Opinion
C.A. No. 08C-06-216-PLA.
Submitted: September 8, 2008.
Decided: October 2, 2008.
ON DEFENDANTS' MOTION TO DISMISS.
GRANTED
This 2nd day of October, 2008, upon consideration of the Defendants' Motion to Dismiss, it appears to the Court that:
1. Plaintiff Clarence Harrison filed a pro se Complaint against the State and Delaware State Police Officer L. Towns ("Officer Towns"; collectively, with the State, "Defendants") in this Court on June 26, 2008. The Complaint includes an attachment stating that on May 18, 2008, Harrison was pulled over while driving his automobile on Route 13 by Officer Towns for having a cover over his vehicle registration tag. Harrison, who is identified on the ticket issued to him as black, does not deny that his tag was covered; however, he contends that Officer Towns ignored other cars that also had covered tags but were operated by white or Hispanic drivers. The Complaint appears to seek $2,000,000 in damages for "racial profiling, by a state employee[, in] violation of civil rights."
See Docket 1.
Id. The Court will consider this attachment, which is labeled as "Complaint Amended," to be part of Harrison's Complaint.
See Docket 6, Ex. A. Because Harrison did not plead his race in his Complaint, the Court must rely upon the Complaint and Summons for Harrison's traffic violation, which he offered as an exhibit to his Response, in order to establish his race.
See Docket 1 (Compl.). The amount of damages Harrison seeks is unclear from the Complaint. The Complaint is on a preprinted form, which Harrison has filled in to indicate that he has brought an action "for damages which are less than $2 million" without further explanation. It seems Harrison may have intended to fill in the next line on the form, so that the Complaint would instead state a claim that "Defendant owes Plaintiff $2 million." See id. Harrison's Response to the Defendants' Motion to Dismiss does not correct the Defendants' statement that "Harrison requests two million dollars in damages." See Docket 3 (Defs.' Mot. to Dismiss), ¶ 1.
2. On August 12, 2008, Defendants filed the instant Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6). Defendants assert that Harrison's Complaint cannot support any conceivable set of facts establishing a claim for racial profiling and that they are collectively immune from liability because Harrison has not identified any waiver of sovereign immunity applicable to his claim. Furthermore, Officer Towns asserts that she is immune from suit in her individual capacity under the State Tort Claims Act.
Docket 3 (Defs.' Mot. to Dismiss), ¶ 7.
Id. at ¶ 9.
Id. at ¶ 10; see 10 Del. C. § 4001.
3. In response, Harrison filed a document which is captioned as a "Motion in Response" and includes a demand for a jury trial. Harrison's two-sentence Response does not address the issues raised in the Motion to Dismiss. Instead, the Response relates Harrison's belief that the judicial system is riddled with endemic racism and states that "the Constitution . . . gives all people the right to have a [trial] in a court of law." Other than this general reference to the Constitution, no legal authorities are cited. Several exhibits accompany the Response. Although most are unidentified and presented without context, the exhibits appear to consist of a copy of the Complaint and Summons issued to Harrison for his covered tag, a portion of a summary of the Slaughterhouse Cases, an excerpt from a civil procedure textbook discussing the federal constitutional right to trial, and the text of Article I, § 9 of the Delaware Constitution.
See Docket 6.
See Docket 6, Ex. A, B, C.
Upon a motion to dismiss, the Court's role is to determine "whether [the] plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." If recovery is possible, the Court must deny the motion to dismiss. When considering a motion to dismiss, the Court will accept all well-pleaded allegations as true. In addition, every reasonable factual inference will be drawn in favor of the plaintiff. A pro se litigant's pleadings are viewed under a "less stringent standard" than is applied to attorneys' filings, in accordance with a general policy of judicial lenience towards pro se parties.
Spence v. Funk , 396 A.2d 967, 968 (Del. 1978).
Id.
Id.; Wyoming Concrete Indus. Inc., v. Hickory Commons, LLC II, 2007 WL 53805, at *1 (Del.Super. Jan. 8, 2007).
