Opinion
CIVIL ACTION NUMBER 98C-07-021-JOH
Submitted: July 28, 1999
Decided: November 10, 1999
Upon Motion of Defendants for Summary Judgment — GRANTED
Caroline P. Ayres, Esq., of Law Offices of Carolyne Patricia Ayres, attorney for plaintiff
Mary Page Bailey, Esq., Deputy Attorney General, Department of Justice, attorney for defendants
MEMORANDUM OPINION
George Lee Reynolds has filed civil rights and state tort actions against Governor Thomas R. Carper, Attorney General M. Jane Brady and Commissioner of Corrections Stanley W. Taylor, the State of Delaware and the Delaware Department of Correction.
Reynolds was convicted on July 15, 1977 of murder in the first degree. Since then, Reynolds has been involved in extensive and prolonged litigation concerning that conviction. Ultimately, on July 23, 1996, he was released on order of the United States District Court for Delaware. Exactly two years later, he filed his current civil action. Initially, the defendants moved to dismiss his action but that motion will now be treated as a motion for summary judgment. Consideration of that motion and Reynolds' response involves a myriad of issues. The Court has determined that the defendants' motion must be GRANTED.
FACTUAL BACKGROUND
The extensive litigation leading up to this point is tightly interwoven with the murder, its investigation and Reynolds' arrest for that murder. The murder was particularly gruesome. The victim, Frank Snyder, was found in a bathtub, beaten and stabbed with a knife which was protruding from his chest. There were no eyewitnesses and little other evidence of value. Sometime later, a $2,000 reward was offered.
One of the investigating officers on the Snyder homicide arrested Reynolds in December 1975 or January 1976 for an unrelated liquor store robbery. It is uncertain whether the officer questioned Reynolds on this date about the murder. Reynolds was being held in default of bail on the robbery charge when, several weeks later, the same officer and another officer questioned him at length about the liquor store robbery. The record is unclear whether Reynolds had counsel at this time.
After over four hours of questioning about the robbery, the officers asked Reynolds about the Snyder murder. According to them, Reynolds' whole body language markedly changed raising suspicions about his knowledge or involvement in the murder. Upon an inquiry from Reynolds about the handling of the robbery charge, the officers obtained permission from a prosecutor to discuss a deal with him.
The police hoped to get a formal statement from Reynolds. Before doing so, they mentioned the $2,000 reward, his closeness to but current physical separation from his girlfriend and being with his family. The exact date of this conversation is not in the record. But, when the police sought to get the formal statement, Reynolds declined.
In this same period, the police were in discussions with another person, Miles Cuffee, concerning his possible knowledge of the murder. In late February 1976, Cuffee pointed a finger of suspicion at Reynolds, ultimately indicating that he drove the car for the two perpetrators. The police interviewed Cuffee the next day who added this time that Reynolds had hit Snyder with a baked bean can. A dented can of baked beans, a possible bludgeon, had been found at the murder scene but there were no fingerprints of value on it. Cuffee, at a later polygraph test, repeated basically the same statement.
On March 19, 1976, a lawyer representing Reynolds met with Deputy Attorney General Merritt Burke. Burke was the prosecutor who had earlier granted permission for the police to talk to Reynolds about a deal on his robbery charge, if he gave information on the Snyder murder. There was; however, no permission given for the police to question Reynolds in the absence of his lawyer. But, the police interviewed Reynolds in the absence of his lawyer on March 28, 1976. Under questioning, Reynolds said he and two others went to Snyder's store where those two went in. They came out with blood on their clothes carrying merchandise from the store.
Again, on March 31, 1976, the police interviewed Reynolds, again without counsel's presence. Reynolds named the other two people. That same day, the police arrested Reynolds in connection with Snyder's murder and took him to a Justice of the Peace on the 31st who ordered that he be held without bail. The records of this Court indicate that, while appearing before the magistrate, Reynolds requested a preliminary hearing and said he would obtain his own lawyer. The preliminary hearing was scheduled for April 8, 1976; however, Reynolds waived the preliminary hearing, was bound over for Superior Court and recommitted to be held without bail. He also continued to be held in default of bail on the unrelated robbery charge.
One of the other persons arrested for the murder took a "truth" serum test. After taking it, the State dropped the murder charge against this defendant. Reynolds, too, took a similar test which appeared to show he had no direct knowledge of or involvement in the murder. Unlike the other defendant the State did not drop the charge against Reynolds.
Prior to Reynolds' trial on the murder charge, on April 4, 1977, he pled guilty to robbery in the first degree (Cr.A. No. IS-75-12-0070) and possession of a firearm during the commission of a felony (Cr.A. No. IS-75-12-0068). A presentence investigation was ordered. On May 31, 1977, Reynolds was sentenced to five years in jail beginning on December 11, 1975 on the weapon charge and three years in jail on the robbery charge (to run concurrently, as could be done then).
