IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TlA RHOADES, )
Plaintiff, §

v,__,:»r._ § C.A. No. N14C-08-019 CLS
LARRY CLINKSCALE, et al., §
Defendants¢.~_ §

Decided: July 2(), 2016

On State Defendants’ Motion for Reargument. GRANTED.



Daniel C. Herr, Esquire, The Norman Law Firm, Wilmington, Delaware,
Attorney for Plaintiff.

Joseph C. Handlon, Esquire, Roopa Sabesan, Esquire, Deputy Attorneys

General, Department of Justice, Wilmington, Delaware, Attorneys for State
Defendants.

SC()TT, J.

On this 20th day of July, 2016, and upon State Defendants’, Warden

Wendi Caple and then-Deputy Warden Robert May (collectively, "State

Defendants"), Motion for Reargument, the Court finds as follows:

l.

 

On December l4, 2015, this Court entered an order denying State
Defendants’ motion to dismiss. State Defendants timely filed their
motion for reargument of that order on December 21, 2015, arguing
that the issue of qualified immunity must be considered before
discovery begins. Plaintiff filed her response in opposition to State
Defendants’ motion on January 25, 2016. On April 25, 2016, the Court
held an office conference with the Parties, where the Court’s rules
regarding the form of motions was discussed and decision on the
pending motion for reargument was reserved.

Superior Court Civil Rule 78(b) requires, inter alia, that motions be
double spaced and typeset in Times New Roman 14-point type, except
that footnotes shall be single-spaced and typeset in Times New Roman
l2-point type, and are limited to six pages in length.l State
Defendants’ motion to dismiss failed to comply with this rule, which

Plaintiff correctly observed in her response in opposition, by applying

 

‘ super. ct. civ. R. 78(b), as emended sept 4, 2014.

l

thereafter, (iii) addressing whether any such particularized right was
clearly established at the time of State Defendants’ alleged
misconduct-in substantial conformity with Rule 78(b) by August 10,

2016.

IT IS SO ORDERED. __________\

Judge Caf n . cott,Jr.

cc: Prothonotary

10

more condensed line spacing.z As to State Defendants’ substantive
qualified immunity argument, it appeared in the last paragraph on the
last page of their motion.3

Plaintiff does not argue that the Court may not reconsider State
Defendants’ motion to dismiss. Instead, Plaintiff argues that State
Defendants’ motion for reargument should be denied, because qualified
immunity does not apply under the circumstances.

"Because qualified immunity is ‘an immunity from suit rather than a
mere defense to liability . . . it is effectively lost if a case is erroneously
permitted to go to trial."’4 The Supreme Court has made clear that
"’the driving force’ behind creation of the qualified immunity doctrine
was a desire to ensure that ‘insubstantial claims against government
officials will be resolved prior to discovery."’5 Thus, the issue of

qualified immunity should be resolved as early as possible.6

2 See State Defs.’ Mot. to-Dismiss (Trans. ID 56274845) (consisting of six pages

comprised of less than double spaced type and footnotes of smaller than l2-point type);
Pl.’s Resp. in Opp. l n.l (Trans. ID 563223l9) (requesting that the Court ignore the last
one and one half pages of State Defendants’ motion).

3 Ia'. at 1[ 8; cf Kostyshyn v. Ba'. ofAcz'justment (Town ofBellefonz‘e), 2007 WL 3380126,
at *3 (Del. Super. Aug. l7, 2007) (finding defect not fatal to Court’s consideration of the

motion where page limit exceeded merely by one conclusion sentence and signature line).

4 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Mitchell v. Forsyth, 472 U.S.
5ll, 526 (1985)).
5 Ia'. at 231-32 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1985) (emphasis

deleted)).
6 Id. at 232 (citing Hum‘er v. Bryant, 502 U.S. 224, 227 (l99l)).

2

5,,_ On a motion for reargument under Superior Court Civil Rule 59(e), the

only issue is whether the Court overlooked something that would have

changed the outcome of the underlying decision.7 Thus, the motion

will be granted only if "the Court has overlooked a controlling

precedent or legal principles, or the Court has misapprehended the law

or facts such as would have changed the outcome of the underlying

decision."g A mo `

to rehash the arguments already decided by the Court or to present new

arguments not previously raised.g A party seeking to have the Court

reconsider the earlier ruling must "demonstrate newly discovered

evidence, a change in the law, or manifest injustice."lo

6;,; ln the interests of justice, the Court will reconsider its order in light of

whether the doctrine of qualified immunity applies to bar Plaintiff’ s

claims against State Defendants, as previously raised in their motion to

simply to rehash the arguments already decided by the Court,

..?¢;=-.-». *‘ 1:'_=\'_=..,=~. E=.-_g.:_.,i,_`s“.=.'_==._~='.-=.¢=`;_~:'.

