Opinion
CA. No.: N15C-07-036 FSS
11-04-2015
STEPHEN ROBERT DIGIOVANNI (a/k/a STEPHEN R. DEJOHN), Plaintiff, v. DENNIS DESILET, MELISSA KEARNEY, CURT SHOCKLEY, ROBERT M. COUPE, BUREAU OF COMMUNITY CORRECTIONS, DELAWARE DEPARTMENT OF CORRECTION, Defendants.
pc: Joseph C. Handlon, Deputy Attorney General Stephen R. DiGiovanni, pro se (via First Class Mail)
ORDER
Upon Appeal from Commissioner's Findings of Fact and Recommendations - Defendants' Joint Motion to Dismiss - GRANTED.
1. This is an appeal by Defendants from a commissioner's Findings of Fact and Recommendations, denying their joint motion to dismiss Plaintiff's libel complaint.
2. Plaintiff sued his former probation officer (Desilet), the officer's supervisor (Kearney), their supervisors (Shockley and Coupe), and the State agency for whom they worked (Bureau of Community Corrections and Department of Correction), because Desilet allegedly submitted a libelous progress report to the court. In the report, Desilet referred to Plaintiff's "arrogant attitude and defiant personality." Specifically, the report to the court stated:
While [Plaintiff]'s arrogant attitude and defiant personality greatly complicated his supervision plan, resulting in a total of 454 case note entries, he has otherwise satisfied the conditions of his probation and meets the requirements for a MED [maximum expiration date] discharge.Plaintiff further alleges the report has cost him "a high paying job," and other financial damage, as well as damaging his reputation.
3. Although the Complaint does not call Desilet's characterizing Plaintiff's attitude and Desilet's reference to the 454 case notes untrue, the Complaint calls them:
a malicious statement, coldly calculated and carefully crafted to deceptively misrepresent the truth of the plaintiff's probation.For present purposes, the court will not parse that artful allegation. Instead, the court will infer that Plaintiff is neither arrogant nor defiant, there are not 454 case notes, and Desilet's report to the court was intended to falsely portray Plaintiff as "a problem probationer" with a bad attitude. While questionable, those assumptions are required at this point.
4. Under the rules governing appeals from a commissioner's ruling on a case-dispositive motion, such as a motion to dismiss, the court must review Appellants' objections to the commissioner's findings and recommendations de novo.
Super. Ct. Civ. R. 132(a)(4).
Id. 132(a)(4)(iv).
5. For present purposes, the court assumes all non-conclusory factual allegations as true and reads reasonable inferences into the allegations, but the court may ignore vague generalities. So, for example, the court does not have to assume that prospective employers somehow asked for a copy of the offending report and Defendant, as opposed to Plaintiff, turned it over to them, if those facts have not been plead.
See discussion supra Paragraph 4.
6. Viewed in the proper light, the worst that is said about Desilet in the Complaint is that he maliciously submitted a progress report to the court, falsely referring to Plaintiff as having an "arrogant attitude and defiant personality," etc. Significantly, there is no claim that Desilet gave the report to anyone other than the court in connection with an open case. If, for example, a prospective employer saw the report, that was because, as the complainant barely implies, Plaintiff chose to give it to the prospective employer, or someone else, not because Desilet or any other Defendant released it. Again, the Complaint does not allege Desilet gave the report to anyone besides the judge presiding over Plaintiff's probation.
7. Even though the report is not "testimony" and the litigation privilege is narrow, the allegedly false statements were made directly to the court in connection with a pending case. There is no claim that the declarant, Desilet, published the statement in any other way. Accordingly, irrespective of its presumed inaccuracy or malice, in the context it was made, the statement was privileged as a matter of law.
See Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992) ("The absolute privilege is a common law rule, long recognized in Delaware, that protects from actions for defamation statements of judges, parties, witnesses and attorneys offered in the course of judicial proceedings so long as the party claiming the privilege shows that the statements issued as part of a judicial proceeding and were relevant to a matter at issue in the case") (citing Klein v. Sunbeam Corp., 94 A.2d 385, 392 (Del. 1952).
8. The litigation privilege is not callous. It is grounded in important policy considerations. This case is an example. A probation officer must be free to report to the court without fear of retaliation by a probationer under his supervision. If the probation officer is out-of-line, the probationer has immediate, direct access to the court, so he can be heard without filing a lawsuit.
9. Desilet's absolute privilege to report to the court about Plaintiff's progress on the probationary sentence as Desilet saw fit, protects his supervisors. And, even if that were not so, they are nevertheless immune under the Tort Claims Act.
See 10 Del. C. 4011(c): "An employee may be personally liable for acts or omissions causing property damage, bodily injury or death in instances in which the governmental entity is immune under this section, but only for those acts which were not within the scope of employment or which were performed with wanton negligence or wilful and malicious intent."
10. Although the Complaint presumably charges Desilet with intentional misconduct and, arguably, his supervisors might be called negligent, the Complaint does not attempt to plead that the supervisors were grossly negligent, or are otherwise not entitled to qualify immunity under the Act.
11. According to the Complaint, Desilet's immediate supervisor, Kearney, "was completely indifferent" to Plaintiff's "vehement[]" objections and complaints when the two met to discuss the report after Desilet submitted it to the court. The fact, if it is a fact, that Kearney flatly rejected Plaintiff's objections and complaints without taking notes, as alleged, does not amount to gross negligence, as a matter of law. That legal conclusion applies with greater force to Kearney's supervisors. Their duty to Plaintiff was more remote, involving supervision of Desilet's supervisor. In his response to the appeal, Plaintiff does not argue otherwise.
12. Finally, if the State employees could be held liable here, which they cannot, the State has sovereign immunity. There is no allegation, much less a pleaded fact, suggesting the State has waived sovereign immunity from Plaintiff's claims. And, Plaintiff has not even argued waiver of sovereign immunity.
Id. 4011(a): "Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages."
See Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) ("Issues not briefed are deemed waived.") (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)). --------
For the forgoing reasons, after de novo review, it appears Plaintiff has failed to plead facts upon which, under any reasonably conceivable circumstances, relief can be granted, as a matter of law. Accordingly, as to all Defendants, the Complaint is DISMISSED.
IT IS SO ORDERED. Date: November 4, 2015
/s/ Fred S. Silverman
Judge oc: Prothonotary (Civil)
pc: Joseph C. Handlon, Deputy Attorney General
Stephen R. DiGiovanni, pro se (via First Class Mail)