IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY GREENFIELD, as NeXt
Friend and Guardian ad litem for
ETHAN FORD, a minor,

Plaintiff,
v.

BUDGET OF DELAWARE, INC.,
LAURA MILES, individually and in
her official capacity as DFS director,
VICTORIA KELLY, individually and
in her official capacity as DFS director,
TRINA N. SMITH, individually and in
her official capacity as a family crisis
therapist for DFS, JAMIE ZEBROSKI,
individually and in her official capacity
as a DFS supervisor, CRYSTAL
BRADLEY, individually and in her
official capacity as a DFS senior family
services specialist, JAVONNE RICH,
individually and in her official capacity
as a master family service specialist for
DFS, and ADDITIONAL DFS STAFF
WHOSE NAMES AND TITLES ARE
CURRENTLY UNKNOWN,

Defendants.

V\./VVVVVVVVVVVVVVVVVVVVVV`./VVV

C.A. No. N16C-07-115 FWW

Submitted: December 1, 2016
Decided: February 22, 2017

Upon DFS Defendants’ Motion to Dismiss:
GRANTED.

M

Andrew C. Dalton, Esquire, Bartholomew J. Dalton, Esquire, Dalton & Associates,
P.A., Cool Spring Meeting House, 1106 West Tenth Street, Wilmington, Delaware
19806; Attorneys for Plaintiff.

Jeffrey A. Young, Esquire, Young & McNelis, 300 South State Street, Dover,
Delaware 19901; Attorney for Defendant Budget of Delaware, Inc.

Joseph C. Handlon, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 North French Street, Wilmington, Delaware 19801; Attorney for
Defendants Laura Miles, Victoria Kelly, Trina N. Smith, Jamie Zebroski, Crystal
Bradley, and Javonne Rich.

WHARToN, J.

This 22nd day of February, 2017, upon consideration of the Motion to
Dismiss of Defendants Laura Miles, Victoria Kelly, Trina Smith, Jamie Zebroski,
Crystal Bradley, and Javonne Rich; Tiffany Greenfield’s Response as next friend
of and guardian ad litem for Ethan Ford (“Plaintiff”); and argument on December
1, 2016; it appears to the Court that:

1. On July 15, 2016, Plaintiff brought this action against the above-
mentioned employees of the Division of Family Services (“DFS Defendants”) in
their individual and official capacitiesl Plaintiff alleges that DFS Defendants
conducted no less than four grossly negligent investigations regarding the living
conditions of Plaintiff and his sister.2 Plaintiff argues that DFS Defendants
recklessly “ignored a history of ongoing, unresolved risks in the home” When they
received numerous calls from his relatives requesting State action and received
reports of his destitute living conditions and developmental delays.3 As a result,
Plaintiff argues that DFS Defendants are liable because they recklessly disregarded
their duties as DFS employees to protect Plaintiff in light of the evidence that Was
presented to them.4

2. The Complaint contains the following claims: First, Plaintiff claims

that DFS Defendants Were negligent and grossly negligent in their investigations of

 

1 Pl.’s Compl., at D.l. 1.
2 Id. ar1111.

3 Id.

4 Id.

Plaintiff s living conditions (Count l).5 Second, Plaintiff claims that DFS
Defendants violated 42 U.S.C. § 1983 When they recklessly disregarded their
mandatory duties as state actors to protect Plaintiff (Count ll).6 Third, Plaintiff
claims that DFS Defendants “established a special relationship With the Plaintiff
Ethan Ford that had the effect of restricting his liberty and triggering liability for
the affirmative acts or omissions of state actors” in violation of § 1983 (Count Ill).7
Fourth, Plaintiff claims that Defendants Laura Miles and Victoria Kelly Were
grossly negligent in hiring and supervising their employees (Count IV).8 Fifth, and
finally, Plaintiff claims that DFS Defendants’ conduct amounted to an intentional
infliction of emotional distress onto Plaintiff (Count V).9

3. On September 14, 2016, DFS Defendants filed their Motion to
Dismiss all claims against them.10 First, DFS Defendants argue that Plaintiffs
claims are time-barred pursuant to 10 Del. C. § 8119.11 Second, DFS Defendants
argue that Plaintiff has failed to plead his negligence claims With particularity
pursuant to Superior Court Civil Rule 9(b) because Plaintiff “has failed to identify

any particular defendant Who performed the investigations that are the subject of

 

5 Id. at 1111 20_22.

6 ld. at1111 23-25.