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982) (citing Bounds v. Smith, 430 U.S. 817, 826 (1977)); Limehouse v. Steak Ale Rest. Corp., 2004 WL 304339, at *2 (Del.Super. Feb. 5, 2004).
As the Supreme Court has observed, allegations of racial profiling are subjected to a "demanding" standard of proof appropriate to a claim that is easily raised yet may be difficult to disprove in the absence of wrongdoing. Harrison's claim for racial profiling must be evaluated under the same ordinary equal protection standard applied to selective prosecution claims. To establish a prima facie racial profiling claim, a plaintiff must show that police action (1) had a discriminatory effect and (2) was motivated by a discriminatory purpose.
Drummond, 2006 WL 2842732, at *2 n. 8 (citing United States v. Armstrong, 517 U.S. 456, 463 (1996)).
Drummond v. State, 2006 WL 2842732, at *2 (Del. Oct. 5, 2006).
Id. (citing Armstrong, 517 U.S. at 465).
6. Generally, a party raising a claim of selective prosecution or selective enforcement must show that "a similarly situated person of a different race could have been arrested for the same offense for which the defendant was arrested but was not." A split of authority exists as to whether and how a party alleging racial profiling in a traffic stop must identify similarly-situated individuals in order to show discriminatory effect. Some courts view the similarly-situated individuals requirement as a "virtually impossible" barrier to proof in traffic stop cases, since "law enforcement agencies do not make or keep records on individuals they do not stop." Therefore, courts adopting this reasoning allow parties to show discriminatory effect either "by naming similarly situated members of an unprotected class who were not selected . . . or, in some cases, by submitting statistical evidence of bias." Those courts declining to impose the similarly-situated individuals requirement in traffic stop cases emphasize the existence of statistical and other evidence of discrimination that can be presented in lieu of identifying similarly-situated individuals.
Id.
Compare Johnson v. Crooks, 326 F.3d 995, 999-1000 (8th Cir. 2003) ("When the claim is selective enforcement of the traffic laws or a racially-motivated arrest, the plaintiff must normally prove that similarly situated individuals were not stopped or arrested in order to show the requisite discriminatory effect and purpose."), with Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1140-41 (N.D. Cal. 2000) (holding that plaintiffs in a civil suit alleging racial profiling by police are not required to meet "similarly-situated individuals" requirement because law enforcement officers' decision enforcement decisions do not receive the same "presumption of regularity" attached to exercises of prosecutorial discretion and because the requirement would impose proof problems with identifying similarly situated motorists who were not stopped by law enforcement), and United States v. Duque-Nava, 315 F. Supp. 2d 1144 1154 (D. Kan. 2004).
United States v. Duque-Nava, 315 F. Supp. 2d at 1154-55.
Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002) (emphasis added).
See Rodriguez, 89 F. Supp. 2d, at 1141 n. 7 ("[S]tatistical evidence `may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.'") (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)); see also Bradley, 299 F.3d at 206 (holding that plaintiffs may present either evidence that similarly-situated individuals received differential treatment or statistical evidence showing bias).
7. Here, even the most liberal construction of Harrison's Complaint reveals that it falls short of satisfying the standard applied to racial profiling claims. Harrison does not specifically identify any similarly-situated motorists who could have been stopped and ticketed but were not. The Complaint merely alleges that "other cars with covers over [their] tags" operated by white and Hispanic drivers were present at the time Officer Towns ticketed him. This bare assertion is made without specificity or corroboration, and thus there is no basis upon which to determine whether the other drivers would qualify as "similarly situated" to Harrison. Harrison does not even describe the number of other cars he alleges were not stopped despite having covered tags. Harrison's claim fares no better if the Court assumes arguendo that he need not satisfy the similarly-situated individuals requirement because his claim arises from a traffic stop. He presents no other evidence, statistical or otherwise, to demonstrate discriminatory effect or to support an inference that Officer Towns was motivated by racially discriminatory intent.