7 Brenner v. Vill. Green, Inc., 2000 WL 972649,

763 A.Zd 90 (Del. 2000).
8 Kennedy v. lnvacare, Inc., 2006 W

9
1a
‘° Br@nn@r, 2000 wL 972649, at *1.

at *l (Del. Super. May 23, 2000), ajj"d,

L 488590, at *l (Del. Super. Jan. 31, 2006).

e Court never considered State

circumstances here were such that th

Defendants’ qualified immunity argument in the first place.

7._-_.;-,_ Qualified immunity protects government officials, including prison

hen they are performing

officials, "from liability for civil damages w

oes not violate clearly

discretionary functions ‘insofar as their conduct d

which a reasonable

established statutory or constitutional rights of

"’" Courts may grant qualified immunity

person would have known.

on the ground that a purported right was not clearly established,

question of whether the purported right exists at

without resolving the

plied, [qualified immunity] protects all but the

a>l?>

all.‘z "When properly ap

plainly incompetent or those who knowingly violate the law.

8a ln considering whether a right is clearly established, "[t]he contours of
uld

the right must be sufficiently clear that a reasonable official wo

g violates that right."m Further, the

understand that what he is doin

Supreme Court does "not require a case directly on point, but existing

precedent must have placed the statutory or constitutional question

=-¢.-i=»`.=`»-“-¢:i:EéL-;,\-_~'_~q.,..._~_;

-:=._.§._ -.__-_T'_- :..._.-__

oting Harlow

" walls v. Lz» z@, 2011 wL 52383
v. Fitzgerald, 457 U.S. 800, 818 (1982)).

12 Pearson, 555 U.S. at 231_,%

13 Ashcroft v. al-Kidd, 563 U.S. __, __, l3l S. Ct. 2074, 2085 (ZOll) (quoting Malley
v. Briggs, 475 U-`._;S. 335, 341 (1986)). _ __ _
14 Anderson, 483 U.S. at 640; see Pearson, 555 U.S_-_._  "_`  d l 8  "  - 
U.S. 603, 6l4 (l999) ("This inquiry turns on the ‘§‘ _  ' 
action, assessed in light of the legal rules that were '; _ "

taken. ’ ").

7l, at *3 (Del. Super. Aug. l5, 20ll) (qu

  
  

>»15

beyond debate. Further, it is possible that "a robust consensus of

cases of persuasive authority in the Courts of Appeals could itself

clearly establish the federal right respondent alleges."m

9. Thus, State Defendants argue that qualified immunity applies to
Plaintiff’s claims against them, because Plaintiff has failed to identify a
right to a particular procedure or protocol that has been clearly
established by either Supreme Court case law or by a robust consensus
of persuasive authority. Relying on Taylor v. Barkes, a recent Supreme
Court case involving the Eighth Amendment and, specifically, an
incarcerated person’s right to the proper implementation of adequate
suicide prevention protocols," State Defendants identify the right in
question as the failure to train or comply with PREA, i.e., a right to a
particular procedure or protocol, as opposed to the right not to be
subjected to abuse in prison.

lO. ln response, Plaintiff argues that, at the time of Defendant Clinkscale’s

alleged misconduct, the Prison Rape Elimination Act of 2003

_~.,__ __._  ~»_1_..-

]5 Taylor v. Barkes, U.S. at _, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v.
Howards, 566 U.S. , , 132 S. Ct. 2088, 2093 (2012)).

16 Ia'. (quoting City & Cnly. ofScm Francisco v. Sheehan, 575 U.S. , 135 S. Ct.
1765, 1779 (2015)); see Pearson, 555 U.S. at 244 (finding officers entitled to rely on
cases from three Federal C0urts of Appeals and two State Supreme Courts, where no
court of appeals had issued a contrary decision, without facing personal liability for their
actions).

" Tayz@,», _U.s. at , 135 s. ct ar 2044.

ll.

l2.

("PREA") was clearly established and included parameters that states
are to follow to avoid rape within their prisons. Therefore, Plaintiff
argues, because her complaint adequately alleged that State Defendants
failed to comply with PREA, which concems both supervision and
training, qualified immunity does not apply.