7 ld. at111126-27.

8 Id. at111123_30.

9 Id. at 1111 31-33. Count V also alleges Intentional lnfliction of Emotional Distress against
Defendant Budget of Delaware, Inc. Budget of Delaware, Inc. has not moved to dismiss and,
therefore, the claim against it under Count V is not affected by this Order.

10 Defs.’ Mot. Dismiss, D.I. 10.

“ ld_ at1111 8-9.

the Suit.””

Third, DFS Defendants argue that Plaintiff s constitutional claims
likewise fail because “[p]ersonal involvement is the touchstone for establishing §
1983 liability.”13 Fearth, DFS Defendaan argue that Plaintiff has failed te plead
facts demonstrating gross negligence as required by the DelaWare State Tort
Claims Act (“DSTCA”).14 Finally, DFS Defendants argue that Plaintiff cannot sue
them in their official capacities because sovereign immunity shields liability.15

4. On October 13, 2016, Plaintiff filed his answer to DFS Defendants’
Motion to Dismiss.16 Plaintiff contends that his claims are not time-barred under
the statute of limitations, and even if they are, Plaintiff argues that the statute of
limitations was tolled.17 Moreover, Plaintiff contends that his Complaint “is rife
with such allegations and their specificity, as well as to the roles of the individual
DFS Defendants.”18

5. The Court heard oral argument on this matter on December 1, 2016.

6. A motion to dismiss for failure to State a claim pursuant to Superior

Court Rule 12(b)(6) will not be granted if the “plaintiff may recover under any

reasonably conceivable set of circumstances susceptible of proof under the

 

12 Id. at11 9.

13 Id. at11 11.

14 ld. at1110. See 10 Del. C. § 4001.
15 Id. at11 9, n.6.

16 Pl.’s Resp. Met. Dismiss, D.l. 12.
11 lai at1111 6-9.

18 Id. at11 10.

a)l9

complaint. In ruling on a Rule 12(b)(6) motion, the Court “must draw all

reasonable factual inferences in favor of the party opposing the motion.”Zo
Dismissal is warranted “only if it appears with reasonable certainty that the
plaintiff could not prove any set of facts that would entitle him to relief`.”21

7. The Court first turns to the question of whether DSTCA precludes
claims against DFS Defendants. Under DSTCA, state actors or employees who are
sued in their individual capacities are exempt from liability when: “(l) the alleged
act or failure to act arises out of and in connection with the performance of official
duties involving the exercise of discretion; (2) the act or failure to act was done (or
not done) in good faith; and (3) the act or failure to act was done without gross
negligence.”22 Plaintiff has to prove the absence of one of these elements to defeat
immunity.23

8. Nevertheless, Plaintiff fails to overcome the civil immunity afforded
to the individual DFS Defendants by DSTCA. Plaintiff brought this action against

DFS Defendants and “additional DFS staff whose names and titles are currently

unknown.”24 However, the Complaint only alleges facts about unnamed DFS

 

19 Brewae v. Rebb, 583 A.2d 949, 950 (Del. 1990).
:111 Dee v. Cahill, 884 A.zd 451, 458 (Del. 2005).
lal.
22 See J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2011). See also § 4001; Gutierrez v.
Aa'vanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14, 2015).
33 See Bamas, 33 A.3d at 914; Gan'errez, 2015 wL 4460342, at *4.
34 See D.I. 1.

“caseworkers” collectively.25 Because there are no facts in the Complaint detailing
individual DFS Defendants’ individual involvement in the specific investigations,
Plaintiff has not shown, under any reasonably conceivable set of circumstances
susceptible of proof, that their civil immunity is removed.26 Therefore, Counts l,
IV, and V (as to DFS Defendants) of Plaintiff’ s Complaint are DISMISSED.

