           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHAKIRRA WONNUM,                         )
                                         )
      Plaintiff,                         )
                                         )
      v.                                 )
                                         )        C.A. No. N17C-01-291 ALR
                                         )
MAJOR FRED WAY, III,                     )
WARDEN WENDI CAPLE,                      )
CAPTAIN RAMONE TAYLOR,                   )
and FAITH LEVY,                          )
                                         )
      Defendants.                        )

                            Submitted: June 20, 2017
                             Decided: July 25, 2017

                         MEMORANDUM OPINION

                        Upon State’s Motion to Dismiss
                      DENIED in part; GRANTED in part

                   Upon Plaintiff’s Motion to Amend Complaint
                                     DENIED


Raeann Warner, Esq., Jacobs & Crumplar, P.A., Wilmington, Delaware, Attorney
for Plaintiff Chakirra Wonnum.

Charles H. Toliver, IV, Esq., Morris James LLP, Wilmington, Delaware, Attorney
for Defendant Major Fred Way, III.

Joseph C. Handlon and Roopa Sabesan, Deputy Attorneys General, Delaware
Department of Justice, Wilmington, Delaware, Attorneys for Defendants Warden
Wendi Caple, Captain Ramone Taylor, and Faith Levy.


ROCANELLI, J.
          I.     FACTUAL AND PROCEDURAL BACKGROUND

      This is a civil case arising from prohibited sexual contact between Defendant

Major Fred Way, III (“Defendant Way”), the former Security Superintendent at

Baylor Women’s Correctional Institution (“Baylor”) in New Castle County,

Delaware, and Plaintiff Chakirra Wonnum, an incarcerated Baylor inmate

committed to the custody of the Department of Correction (“DOC”). Defendant

Way engaged in sex acts with Plaintiff in Defendant Way’s office at Baylor with

the door closed on at least two separate occasions in June 2015.1 Plaintiff alleges

that Plaintiff suffered physical and emotional injuries as a result of these sexual

encounters.

      DOC has a mandatory policy prohibiting DOC employees from being alone

in a room with an inmate while the door is closed (“DOC Mandatory Policy”).

The DOC Mandatory Policy requires DOC employees to keep the door to a room

propped open or to have a third-party present at all times while an inmate is

present. According to Plaintiff, the DOC Mandatory Policy was implemented to

protect inmates and DOC employees from physical and sexual abuse.

      In addition to tort claims against Defendant Way, Plaintiff asserts claims of

gross negligence against various DOC officials. First, Plaintiff alleges that Baylor

Warden Wendi Caple, Baylor Correctional Officer Ramone Taylor, and Baylor

1
 Defendant Way was convicted of four misdemeanor charges of Official
Misconduct in connection with his actions.
                                         1
Counselor Faith Levy contributed to Plaintiff’s injuries by acting with gross

negligence in allowing and/or failing to prevent the unsupervised encounters

between Defendant Way and Plaintiff, as required by the DOC Mandatory Policy.

(For ease of reference, the Court refers to Warden Caple, Mr. Taylor, and Ms.

Levy as “DOC Supervisory Defendants.”)

      Additionally, the Complaint states claims against Warden Caple for her

alleged role as a DOC official who was responsible for promoting Defendant Way

to the position of Security Superintendent and assigning him to Baylor. Plaintiff

seeks to amend her Complaint2 to add three additional DOC officials as parties to

this action. Specifically, Plaintiff proposes to add claims against Robert May, John

Sebastian, and Phil Parker for their alleged roles as DOC officials who, along with

Warden Caple, were allegedly responsible for the decision to promote Defendant

Way and assign him to Baylor. Plaintiff alleges that, in light of Defendant Way’s

criminal history and prior misconduct,3 the DOC officials who promoted and


2
  Plaintiff has amended her Complaint twice. At the June 20, 2017 hearing on the
pending Motions, Plaintiff’s counsel indicated that it was necessary to correct
additional clerical errors in Plaintiff’s Second Amended Complaint. This Order
does not address those proposed amendments to correct clerical errors, for which
leave was granted at the June 20 hearing. This Order addresses Plaintiff’s Second
Amended Complaint, which is the current operative pleading in this case and
referenced as the “Complaint.”
3
  Plaintiff alleges that Defendant Way’s criminal history and prior misconduct
includes: (i) a 2002 criminal conviction for Driving Under the Influence; (ii) a
2002 criminal charge for disorderly conduct; (iii) a 2003 civil judgment against
Defendant Way for improper retaliation and excessive force against an inmate
                                         2
assigned Defendant Way contributed to Plaintiff’s injuries by acting with gross

negligence in their decision-making. (For ease of reference, the Court refers to the

DOC officials who were allegedly responsible for Defendant Way’s promotion and

assignment as “DOC Administrative Defendants,” including Warden Caple to the

extent it is alleged that she acted in this capacity.)