Reynolds' trial for murder started on June 7, 1977. In his opening, the prosecutor, Burke, spoke of his intention to offer Reynolds' March 28th and 31st statements:
[Y]ou will hear evidence that sixteen months after the crime . . . [Reynolds] got it off his chest . . . He told the police about the crime.
But, it's kind of a funny statement, members of the jury panel. He tells about the crime and he tells about the crime with specific detail of things that no one could know unless they were there, details about the crime that had never been revealed in any publication. He told of details of the crime that had never been told to any newspaper or any radio station or to anybody except for the investigating officers.
[Reynolds] knew certain details about that crime. Furthermore, members of the jury, in addition to these details that he knew about the crime that you will hear about, he lied to us in addition. He told us half the truth. He didn't tell us all of the truth.
He said that he, Black Jesus and a fellow by the name of Louis were responsible for the crime and two days later he retracted the business about the fellow by the name of Louis. It was an obvious lie.
He substituted another name in there, a name of a friend that he knew was in California.
Now, these are things that I don't have the answers to. I am not going to explain the answers to them. These are things that you are going to hear and when you hear them you are going to have an obligation and a duty.
A duty is, members of the jury panel, to sift through this information and determine is [Reynolds] telling us the truth on the 28th of March? Is he telling us the truth on the 31st of March, because a little later on you are going to hear [Reynolds] say he made it all up to collect the reward.
In other words, [Reynolds] retracted his story. How is it he retracted his story but he can't retract, members of the jury panel, those specific items that are of specific knowledge to the crime that [Reynolds] had when he "made up that story"?
After the State had proceeded with part of its case, it sought to introduce these two March statements. But, it disclosed to the trial judge that the police had taken them from Reynolds without getting his lawyer's consent. Burke then withdrew the offer to introduce the statements. Reynolds' trial counsel neither moved for a mistrial nor sought any kind of cautionary instruction concerning the non-introduction of the two statements. Nor did Burke ever explain to the jury what facts Reynolds knew only a perpetrator knew. The Court, sua sponte, did not grant a mistrial or give a cautionary instruction.
Even without these statements, Reynolds was convicted. On direct appeal, he raised only two claims of error. Neither related to Burke's opening statement and the subsequent non-introduction of the two statements. Reynolds' conviction of murder in the first degree was affirmed per curiam. Following the affirmance, Reynolds filed a motion for postconviction relief. This motion raised for the first time whether Reynolds had been denied effective assistance of counsel when neither of his two trial lawyers sought a mistrial after the State failed to put the statements into evidence. A hearing was held during which trial counsel testified about what they did and did not do about the mistrial or a cautionary instruction and why. After listening to their explanations, this Court denied Reynolds' motion holding that counsel either overlooked or chose to ignore any due process argument while pursuing another line of defense. This denial was affirmed on appeal. In affirming the Superior Court's denial of Reynolds' motion, the Supreme Court noted:
Reynolds v. State, Del.Supr., 424 A.2d 6 (1980). (Part of the reason for the lapse of time between the conviction and its affirmance was that the trial court was presented with a motion for new trial which was based on newly discovered evidence. The trial court found the new evidence either unpersuasive or not new.)
State v. Reynolds, Del.Super., Cr.A. Nos. IN-76-04-0026, 0027, 0027A, Taylor, J. (December 9, 1983).
Reynolds v. State, Del.Supr., No. 370, McNeilly, J. (January 16 1985) (ORDER).
(3) The issue which this Court confronts is whether the reference by [Burke] in his opening statement to a confession by [Reynolds] followed by the failure of [Burke] to put the confession into evidence during the trial warrants post-conviction relief where the defendant's attorney did not seek a mistrial during the course of the trial, and did not raise the issue on direct appeal.
Id. at 2.
Subsequently, Reynolds filed another motion for postconviction relief. In this motion, he raised again attorney deficiency But, he apparently raised for the first time an independent, new claim of judicial error. He argued the trial court, on its own, should have ordered a mistrial. In denying this latest motion, this Court noted that the issue raised had been examined before by the Superior and Supreme Courts and nothing warranted reconsideration. Reynolds appealed but voluntarily withdrew it before the Supreme Court considered it.
State v. Reynolds, Del.Super., C.A. Nos. IN-76-04-0026, 0027, O'Hara, J. (March 12, 1986).
