the plaintiff's case as well as the caliber of legal representation and the issues of nonfeasance by the plaintiff. Class actions are very complicated matters. In view of the fact that the plaintiff has filed this action informa pauperis, and has difficulty in meeting procedural requirements, the Court cannot find that Plaintiff has the resources and legal expertise to fairly and adequately protect the interest of the class. The Court has allowed Plaintiff to pay his current court costs by making payments on a monthly basis. Plaintiff will incur substantial additional expense in order to have this matter certified, and to keep this matter certified.
L. C. Parker Realtors, Inc. v. Dutch Village, Inc., Del. Super., 174 A.2d 320 (1961).
7. Class action litigation, by definition, is legally demanding on the part of an attorney as well as the class representative. In this case, we have the class representative acting as his own attorney. If the plaintiff were going to maintain this as a class action, plaintiff would have to properly identify all members of the class that plaintiff describes as "American citizens of color" (a large class, and plaintiff testified, as well, that he is not really sure of the dimensions of the class).
At the hearing on the motion to dismiss plaintiff's complaint, the plaintiff testified that he was trying to create a class of American citizens of color. This broad-based class definition certainly raises issues with respect to the "commonality" and "typicality" requirements of Super. Ct. Civ.R. 23(a), and regarding the "predominance" requirement for maintenance of the class action under Super. Ct. Civ.R. 23(b); however, the Court does not reach these issues as the certification decision here can be decided on the issue of adequacy of representation under Super. Ct. Civ.R. 23(a).
8. Plaintiff would not only have to identify the class members, but would have to communicate with them. He would have to establish procedures under which he would be able to obtain acceptance as well as exclusion from the proceeding, as may be deemed appropriate, and determine what would be acceptable in resolving the controversy. This will be expensive in both time and monetary cost. A person proceeding informa pauperis, by definition alone, is not going to have the funds to support a class action.
The class representative must perform vigorous, tenacious prosecution throughout. Gonzales v. Cassidy, 5th Cir., 474 F.2d 67 (1973). The representative must be fully qualified to handle the case. Legal ability and training are important. Id. Considerations include the ability of the representative to bear costs, as the plaintiff must bear the substantial costs of notice to the class. For example, due process requires that notice be made in the best method possible under the circumstances, which can include costly personal notice to all members instead of notice by publication. Eisen v. Carlisle Jacquelin, 417 U.S. 156 (1974); Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978).
9. The plaintiff has not set forth sufficient facts to allow this Court to appoint him or certify him as the class representative.
10. For the foregoing reasons, under Super. Ct. Civ.R. 23(a)(4), this Court will not conditionally certify this as a class action; therefore, this case will not proceed as a class action. IT IS SO ORDERED.
ORDER
This 19th day of October, 2001, after consideration of Plaintiff's motion and argument, it appears that:FACTS
1. The pertinent facts are as follows. On August 16, 2001, the Plaintiff in the above-captioned matter filed a Motion to Recuse the Assigned Judge for Cause.
Subsequently, Plaintiff filed a Second Motion to Recuse which was stricken by Order of this Court dated September 27, 2001, under Superior Court Civil Rule 12(f) for matters redundant, immaterial, impertinent or scandalous. In that second motion, Mr. Alston submitted material which was not authorized to be filed before this Court.
2. Plaintiff alleges that the assigned trial Judge should recuse himself because a cause of action has been filed by the Plaintiff in the 3rd Circuit Court of Appeals. That Federal cause of action purportedly includes a charge against this Judge for "wrongful actions," decisions related to an earlier unrelated proceeding instituted in Superior Court by the Plaintiff. This Judge presided over the previous State court matter which was decided adversely against Plaintiff. For these reasons, Plaintiff requests "to be heard before a trier of fact and law who has not demonstrated bias and indiscretion against Plaintiff."
3. Although not specifically stated in Plaintiff's motion, the apparent basis for recusal is Delaware Judges' Code of Judicial Conduct Canon 3(C).
DISCUSSION
4. A brief discussion may be appropriate. Canon 3(C) of the Delaware Judges' Code of Judicial Conduct provides that judges must be free from personal bias, and must be disqualified in a proceeding in which the judge's impartiality might reasonably be questioned.
Canon 3(C) of the Delaware Judges' Code of Judicial Conduct provides in pertinent part: (1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
5. In Los v. Los, the Delaware Supreme Court set out a two-prong test to insure against personal bias, or the appearance of bias, under Canon 3(C). First, the Judge must, as a matter of subjective belief, be satisfied that he or she is free of bias or prejudice concerning the Plaintiff. Second, the Court must ensure that there is not an objective appearance of bias that is sufficient to cast doubt upon the Court's impartiality.
Del. Supr., 595 A.2d 381, 384-385 (1991).
6. In applying the analysis set forth in Los to the instant case, I find that Plaintiff's Motion to Recuse must be denied.
7. Here, the Court is satisfied that the first prong of the Los test is met. This Court, as a matter of subjective belief, determines that it is able to adjudicate the issues before it in a disinterested manner with no bias or prejudice toward any of the parties-regardless of the Federal action or prior rulings in the Superior Court related to this Plaintiff in any other matters before this Court that may have been filed previous or subsequent to the filing of the instant litigation.
8. The second Los prong is also satisfied. This Court has performed an objective analysis to insure that there is no appearance of bias under Delaware law. Plaintiff suggests that this Court cannot appear unbiased because Plaintiff has made allegations against this Judge in another action, or in an action filed subsequent to the instant case. "[T]here is a compelling policy reason for the Judge not to disqualify himself at the behest of a party who initiates litigation against a judge. In the absence of genuine bias, a litigant should not be permitted to `judge shop' through the disqualification process." Certainly, it may be viewed that once a party asks for recusal, then files an action against the Judge (apart from the case at hand) such can be viewed as judge shopping, and the Court does view it as such in this case.
Id. at 385.
9. Moreover, simply because this Judge may have decided adversely against Plaintiff in a prior action, does not create sufficient appearance of bias to require recusal by this Judge in the present suit.
Weber v. State, Del. Supr., 547 A.2d 948, 951 (1988).
10. For example, in Weber v. State, the criminal defendant was charged with various crimes including kidnaping, theft and assault. The judge assigned to his current trial had presided over the defendant's previous trial for second degree murder. In that case the defendant had been convicted in the previous trial. For this reason, the defendant wanted the judge recused because he "would feel `more comfortable' if another judge presided." The Delaware Supreme Court stated: the bias envisioned by Canon 3C(1) is not created merely because the trial judge has learned facts or made adverse rulings during the course of [another] trial.
Id.
Id. at 952 (citations omitted).
* * *
There is no general rule that a judge is disqualified per se because of an adverse decision in a former case involving entirely different and unrelated . . . charges [but involving] the same party.
This reasoning is equally persuasive with respect to the civil plaintiff in this case.
11. Therefore, for the reasons set forth above, Plaintiff's Motion to Recuse the Assigned Judge for Cause Stated is denied.
IT IS SO ORDERED.
* * *
(e) . . . or has expressed an opinion concerning the merits of the particular case in controversy.