      The State of Delaware has appeared on behalf of the DOC Supervisory

Defendants as well as the DOC Administrative Defendants. The State has moved

to dismiss Plaintiff’s claims against the DOC Supervisory Defendants on the

grounds that (i) the DOC Supervisory Defendants are immune from liability under

Section 4001 of the State Tort Claims Act (“State Tort Claims Act”);4 and (ii)

Plaintiff’s claims against the DOC Supervisory Defendants are barred by the

judicially-created public duty doctrine. In addition, the State has moved to dismiss

the claims against Warden Caple to the extent Plaintiff seeks to impose liability on

Warden Caple for her alleged role in the promotion of Defendant Way to the

position of Security Superintendent and assignment of him to Baylor. Finally, the

State opposes Plaintiff’s Motion to Amend the Complaint on the grounds that the

proposed addition of the three additional DOC officials is futile because the DOC

Administrative Defendants have qualified immunity under the State Tort Claims

under Defendant Way’s supervision; and (iv) a 2004 criminal charge for driving
without a license, to which Defendant Way pleaded Not Guilty after initially
failing to appear for court.
4
  10 Del. C. § 4001.
                                            3
Act and are protected by the public duty doctrine. Defendant Way takes no

position on either pending motion.5

      This is the Court’s Memorandum Opinion on the State’s Motion to Dismiss

and Plaintiff’s Motion to Amend the Complaint.

           II.    APPLICABLE LAW AND LEGAL STANDARDS

A.    Superior Court Civil Rule 12(b)(6).

      The State has moved to dismiss Plaintiff’s Complaint against the DOC

Supervisory Defendants pursuant to Superior Court Civil Rule 12(b)(6) for failure

to state a claim upon which relief can be granted which must be decided solely on

the allegations set forth in the complaint.6 The Court shall accept all well-pleaded

allegations in the Complaint as true and make all reasonable inferences in favor of

the non-moving party.7 Factual allegations, even if vague, are well-pleaded if they

provide notice of the claim to the other party.8 The Court should deny the motion

if the claimant “may recover under any reasonably conceivable set of

circumstances susceptible of proof.”9



5
  By Order dated May 24, 2017, counsel was appointed to represent Defendant
Way pursuant to 10 Del. C. § 3925 and Delaware Supreme Court Rule 68.
6
  Walls v. Williams, 2006 WL 1133563, at *1 (Del. Super. Mar. 28, 2006); Jackson
v. Fleming, 2005 WL 2090773, at *1 (Del. Super. Apr. 27, 2005).
7
  Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d
967, 968 (Del. 1978).
8
  Spence, 396 A.2d at 968.
9
  Id.
                                         4
B.    Superior Court Civil Rule 15(a).

      Plaintiff has moved to amend the Complaint pursuant to Superior Court

Civil Rule 15(a).    Where, as here, an opposing party has filed a responsive

pleading to the initial complaint, Rule 15(a) allows Plaintiff to amend the

Complaint only by leave of Court,10 which is reserved to the Court’s discretion11

and “shall be freely given when justice so requires.”12 However, “leave to amend

should be denied when the proposed amendment would be futile.” 13 “A motion for

leave to amend a complaint is futile where the amended complaint would be

subject to dismissal under Rule 12(b)(6) for failure to state a claim.”14

C.    Section 4001 of the State Tort Claims Act.

      The State Tort Claims Act shields State employees, such as the DOC

Supervisory Defendants and the DOC Administrative Defendants, from civil

liability if the State employee’s conduct: (1) arose out of and in connection with

the performance of official duties involving the exercise of discretion, (2) was

performed in good faith, and (3) was performed without gross or wanton



10
   Super. Ct. Civ. R. 15(a).
11
   Farmer v. Brosch, 8 A.3d 1139, 1143 (Del. 2010) (citing Wilson v. Wilson, 2005
WL 147942, at *2 (Del. Super. Jan. 14, 2005)).
12
   Super. Ct. Civ. R. 15(a).
13
   Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 812 (Del. 2016) (internal
citations omitted).
14
   Id. (quoting Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del.
2011)).
                                           5
negligence.15 Plaintiff must establish the absence of only one of these elements to