He then moved his pursuit for relief to federal court where he filed a petition for writ of habeas corpus in March 1986. He claimed (1) prosecutorial misconduct because of Burke's opening remarks, (2) trial court error in not sua sponte telling the jury to disregard Burke's remarks (3) ineffective assistance of counsel in failing to object to Burke's remarks, failure to move for a mistrial and not raising the issue on appeal. The District Court upheld a United States magistrate's finding that federal case law barred reviewing claims (1) and (2) and that the ineffective assistance claims lacked merit. The habeas corpus petition was denied.
The Third Circuit Court of Appeals reversed. It found that federal case law did not bar the District Court's consideration of prosecutorial misconduct and trial court error. Further, the court held there were issues of whether Reynolds had exhausted his state court claims of ineffectiveness and if he had, whether they were otherwise procedurally barred. In remanding the case to District Court, the Third Circuit offered Reynolds an option to drop his claim of ineffective assistance of counsel and proceed only on the claim of an unfair trial.
Reynolds v. Ellingsworth, 3rd Cir., 843 F.2d 712 (1988), cert. denied, 488 U.S. 960, 109 S.Ct., 403, 102 L.Ed.2d 391 (1988).
Id. at 722.
Id. at 724.
Id. at n. 22.
When back at District Court, Reynolds followed the Third Circuit's suggestion and dropped his claim of ineffective assistance of counsel. On remand, the District Court again dismissed Reynolds' habeas corpus petition, relying on this Court's 1983 decision that counsel had made a strategic decision not to object or ask for a new trial. That being so, the District Court reasoned Reynolds was barred from raising the issue in federal court. Again, the District Court was reversed and the matter remanded for review on the substance of his claims.
Reynolds v. Ellingsworth, D.Del., No. 86-142-JRR (December 31, 1992).
Reynolds v. Ellingsworth, 3rd Cir., 23 F.3d 756 (1994); cert. denied, 513 U.S. 1102, 115 S.Ct. 778, 130 L.Ed.2d 672 (1995).
The District Court, on remand, undertook that substantive review. The court exhaustively and thoroughly reviewed the procedural history and the factual history of the Snyder murder, the investigation, the trial, verdict, appeal and subsequently proceedings. Following that review, the District Court held that Burke's opening remarks at the trial rendered Reynolds' 1977 trial fundamentally unfair and that his due process rights had been denied.
This Court has relied heavily on the District Court's remand decision in this statement of facts.
Reynolds v. Ellingsworth, D.Del., No. 86-142-RRM (May 24, 1996).
As a result of this decision, the District Court said it would grant Reynolds' petition unless the State retried him within sixty days. On July 22, 1996, the Attorney General's Office wrote to the District Court enclosing a proposed form of order reciting the court's holding, noting the State had undertaken no action in the sixty-day interval and authorizing Reynolds' release. The District Court signed the order on July 23, 1996 and Reynolds was released that day.
Reynolds filed this action, pro se, exactly two years later, July 23, 1998. He seeks damages for false arrest, false imprisonment, retaliation, violation of his equal protection and due process rights and intentional infliction of emotional distress. The defendants have moved to dismiss his complaint. In December 1998, this Court heard oral argument on the defendants' motion. At that time, Reynolds had his current counsel. Among the arguments raised on that occasion was that the State had not waived immunity to any of Reynolds' claims and did not have insurance to cover them. The defendants supplied an affidavit stating there was no insurance coverage. Also, the defendants raised several arguments about the adequacy of several of Reynolds' allegations.
Based on these and other matters raised during argument, the Court directed several things to occur. One was that Reynolds could amend his complaint to address the argument about its inadequacy. Another was that if he chose, Reynolds could undertake discovery of the State insurance program to confirm or rebut lack of coverage, as indicated in the affidavit. Finally, the Court found that it was necessary and desirable for further briefing and ordered it.
That briefing was carried out and another oral argument was held. But, the amended complaint had not been filed as ordered. Reynolds was given additional time in which to file it. He eventually did so and the defendants have answered it. The Court has undertaken its review of the current motion based on the complaint, the amended complaint, the two oral arguments, briefs and extensive prior judicial history of this matter.
APPLICABLE STANDARD
Originally, the defendants moved to dismiss Reynolds' action. But, both parties have submitted material, including affidavits, in addition to the complaint. When that happens, the motion is converted to and treated as a motion for summary judgement. A party is entitled to summary judgment where there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. The Court must view all factual inferences in a light most favorable to the non-moving party.
Superior Court Civil Rule 12(c); Chrysler Corp. v. Airtemp Corp., Del.Super., 426 A.2d 845, 847 (1980).
Wilmington Trust Co. v. Aetna, Del.Supr., 690 A.2d 914, 916 (1996).