9. Relatedly, Counts l and lV of Plaintiffs Complaint must be dismissed
for the additional reason that Plaintiff has failed to plead his negligence and gross
negligence claims in accordance with Rule 9(b). In order to avoid a dismissal
under Rule 12(b)(6), a plaintiff must plead negligence, and thus gross negligence,
with particularity pursuant to Rule 9(b).27 Generally, Rule 9(b) is satisfied when
the pleading advises the defendant “(l) what duty, if any, was breached; (2) who
breached it; (3) what act or failure to act breached the duty; and (4) the party upon

whom the act was performed.”28 The purpose of this Rule is to “(l) provide

 

25 See id.

26 Moreover, the failure to individualize the allegations against DFS Defendants (and additional
unnamed DFS Staff) risks the Court viewing the real defendant as the State of Delaware, thereby
implicating sovereign immunity considerations

y Rulc 9(b) states that “all averments of fraud, negligence or mistake, the circumstances
constituting fraud, negligence or mistake shall be stated with particularity Malice, intent,
knowledge and other condition of mind of a person may be averred generally.”

33 Marphy v. Bayhaal¢h Med. Czr., 2006 wL 509544, at *3 (Del. super. Jan. 9, 2006) (queting
Slade v. Carroll, 2004 WL 440381, at *2 (Del. Super. Feb. 25, 2004)). See also Rinaldi v.
lomega Corp., 1999 WL 1442014, at *7 (Del. Super. Sept. 3, 1999) (“When pleading negligence,
plaintiffs have to meet the heightened standard of Rule 9(b), and must specify a duty, a breach of
the duty, who breached the duty, what act or failure to act caused the breach, and the party who
acted.”); Myer v. Dyer, 542 A.2d 802, 805 (Del. Super. 1987) (“[A] defendant must be apprised
of: (l) What duty, if any, was breached; (2) who breached it, (3) what act or failure to act
breached the duty, and (4) the party upon Whom the act was performed.”).

7

defendants with enough notice to prepare a defense; (2) prevent plaintiffs from
using complaints as fishing expeditions to unearth wrongs to which they had no
prior knowledge; and (3) preserve a defendant’s reputation and goodwill against
baseless claims.”29 A plaintiff, therefore, cannot plead a negligence claim with
conclusory allegations.30

10. In this case, Plaintiff alleges that DFS Defendants were negligent and
grossly negligent in their handling of at least four investigations into Plaintiff s
poor living conditions ln doing so, the Complaint details four investigations
conducted by DFS. As noted above, however, the Complaint states that
unspecified DFS “caseworkers” were the individuals conducting these
investigations and interacting with Plaintiffs mother. The Complaint says nothing
about how individual DFS Defendants were individually involved in these
investigations Without alleging any facts that any particular one of these six
individuals was involved in one of these investigations, it cannot be said that any
individual DFS Defendant was put on notice of the claims against that individual

DFS Defendant.31 While “[t]he point of Civil Rule 9(b) is not exactitude,”32

 

29 1a re Beazeae Lm'g., 2007 wL 625054, at *6 (Del. super. Feb. 26, 2007) (eiting Szaehen v.
Duly Free Int’l, Inc., 1996 WL 33167249, at *5 (Del. Super. Apr. 22, 1996)).

3° See Tews v. Cape Henlepen Seh. Disr., 2013 wL 1087580, at *2 (Del. super. Feb. 14, 2013)
(“The particularity requirement of Rule 9(b) is not satisfied by merely stating the result or a
conclusion of fact arising from circumstances not set forth in the Complaint.”); Doe 30 ’s Mother
v. Bradley, 58 A.3d 429, 462 (Del. Super. 2012) (“[C]laims of negligence . . . may not be
conclusory and must be accompanied by some factual allegations to support them.”).