Docket 1 (Compl.).
8. Indeed, nowhere in his Complaint does Harrison allege that Officer Towns acted with any discriminatory intent, let alone that Harrison's race was a "motivating factor" in the decision to stop and ticket Harrison. The closest Harrison comes to implying that discriminatory intent existed is in his recounting of events leading up to the stop. In his Complaint, Harrison states that Officer Towns "came by [in her car] and looked at . . . me strangely" before slowing down, pulling behind Harrison's car, and putting her lights on to pull Harrison over. The Court cannot infer discriminatory intent from Officer Towns's conduct, which appears innocuous even if Harrison's version of events is accepted for the purposes of this motion. Harrison has not alleged that Officer Towns made any racially motivated comments during the stop, nor has he suggested any pattern of selective enforcement by Officer Towns or the Delaware State Police. Moreover, this is not a case in which the underlying traffic stop itself is being challenged, as Harrison has never denied that his tag was covered — which could have given Officer Towns particular reason to look closely at his car and its occupant. Setting aside the subjectivity inherent in the description, a "strange look" and the unsupported allegation that other, unidentified motorists with covered tags were not stopped are far from a sufficient basis for showing discriminatory intent. Harrison's enthusiasm for invoking the Constitution far outpaces the completeness of his Fourteenth Amendment claim, and the Court finds that his Complaint fails to demonstrate any conceivable basis for recovery.
See Drummond, 2006 WL 2842732, at *2 (noting that racial profiling claim requires showing that discriminatory intent was a "`motivating factor in the decision' to enforce the criminal law against the defendant") (quoting United States v. Alcarez-Arellano, 441 F.3d 1252, 1263 (10th Cir. 2003)).
Docket 1 (Compl.).
The existence of probable cause to stop is distinct from and does not preclude a claim of racial profiling. See Carrasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir. 2002); Bradley, 299 F.3d at 205 ("The fact that there was no Fourth Amendment violation does not mean that one was not discriminatorily selected for a search."). The Court therefore considers Harrison's racial profiling claim without regard to the validity of the traffic stop. An officer's subjective intent, however, is an appropriate area of inquiry in an equal protection profiling claim, whereas it is irrelevant to a Fourth Amendment challenge. Christopher v. Nestlerode, 240 Fed.Appx. 481, 489 (3d Cir. 2007). Thus, if Harrison were claiming that the stop was unreasonable, that allegation would have been potentially probative as to the existence of discriminatory intent.
See Arocho v. Witman, 2006 WL 3000896, at *4 (E.D. Pa. Oct. 19, 2006) (holding that motorists failed to show discriminatory animus by alleging that officer treated motorists in a "consistently insulting and snide manner" because of their race).
9. In addition to their challenge to the merits of Harrison's claim, Defendants assert that sovereign immunity bars the instant suit against the State and against Officer Towns in her official capacity. The doctrine of sovereign immunity prevents the State from being sued without its consent. This immunity also bars suits against State employees in their official capacities. Sovereign immunity may be waived only through an act of the General Assembly. The General Assembly has waived sovereign immunity in 18 Del. C. § 6511 to the extent of the state's insurance policy for those risks and losses covered by the State Insurance Coverage Program.
Del. Const. art. I, § 9; Doe v. Cates, 499 A.2d 1175, 1176 (Del. 1985).
Doe, 499 A.2d at 1176.
Del. Const. art. I, § 9; Doe, 499 A.2d at 1181.
18 Del. C. § 6511; see Doe, 499 A.2d at 1177-79.
10. Harrison has not responded directly to the Defendants' assertion of sovereign immunity. Instead, apparently relying upon an argument-by-pastiche approach, he included a copy of Article I, § 9 of the Delaware Constitution among the unidentified documents attached to his Response. The Court notes that Article I, § 9 of the Delaware Constitution authorizes the General Assembly to waive sovereign immunity, providing that "[s]uits may be brought against the State, according to such regulations as shall be made by law." This language does not, however, constitute a waiver of sovereign immunity.