Alabi v. DHL Airways, Inc., Del.Super., 583 A.2d 1358, 1361 (1990).
DISCUSSION
Reynolds' action is pursued as a federal civil rights action under 42 U.S.C. § 1983 and as a tort action under State law. This Court has concurrent jurisdiction with federal courts over Reynolds' § 1983 action. Since the District Court signed the order releasing Reynolds on July 23, 1996 and he was released that day and since he filed this action on July 23, 1998, the issue of the statute of limitations is present as to all his claims. As Reynolds' § 1983 action is for damages, it is treated as a personal injury action subject to a two-year statute of limitations. When the cause of action accrues, however, is a question of federal law. Accrual of a § 1983 action means the facts supporting the claim are, or should be, apparent to a person with a reasonably prudent regard for his rights. Under state law, the statute of limitations begins at the time of injury. Reynolds' § 1983 and State tort claims will be examined with these rules in mind, in addition to other principles of law applicable to each particular cause of action.Anticipating he was confronting a statute of limitations hurdle, Reynolds has sought to side-step it by claiming some mental infirmity or diminished capacity. In an affidavit he submitted opposing defendants' original motion, he states:
I am mentally disabled, and became more so during my incarceration. I had and still have difficulty remembering, understanding, writing, and reading. Because of my disability, I had appointed Michael Curry, as my Power of Attorney to handle my affairs when I was released from prison.
Reynolds' Affidavit, (May 4, 1999) ¶ 4 (Appendix at 38).
In the 1996 District Court opinion, that court noted Reynolds had an IQ of 80 and an eighth-grade education. His counsel's brief argues that his diminished capacity tolled the statute of limitations.
Reynolds' Answering Brief at 10.
Fairness and justice compel pointing out these things. This Court has considered them in reviewing the claims and arguments, even though there has never been a determination or opinion that Reynolds was ever or is now mentally incompetent. Accepting Reynolds' statement and the facts about him noted by the District Court, however, does not change the legal principles applicable to his claim and the issues the defendants raise.
Several other observations are in order. In 1976 when Reynolds was arrested, Sherman W. Tribbitt was the Governor and when Reynolds was tried, Pierre S. duPont, IV, was Governor. When he was arrested and tried, Richard W. Wier was Attorney General. Commissioner Taylor was not the Commissioner of Correction in 1976 or 1977 and did not assume that position until the early to mid-90's. Governor Carper was first elected to that position in November 1992 and inaugurated in January 1993. Attorney General Brady was first elected to that position in 1994.
These observations about who was in office when are important because Reynolds alleges in his complaint that at all relevant times two of the three individuals, the Governor and the Attorney General, held their offices. Commissioner Taylor, he alleges, was warden at the Delaware Correctional Center.
Reynolds' amended complaint ¶ 12-13.
Id. at ¶ 15.
With all these observations in mind, the Court must analyze each of Reynolds' causes of action.
STATE TORT CLAIMS Retaliation
The first claim which Reynolds makes against the defendants is that of retaliation:
[Reynolds] was retaliated against for attempting to question the right of defendants to arrest and imprison him.
Reynolds' amended complaint at ¶ 19.
Delaware law recognizes a cause of action for retaliation for exercising First Amendment rights.
See Couch v. Delmarva Power and Light Co., Del.Ch., 593 A.2d 554, 461 n. 8 (1991); Burge v. City of Dover, Del.Ch., C.A. No. 954-K, Allen, C. (June 8, 1987) (disciplinary action taken in retaliation for exercise of civil and political rights not permissible).
While Reynolds' initial complaint was filed pro se, he had counsel at the first and second arguments and who also prepared and filed the amended complaint. This claim of retaliation was made in the amended complaint. The above paragraph from the amended complaint is the extent of the allegation. As part of filings in this case, Reynolds has submitted an affidavit. Nothing in this affidavit supplies anything further concerning the claim of retaliation. Nor does Reynolds' brief opposing defendants' motion address this claim.
COMES NOW GEORGE REYNOLDS who states and deposes, under penalties of perjury, the following:
1. I am the Plaintiff in the above-captioned case.
2. It was not until July 23, 1996, when I was actually released from prison that I knew that I would be a free man.
3. Up until my release on July 23, 1996, I did not understand what would happen to me: what, if anything, the State had done wrong regarding my murder trial; or what my rights were regarding my imprisonment. I was not even aware that the State had proposed a form of Order for my release on July 22, 1996.
4. I am mentally disabled, and became more so during my incarceration. I had and still have difficulty remembering, understanding, writing, and reading. Because of my disability, I had appointed Michael Curry, as my Power of Attorney to handle my affairs when I was released from prison.