defeat qualified immunity under the State Tort Claims Act.16

      With respect to Section 4001(1) of the State Tort Claims Act, an act is

considered discretionary where “there is no hard and fast rule as to [the] course of

conduct that one must or must not take.”17 In contrast, an act is non-discretionary

or ministerial “if the act of the official involves less in the way of personal decision

or judgment or the matter for which judgment is required has little bearing of

importance upon the validity of the act.”18 Ministerial acts are performed “in a

prescribed manner”19 and “typically involve conduct directed by mandatory rules




15
   See 10 Del. C. § 4001; Christman v. Dep’t of Health & Soc. Servs., 2014 WL
3724215, at *3 (Del. July 25, 2014) (quoting Jackson v. Minner, 2013 WL
4538321, at *1 (Del. Aug. 23, 2013)). See also Hughes ex rel. Hughes v.
Christiana Sch. Dist., 2008 WL 2083150, at *2 (Del. May 19, 2008) (“In other
words, Section 4001 provides immunity to discretionary acts committed in good
faith, in the course of the performance of official duties and without gross or
wanton negligence.”).
16
   J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2011) (citing 10 Del. C. § 4001).
See also Minner, 2013 WL 4538321, at *1 (“The plaintiff has the burden of
proving the absence of one or more of the elements of immunity.”).
17
   J.L., 33 A.3d at 914 (alteration in original).
18
   Hughes ex rel. Hughes, 2008 WL 2083150, at *3 (quoting Sussex Cty. v. Morris,
610 A.2d 1354, 1358–59 (Del. 1992)).
19
   Jackson v. Minner, 2013 WL 871784, at *6 (Del. Super. Mar. 1, 2013), aff’d,
2013 WL 4538321 (Del. Aug. 23, 2013) (quoting Higgins v. Walls, 901 A.2d 122,
143–44 (Del. Super. 2005)).
                                           6
or policies.”20 Whether an act is discretionary or ministerial is a legal

determination.21

      With respect to Section 4001(3) of the State Tort Claims Act, gross

negligence is a heightened standard of ordinary negligence that is defined as “an

‘extreme departure from the ordinary standard of care’ that ‘signifies more than

ordinary inadvertence or inattention.’”22      The Delaware Supreme Court has

equated gross negligence to criminal negligence under Delaware’s criminal code,23

characterizing the applicable standard as the failure “to perceive a risk . . . of such

nature that failure to perceive it constitutes a gross deviation from the standard of

conduct that a reasonable person would observe in the situation.”24

D.    The Public Duty Doctrine.

      The judicially-created public duty doctrine bars certain claims against State

officials that arise from discretionary conduct.25 The public duty doctrine applies

if the State official owes a duty to the public at large rather than to a specific


20
   J.L., 33 A.3d at 914 (citing Knoll v. Wright, 1988 WL 71466 (Del. June 29,
1988)).
21
   Guitierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del.
Super. July 14, 2015); Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL
2119652, at *4 (Del. Super. May 20, 2014).
22
   Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1199 (Del. 2015)
(internal citations omitted).
23
   Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
24
   11 Del. C. § 231.
25
   J.L., 33 A.3d at 916; Higgins, 901 A.2d at 143 (citing Johnson v. Indian River
Sch. Dist., 723 A.2d 1200, 1203 (Del. Super. 1998)).
                                          7
individual when the alleged tortuous conduct is discretionary in nature. 26 If

Plaintiff’s claims arise from the discretionary acts of the DOC Supervisory

Defendants or the DOC Administrative Defendants, the claims are barred by the

public duty doctrine unless Plaintiff can establish (i) an assumption of an

affirmative duty to act by the defendant; (ii) knowledge by the defendant that

inaction could lead to harm; (iii) some form of direct contact between the

defendant and the injured party; and (iv) justifiable reliance by Plaintiff on an

affirmative undertaking by the defendant.27


                               III.   DISCUSSION

A.    The DOC Supervisory Defendants are Eligible for Qualified Immunity
      under the State Tort Claims Act and the Protection of the Public Duty
      Doctrine but the Lawsuit May Proceed against the DOC Supervisory
      Defendants.