31 See Prather v. Doroshow, Pasquale, Krawitz & Bhaya, 2011 WL 1465520, at *3 (Del. Super.

8

Plaintiff must plead facts showing who breached their duties to Plaintiff and how
they did so, and here, Plaintiff has failed to meet these standards.

ll. Further, the Court finds that Plaintiff s § 1983 claims must be
dismissed as well for two reasons.33 First, a state actor cannot be held liable in his
or her individual capacity under § 1983 by merely asserting the doctrine of
respondeat superior.34 A supervisor can only be held liable if he or she was “the
moving force [behind] the constitutional violation,” or “exhibited deliberate
indifference to the plight of the person deprived.”35 Hence, in order to establish

liability under § 1983, a plaintiff “must show personal involvement by each

 

Apr. 14, 2011) (“At a minimum, Plaintiff s complaint must place Defendant on notice of the
claim being asserted.”); Murphy, 2006 WL 509544, at *3 (“The purpose of the particularity
requirement is to put the defendant on notice of the claims in order to give the defendant a fair
opportunity to plan a defense.”).

32 Uppal v. Waters, 2016 WL 4211774, at *2 (Del. Super. Aug. 9, 2016) (citing Universal
Capital Mgmt., Inc. v. Micco Worla', Inc., 2012 WL 1413598 (Del. Super. Feb. l, 2012)). The
Court recognizes that there “is no template for success when drafting a complaint that alleges
negligent conduct.” Rose v. 3M Co., 2012 WL 2952106, at *2 (Del. Super. July 19, 2012). The
Court therefore measures the sufficiency of a pleading under Rule 9(b) according to the
particular facts of the case, See id. (citing Garcia v. Signetics Corp., 2010 WL 3101918, at *1
(Del. Super. Aug. 5, 2010)).

33 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .”).

34 see Deputy v. Rey, 2003 wL 367827, at *2 (Del. super. Feb. 20, 2003) (citing pickens v.
Brewington-Carr, 1999 WL 1240910, at *3 (Del. Super. Oct. 8, 1999)). See also Collins v.
Figueira, 2006 WL 1817092, at *3 (Del. Super. June 23, 2006) (“A supervisor’S liability under §
1983 must be based on actual knowledge and acquiescence rather than respondeat superior.”).

33 see Diekens, 1999 wL 1240910, at *3 (quetiag sample v. Dieeks, 885 F.2d 1099, 1117_19 (3d
Cir. 1989)).

defendant.”36 As is the theme in the Complaint, Plaintiff has failed to allege how
DFS Defendants were personally involved in the investigations Second, DFS
Defendants cannot be sued in their official capacities because “[a] Section 1983
claim against a government actor in [his or] her official capacity is considered an
action against the State, and it is well-settled that the State is not a proper
defendant in a Section 1983 action.”37 For these reasons, Counts ll and lll of
Plaintiff s Complaint are DISMISSED.

12. The Court does not need to address DFS Defendants’ argument
regarding the statute of limitations in light of the above decision.38

THEREFORE, DFS Defendants’ Motion to Dismiss is GRANTED.
Counts l, ll, III, IV, and V (as to DFS Defendants) of Plaintiff s Complaint are

DISMISSED.

 

36 See Lane v. Phelps, 800 F. Supp. 2d 646, 649 (D. Del. 2011) (emphasis added) (citing Brito v.
U.S. Dept. of Justice, 2010 WL 3259383, at *2 (3d Cir. Aug. 18, 2010)). See also id. (“A
defendant in a civil rights action ‘must have personal involvement in the alleged wrongs to be
liable,’ and ‘cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved.”’(citations omitted)).

31 see Dapa¢y, 2003 wL 367827, at *2 (citing Hall v. MeGaigan, 743 A.2d 1197, 1206 (Del.
Super. 1999)).

38 lndeed, the Court cannot determine whether this action is barred under § 8119 until it is able to
discern what each DFS Defendant is alleged to have done.

10

This dismissal is without prejudice, however, and Plaintiff is granted leave to

file an Amended Complaint no later than 30 days from the date of this Order.

IT IS SO ORDERED.

 

Fe?i'is W. Wharton, J.

11