5. However, I do recall that I had someone in prison Petition the Governor personally for my release from prison during my incarceration at Smyrna. In fact, I had a parole hearing while incarcerated at Smyrna, but I was denied parole by the Board and Governor.
6. I also remember prisoners like, William Hudson and Donald Ricketts, helping me file Motions and plead with various government officials for my release. I believe that during this time period, the Attorney General and Stan Taylor were made aware that there was a problem with the evidence presented by the State in my case, and that I thought I should be a free man because of the lack of evidence.
7. All of my appeal rights had been exhausted by the time I pursued the above mentioned avenues for my release.
8. I have been read all of the above mentioned statements, which are true and accurate to the best of my memory, and they are based upon my personal knowledge and belief.
Reynolds' Affidavit (May 4, 1999) (Appendix 38-38(a)).
Arguably, therefore, it could be considered abandoned. Murphy v. State, Del.Supr., 632 A.2d 1150, 1152 (1993).
Earlier, the Court noted that because materials, such as Reynolds' affidavit, had been submitted, the defendants' motion would be treated as a summary judgment motion. If the defendants' motion were still treated as a motion to dismiss, however, a less strict standard would be utilized to see if this claim passed muster. First, utilizing this standard, all well-pled allegations are taken as true. Second, if the plaintiff can recover under any circumstances susceptible of proof under the complaint, the motion to dismiss cannot be granted.
Supra at 10.
Ianire v. University of Delaware, Del.Super., 255 A.2d 687, 691 (1969); aff'd. sub nom Diamond State Telephone Co. v. University of Delaware, Del.Supr., 269 A.2d 52 (1970).
Kofron v. Amoco Chemicals Corp., Del.Supr., 441 A.2d 226, 227 (1981).
Even with these less-strict standards for reviewing his complaint, Reynolds' claim for retaliation still fails. He offers no details, no specific allegations, only the one broad, conclusory statement. While other deficiencies exist with this claim, it fails for the simple reason that no claim has been made.
Intentional Infliction of Emotional Distress
Reynolds' next claim is for emotional distress and mental anguish. It is couched in this way:
38. Defendants' causing Reynolds to be stopped, detained, handcuffed, incarcerated and charged with criminal offenses, knowing that no factual or legal basis existed to justify said charges, constituted extreme, outrageous, malicious and racially-motivated conduct.
39. As a direct and proximate result of defendants' extreme, reckless and outrageous conduct, [Reynolds] has suffered and will continue to suffer severe emotional distress, psychological harm, loss of self esteem, humiliation and mental anguish.
Reynolds' amended complaint at ¶ 38-39.
A plaintiff can recover damages for intentional infliction of emotional distress but must allege that it was suffered "as a result of a defendant's extreme and outrageous conduct. None of the three individual defendants arrested or authorized Reynolds' arrest. None charged him for murder as he alleges and no one, including any court, has said there was not a factual or legal basis for his arrest. It is true all three individual defendants held their current offices on July 23, 1996. But, Reynolds was released that day as a result of the District Court's order signed that day. He has no claim, therefore, against any of the three-named defendants.
Allison v. J. C. Bennington Co., Del.Super., C.A. No. 96C-04-047, Quillen, J. (August 6, 1996).
In addition to naming the wrong individual defendants, Reynolds' claim for infliction of extreme emotional distress is barred by the statute of limitations. As a tort action, Reynolds had to have brought his action within two years of the date of the injury. Reynolds was being held in prison by various court orders, starting with his original sentence, if not the original order on March 31, 1976 committing him without bail on the murder charge. The final court order holding him was the District Court's May 23, 1996 order authorizing Reynolds to be held for sixty days. That order expired July 22, 1996. He was released on July 23, 1996. The defendants seem to argue, in part, that the May date triggers the statute of limitations. Viewing the evidence favorably to Reynolds, however, this Court will use July 23, 1996 as the trigger date. Even assuming any named defendant inflicted emotional distress on him, it ended on July 22, 1996. Since his action was filed July 23, 1998, this cause of action is barred.
Wright v. ICI Americas, Inc., D.Del., 813 F. Supp. 1083 (1993).
This is one of these areas where the diminished capacity contention arguably comes into play. Reynolds seems to advance this contention to claim even July 23, 1996 is not the trigger date. This diminished responsibility condition being unsubstantiated and inconsistent with the record does not equate to tolling the statute of limitations.
But, the Court hastens to add that from March 31, 1976, up until July 23, 1996, Reynolds was being held by virtue of court orders. Under these circumstances, any action of any of the three individual defendants cannot meet any part of the elements of a claim of intentional infliction of extreme emotional distress.