However, in her complaint, Plaintiff alleges that "[t]he Eighth
Amendment secures inmates’ rights not to be sexually abused,
assaulted, or raped."]g Further, she alleges that she, "while
incarcerated, had a right to be secure in her bodily integrity and free
from sexual abuse, sexual assaults, and rapes by DOC and Baylor COs
(as well as other DOC and Baylor employees and agents)."lg
While State Defendants correctly point out that Plaintiff` s response in
opposition to their motion to dismiss cited to only one case-Farmer v.
Brennan, a deliberate indifference case involving claims against prison
officials arising from violent and sexual attacks allegedly suffered by
the plaintiff in violation of his Eighth Amendment rights, the Court,
however, recognizes that Farmer clearly reaffirms an inmate’s

constitutional rights under the Eighth Amendment to be free from

excessive physical force, to receive adequate food, clothing, shelter,

___i.~

""*‘_cofn§. 11 96 (Trans. ID 55925261)_,,,
‘9 1a ar 1 97.

and medical care, and to reasonable measures guaranteeing her safety
or preventing harm to her, while limiting prison officials’ constitutional
liability for violations of Eighth Amendrnent rights to instances
constituting deliberate indifference.z° Along the same lines, State
Defendants, in fact, concede that "Plaintiff undoubtedly is entitled not
to be subjected to abuse in prison."zl

l3. Consequently, because the "clearly established" analysis required in
consideration of the applicability of qualified immunity under the
circumstances depends on the contours of the right in question, the
Court is persuaded by Plaintiff’ s argument, albeit cursory,
distinguishing Taylor v. Barkes from the instant case.zz

14. Against the backdrop of over 30 years of Supreme Court cases building
on the "objective legal reasonableness" touchstone of qualified
immunity laid down by Harlow, such as Anderson and Ashcroj‘t, to
name a few, it bears repeating that the clearly established inquiry "must
be taken in light of the specific context of the case, not as a broad

general proposition."% Because the specific context of the case sub

' .,_,_=- - 11

20 511 U.s. 825, 832-34 (1994).

21 State Defs.’ Mot. to Dismiss 11 8.

22 Pl.’s Resp. in Opp. to State Defs.’ Mot. for Rearg. 11 2 (Trans. ID 58472329).

23 Bmsseau v. Haug@n, 543 U.s. 194, 198 (2004) (qu<>ring saucze,» v. Kazz, 533 U.s. 194,

201 (2001)).

judice, a confinement case arising from alleged violations of certain,
arguably clearly established, rights guaranteed by the Eighth
Amendment, differs from cases implicating the Fourth Amendment’s
prohibition of unreasonable searches and seizures and, likewise, the
Fifth Amendment’s right to due process, the Court is keen to avoid the
risk invited by blindly applying the common sense principle espoused
by the Supreme Court cases mentioned above, which was simply
created to avoid "convert[ing] the rule of qualified immunity . . . into a
rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights," to Plaintiff` s claims here and over-
particularizing the rights at issue into oblivion-when all that is
required is a showing "that in the light of pre-existing law the
unlawfulness [of the official’s actions] must be apparent."%

l5. Accordingly, because it appears to the Court that the Parties are very
nearly at opposite ends of the spectrum with regard to the framing of
the legal right(s) at issue and neither has thought to address the

justification for either position, the Court believes that supplemental

__ z_"_'b`

24 Anderson, 483 U.S. at 639-40. For example, in Hinojosa v. Livingston, the Fifth
Circuit rejected the defendant’s framing of the right in question, i.e., the right to an air-
conditioned cell or to around-the-clock medical case, as confusing right with remedy,
where the actual right in question raised by the complaint was the right to be free from
exposure to extremely dangerous temperatures without adequate remedial measures
under the Eighth Amendment, which had been clearly established by existing circuit case

law. 807 F.3d 657, 669 (5th Cir. 2015).

memoranda would be of assistance in fairly determining the important
constitutional issues raised by the Parties.

l6. Furthermore, as it is not entirely clear from the complaint and
subsequent submissions whether Plaintiff bases her § 1983 claim solely
on State Defendants’ alleged violation of the Eighth Amendment or
whether she also bases her claim on State Defendants’ alleged violation
of the Prison Rape Elimination Act of 2003, the Court requests
clarification in light of Davz`s v. Scherer, which requires a showing that
the statute itself or the laws authorizing its promulgation "create a
cause of action for damages or provide the basis for an action brought
under § 1983."25

l7. F or the foregoing reasons, State Defendants’ Motion for Reargument is
hereby GRANTED. As discussed supm, the Parties are directed to file
supplemental memoranda_iwith particular attention to (i) discussing
any need to further particularize an inmate’s Eighth Amendment right
to be free from cruel and unusual punishment beyond the right to be
free from sexual assault from prison guards, (ii) identifying the
appropriate contours the Court should apply to any asserted statutory or

constitutional right allegedly violated by State Defendants, and,

'»:;__ __  =-=p

25 468 U.s. 83, 194 n.12(1984).