See Docket 6, Ex. C.
Del. Const. art. I, § 9.
See Tomei v. Sharp, 902 A.2d 757, 761 (Del.Super. 2006).
11. As a result of the waiver of sovereign immunity for insured risks under 18 Del. C. § 6511, defendants asserting sovereign immunity often submit affidavits from state officials indicating that the State has not obtained insurance to cover the litigated loss. In at least one case, the Court has treated the provision of an affidavit disclaiming the existence of applicable insurance coverage as a prerequisite to consideration of sovereign immunity.
See Caraballo v. Del. Dep't of Corr., 2001 WL 312453, at *1 (Del.Super. Mar. 21, 2001).
See Deputy v. Roy, 2003 WL 367827, at *3, n. 24 (Del.Super. Feb. 20, 2003) ("The Court will not address whether [the defendant] is entitled to sovereign immunity because he did not produce an affidavit in compliance with [18 Del. C. § 6511].").
12. Here, Defendants have not produced such an affidavit, nor have they otherwise asserted that Harrison's claim is not covered by the State Insurance Coverage Program. In light of Harrison's failure to state a claim against the State or Officer Towns, the Court will not address whether either defendant is entitled to sovereign immunity in the absence of an affidavit indicating that the State has not obtained applicable insurance.
See id.
13. Officer Towns also argues that she is immune from suit in her individual capacity under § 4001 of the State Tort Claims Act. The State Tort Claims Act confers governmental entities and their employees with immunity from claims except where another statute expressly provides for a claim or one of the following elements of immunity set forth in § 4001 is not met:
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority;
(2) The act or omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and
(3) The act or omission complained of was done without gross or wanton negligence[.]
id.
id.
The plaintiff bears the burden of disproving the existence of at least one of the immunity elements in order to maintain suit.
id.
14. The Court finds that Officer Towns is entitled to immunity under § 4001. Harrison has not offered proof that Officer Towns's actions were outside her official duties, undertaken in bad faith or against the public interest, or performed with gross or wanton negligence. The facts that failed to establish discriminatory intent, as discussed above, are similarly inadequate to support the existence of bad faith. Harrison's allegations that Officer Towns looked at him "strangely" and stopped him while an unstated number of other white or Hispanic motorists who seemed to have uncovered tags were present are insufficient to prove that Officer Towns was not engaged in the good-faith performance of her official duties. Because Harrison's Complaint provides no basis for disproving one of the elements of immunity set forth in the State Tort Claims Act, and because he identifies no other applicable waiver of immunity, Officer Towns is entitled to immunity from his claim under § 4001.
15. Harrison's Response includes two unidentified exhibits not addressed in the preceding discussion. To the best of the Court's knowledge, these exhibits consist of a partial summary of holdings in the Slaughterhouse Cases and an excerpt from a textbook explaining the federal constitutional right to trial. The relevance of these items to Harrison's claim at this stage is far from evident, and Harrison's filing is devoid of any explanation for their presence. Any attempt to discern an argument on Harrison's behalf based upon these exhibits would risk carrying the Court past leniency and into bibliomancy. The liberal approach to pro se filings has its limits, and it does not extend to requiring the Court to engage in such a dubious exercise.
See Docket 6, Ex. A B.
Garrett v. Selby Connor Maddux Janer, 425 F.3d 836, 840 (10th Cir. 2005) ("[T]he court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.").
16. For the foregoing reasons, the Court finds that Harrison has failed to state a claim that he was subjected to racial profiling in violation of his equal protection rights. In addition, the Court finds that Officer Towns is immune from suit under the State Tort Claims Act. Accordingly, the Defendants' motion to dismiss is hereby GRANTED.
IT IS SO ORDERED.
Original to Prothonotary
cc: Clarence Harrison, pro se
Erika Y. Tross, Esq.