In addition to the three-named defendants, Reynolds has sued the State of Delaware and the Department of Correction. For purposes of liability in a tort action, they are one and the same. The State is immune from suit and may not be sued without its consent. This immunity, on the other hand, can be waived by statute. There is a statute which creates a State Insurance Program and where insurance is bought through that program, the State's immunity is waived. Where no such insurance has been purchased, however, there is no waiver. To establish that the insurance has been purchased the State or State employee defendants in other cases have produced affidavits from persons knowledgeable about the State Insurance Program. The courts have relied upon such affidavits in determining that no waiver had occurred.
Del Const. Art. I § 9; Shellhorn Hill, Inc. v. State, Del.Supr., 187 A.2d 71, (1962).
Masten v. State, Del.Super., 626 A.2d 838, 842 (1991), aff'd. Del.Supr., 616 A.2d 1214 (1992).
Doe v. Cates, Del.Supr., 499 A.2d 1175, 1179 (1985).
Id. at 1179.
Walls v. Dept. of Corrections, Del.Supr., No. 131, 1989, Christie, C.J. (October 26, 1989) (ORDER).
The defendants in this case have provided a similar affidavit. Keith Barron, State Risk Manager, has stated there was no insurance purchased for circumstances described in Reynolds' complaint. At the first oral argument, Reynolds asked for time to conduct discovery about coverage or lack thereof. The record is silent, however, concerning whether that discovery was undertaken. Barron's affidavit, therefore, is sufficient to show the State has not purchased insurance to cover circumstances such as Reynolds cites. Without insurance, there has been no waiver of immunity. Without that waiver, Reynolds cannot maintain a tort action against the State or the Department of Correction. The claim of retaliation fails as to all defendants.
Id.
False Arrest/False Imprisonment
Reynolds contends he was subjected to false arrest and false imprisonment. These causes of action are made as State tort claims and as § 1983 claims. The two causes of action are not the same:
See infra at 26-27.
These torts are distinguishable. A false arrest is an unlawful arrest. [citation omitted] A false imprisonment occurs when one person unlawfully restrains the physical liberty of another. [citation omitted]
Shaffer v. Davis, Del.Super., C.A. No. 89C-MY-20, Lee, J. (June 12, 1990).
Assuming Reynolds was falsely arrested and imprisoned, it arguably existed only from March 31, 1976 until August 23, 1976, when an indictment was returned against him, if not earlier when he was taken to a Justice of the Peace. As noted previously, none of these defendants held their offices during that time. Nor is there a scintilla that any of them had anything to do with Reynolds in 1976 or 1977. It goes without saying, therefore, that the statute of limitations bars Reynolds' action against these three defendants for events occurring in 1976 and 1977.
As was mentioned earlier, when initially questioned and when arrested on the murder charge, Reynolds was being held in default of bail on a robbery charge.
Pagano v. Hadley, D.Del., 553 F. Supp. 171, 176, n. 5 (1982).
But, there may be another bar to this claim in the 1976-1977 time frame. Prior to being arrested for murder, Reynolds had been arrested for robbery and other offenses and committed in lieu of bail. Based on the effective date of his sentences for these offenses, his imprisonment was likely on December 11, 1975. Later he pled guilty to two offenses and was sentenced to several years in jail starting December 11, 1975 and running several years past his trial. Therefore, there is a serious question whether he can claim to be falsely imprisoned or arrested on the murder charge any time in 1976-1977 when he was serving an unrelated jail sentence. Also, based on his waiver of preliminary hearing on April 8, 1976, there is further doubt about the efficacy of this claim.
Even though his counsel does not argue it, Reynolds' affidavit speaks of seeking parole. He correctly states that the Parole Board is appointed by the Governor. He asserts that he was denied parole by the Board and the Governor. This statement does not help him. He does not say when he was denied parole. He could only seek parole while incarcerated which would have been before July 22, 1996. Again, the statute of limitations bars his claim.
Reynolds' affidavit does not even say who the Governor was who supposedly denied him parole. In part, this failure underscores the statute of limitations bar. In his amended complaint, he alleges that the Governor appoints the members of the Parole Board. In that respect, too, he is correct. But, even that does not help him. Other than the Governor appointing the Parole Board, he has no role in determining who is or is not granted parole.
In short, Reynolds cannot get a hook into the Governor by this method. He does, however, seek to hook the Governor, the Attorney General and Commissioner Taylor by alleging he wrote letters to them claiming he was illegally incarcerated. He gives no dates. Again, until May 23, 1996, no court held his 1977 trial had been unfair and no court had said he should or could be released. To the contrary, his conviction was repeatedly upheld. Reynolds cannot make out a tort claim of false imprisonment under these circumstances.
Reynolds' cause of action against the State and the Department of Correction fails also. They enjoy the same immunity for these causes of action as they do for his claim of intentional infliction of emotional distress.
Supra at 17.
Malicious Prosecution
Although Reynolds does not explicitly state it, he is pursuing a malicious prosecution claim. This claim arose when the criminal proceedings were terminated. The proceedings against Reynolds were not terminated until the District Court released him from incarceration on July 23, 1996. The applicable statute of limitations for this tort is two years. Unlike his other tort claims, since he filed his complaint on July 23, 1998, the statute does not bar a claim for malicious prosecution. It then becomes necessary to review the elements of this tort.In Stidham v. Diamond State Brewery, the elements of this tort were set out:
Del.Super., 21 A.2d 283, 284 (1941).
(1) There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.
(2) Such former proceedings must have been by, or at the instance of the defendant in this action for malicious prosecution.
(3) The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.
(4) There must have been malice in instituting the former proceedings.
(5) There must have been want of probable cause for the institution of the former proceedings.
(6) There must have been injury or damage resulting to the plaintiff from the former proceedings.
Id.
Again, the State's sovereign immunity precludes this cause of action against it. The Attorney General has absolute immunity from it. Thus, any malicious prosecution claim against the State, the Attorney General and the Department of Corrections is barred.
Doe, 499 A.2d 1175.
10 Del. C. § 4001; Vick v. Haller, Del.Super., 512 A.2d 249, 251 (1986) aff'd. sub nom Vick v. Haller, Tease Witsil, Del.Supr., 514 A.2d 782 (1986); Cornish v. Delaware State Police, Del.Super., C.A. No. 94C-12-019, Lee. J. (June 2, 1996) at 4.
Furthermore, Reynolds has not alleged essential elements for malicious prosecution against Governor Carper or Commissioner Taylor. Specifically, he has not alleged the proceedings were by or at the instance of either of these defendants and there was malice in instituting the proceedings. He does allege there was a lack of probable cause for the institution of the murder prosecution. However, he was indicted in 1976 and this indictment is prima facie evidence that probable cause existed. Reynolds has not disputed the existence of probable cause in any valid manner nor has any court held there was not probable cause to arrest him. Because he has failed to allege essential elements of the malicious prosecution claim, this claim must be dismissed for failure to state a claim.
Reynolds alleges that Attorney General Brady caused him to be arrested absent probable cause. That was not possible since she was not the Attorney General at the time of his arrest. When Reynolds was arrested in March 1976, Governor Carper was a private citizen. He was elected to his first public office in November 1976, that of State Treasurer.
Stidham, 21 A.2d at 285.
Id.; Gunzl v. Spayd, Del.Super., C.A. No. 93C-09-089, Babiarz, J. (March 28, 1995) at 7 n. 1.
There is another bar to Reynolds' claim for malicious prosecution against Governor Carper and Commissioner Taylor. The State Tort Claims Act provides immunity where:
Except as otherwise provided by the Constitutions or laws of the United States or of the State, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, conservation district or agency of the State, whether elected or appointed, and whether now or previously serving as such, in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:
(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; provided that the immunity of judges, the Attorney General and Deputy Attorneys General, and members of the General Assembly shall, as to all civil claims or causes of action founded upon an act or omission arising out of the performance of an official duty, be absolute; provided further that in any civil action or proceeding against the State or a public officer, employee or member of the State, the plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this section.
These provisions provide the Governor and Commissioner with qualified immunity. As the statute says, a plaintiff has the burden of proving the absence of one or more of these elements of immunity. But even to survive a motion to dismiss, a plaintiff must allege the absence of one or more of these elements. Specifically, the complaint must allege:
Vick, 512 A.2d at 251; Cornish, supra.
Smith v. New Castle County Vo-Tech School District, D.Del., 574 F. Supp. 813, 820-21 (1983); Vick, 512 A.2d at 251-52; Cornish, supra.
circumstances that would negate the existence of any of the three criteria enumerated in § 4001, i. e., that the act or omission complained of (i) arose out of and in connection with the performance of an official duty; (ii) was done in good faith and in the belief that the public interest would best be served thereby; or (iii) was done without gross or wanton negligence.
Vick, 512 A.2d at 252.
Reynolds has not made any such allegations and, accordingly, this claim against Governor Carper and Commissioner Taylor must be dismissed. In conclusion, the claim for malicious prosecution fails, as did the other State tort claims. Thus, Reynolds cannot pursue any of the state tort claims.
CIVIL RIGHTS ACTIONS
Reynolds has asserted constitutional claims and claims under 42 U.S.C. § 1983. Since he is seeking damages, the Court assumes that he is pursuing the constitutional violations as to § 1983 actions. Furthermore, for purposes of this motion, the amended complaint states claims for § 1983 that are analogous to the common law torts of false arrest, false imprisonment and malicious prosecution. As actions for personal injuries, the statute of limitations for all of his § 1983 claims is two years. For the same reasons that the statute of limitations bars his State tort actions for false arrest/false imprisonment, his § 1983 action for these claims are also barred. The statute of limitations for the § 1983 malicious prosecution and other constitutional claims, however, did not begin to run until the criminal proceedings terminated on July 23, 1996. Thus, the statute of limitations does not bar the § 1983 malicious prosecution claim other § 1983 constitutional claims, including that he was denied a fair trial.
This statute "provides the method for vindicating federal rights elsewhere conferred either by the United States Constitution or the federal statutes therein described." Slawik v. State, Del.Supr., 480 A.2d 636, 640 (1984).
See Pagano, 553 F. Supp. at 174.
Alston v. Hudson, Del.Supr., No. 160, 1997, Veasey, C.J. (August 22, 1997) at 5; Marker, 502 A.2d at 975; Power v. State, Del.Super., C.A. No. 96C-09-128, Quillen J. (November 26, 1996) at 4; n. 17, supra.
Supra at 18, 20-21.
Pagano, 553 F. Supp. at 175-76.
Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 2371, 129 L.Ed.2d 383 (1994); Holtz, 879 F. Supp. at 440; Pagano, 553 F. Supp. at 177; see Naylor v. Taylor, Del.Super., C.A. No. 95C-01-003, Ridgely, P.J. (August 23, 1996) at 7; Lee v. Fowler, Del.Super., C.A. No. 94C-05-002, Herlihy, J. (March 27, 1995) at 5.
Smith, 879 F. Supp. at 440.
In advancing his § 1983 malicious prosecution claim, Reynolds must establish the same elements as for the State claim of malicious prosecution. For the same reasons given in addressing the State claims for malicious prosecution, he has failed to allege elements essential to establish a § 1983 action for malicious prosecution. Thus, the malicious prosecution claim as a § 1983 cause of action fails.
Schwab v. Wood, D.Del., 767 F. Supp. 574, 586 (1991).
Supra at 23.
See Deary v. Three Un-Named Police Officers, 3rd Cir., 746 F.2d 185, 194-95 (1984); Gunzl, supra, at 9-10.
With regard to the assertions that there was a denial of equal protection due to race, that his fourth amendment rights were violated and that he was denied due process of law, Reynolds fails to specify what action any of these defendants did, which denied him these rights. He merely makes a very general allegation that his various constitutional rights were violated. He has made no factual allegations which would support such a claim and this omission is fatal.
See Gunzl, supra, at 9.
As this Court explained in Teat v. Neal:
Section 1983 imposes liability on government officials or actors through damages or injunctive relief for conduct which causes a deprivation of an individual's rights secured by the Constitution. A plaintiff must allege and prove: (1) the conduct was committed by a person acting under the color of state law, and (2) the conduct deprived the plaintiff of rights secured by the Constitution. [citations omitted]
Del. Super., C.A. No. 93C-12-206, Quillen, J. (January 9, 1996) at 5, app. dism., Del.Supr., No. 64, 1996, Berger J. (March 12, 1996) (ORDER).
Id.
In other words, a plaintiff must allege actions of defendants which affected his constitutional rights. Furthermore, a plaintiff "must allege a 'causal link' between the official conduct and the alleged deprivation of a constitutional right in order to state a claim under § 1983." Reynolds' § 1983 claims do not allege any such causal link and, therefore, must be dismissed.
Id. at 4.
Gunzl, supra, at 10.
See Id.; accord Smith v. New Castle County Police Dept., Del.Super., C.A. No. 99C-03-177, Herlihy, J. (March 23, 1999) at 4 (defendants cannot be held liable for § 1983 on the basis of respondeat superior or vicarious liability).
As with the situation with the State law claims, other bars prohibit this § 1983 claim from proceeding against the defendants. The State and the Department of Correction are not persons subject to suit pursuant to § 1983. To the extent Governor Carper and Commissioner Taylor were acting in their official capacities, they are not subject to the § 1983 claims. In addition, the Attorney General has absolute immunity from such claims. In conclusion, all of Reynolds' § 1983 claims fail.
Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45, 54 (1989); Cornish, supra, at 3, n. 1.
Weber v. Oberly, Del.Supr., 571 A.2d 788 (1989); Lee, supra, at 3.
CONCLUSION
For the reasons stated herein, the defendants' motion for summary judgment is GRANTED.