      The DOC Supervisory Defendants are eligible for qualified immunity under

the State Tort Claims Act as State officials acting in the scope of their employment

for the DOC. Moreover, the DOC Supervisory Defendants are public officials who

eligible for protection of the public duty doctrine. Upon consideration of the State

Tort Claims Act and the public duty doctrine, as well as the current record, the




26
   See Minner, 2013 WL 871784, at *3–4; Castellani v. Del. State Police, 751 A.2d
934, 938–39 (Del. Super. 1999), aff’d, 1999 WL 1319361 (Del. Dec. 9, 1999).
27
   Minner, 2013 WL 871784, at *4 (quoting Castellani, 751 A.2d at 938).
                                         8
Court declines to dismiss Plaintiff’s claims against the DOC Supervisory

Defendants as a matter of law.

      i.     Plaintiff states claims of a non-discretionary failure to act against
             the DOC Supervisory Defendants under Section 4001.

      Plaintiff must establish one of three possible avenues of relief in order to

defeat the DOC Supervisory Defendants’ qualified immunity under the State Tort

Claims Act:28 (i) non-discretionary action; (ii) bad faith; or (iii) gross negligence.29

Accepting all well-pleaded allegations in the Complaint as true, the Court finds

that there is a reasonably conceivable set of circumstances susceptible to proof

under which Plaintiff could defeat the DOC Supervisory Defendants’ qualified

immunity because Plaintiff’s cause of action arises from an alleged non-

discretionary failure to act pursuant to the DOC Mandatory Policy.30 Specifically,

the Court finds that the DOC Mandatory Policy’s prohibition of closed-door

encounters between inmates and DOC employees is a “hard and fast rule”31 that

leaves no room for personal judgment. Making all reasonable inferences in favor

of Plaintiff, Plaintiff could establish that the DOC Supervisory Defendants failed to

adhere to a ministerial requirement under the DOC Mandatory Policy by allowing

and/or failing to prevent Defendant Way’s unsupervised interactions with Plaintiff


28
   See supra n. 16.
29
   See 10 Del. C. § 4001(1)–(3).
30
   See id. at § 4001(1).
31
   J.L., 33 A.3d at 915.
                                           9
in Defendant Way’s office. Moreover, the Court finds that Plaintiff sufficiently

alleges that the DOC Supervisory Defendants either had knowledge or were on

notice of the encounters between Plaintiff and Defendant Way such that dismissal

of Plaintiff’s claims on the pleadings pursuant to Superior Court Civil Rule 9(b) is

inappropriate.32 The DOC Supervisory Defendants have been provided sufficient

notice of Plaintiff’s claims against them.33

      Accepting all well-pleaded allegations as true, the Court finds a reasonably

conceivable set of circumstances susceptible to proof under which Plaintiff could

establish a non-discretionary failure to act by the DOC Supervisory Defendants

that would overcome qualified immunity under the State Tort Claims Act.

Therefore, the Court declines to dismiss the claims against the DOC Supervisory

Defendants as a matter of law under the State Tort Claims Act.34


32
   Super. Ct. Civ. R. 9(b) (“Malice, intent, knowledge and other condition of mind
of a person may be averred generally.”)
33
   See McCann Aerospace Machining, LLC v. McCann, 2016 WL 3640368, at *4
(Del. Super. June 30, 2016) (“Civil Rule 9(b) does not require factual exactness.”)
(citing Universal Capital Mgmt., Inc. v. Micco World, Inc., 2012 WL 1413598
(Del. Super. Feb. 1, 2012)); Adams v. Gelman, 2016 WL 373738, at *4 (Del.
Super. Jan. 28, 2016) (holding that Superior Court Civil Rule 9(b) requires a
plaintiff to provide a defendant sufficient notice to defend himself in order to
survive dismissal); TrueBlue, Inc. v. Leeds Equity Partners IV, LP, 2015 WL
5968726, at *6 (Del. Super. Sept. 25, 2015) (holding that Superior Court Civil
Rule 9(b) “must be applied in light of the facts of the case, and less particularity is
required when the facts lie more in the knowledge of the opposing party than of the
pleading party.”) (quoting H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 146
(Del. Ch. 2003)).
34
   See Hale, 2014 WL 2119652, at *5–6.
                                          10
      ii.    Plaintiff states claims upon which relief may be granted against
             the DOC Supervisory Defendants under the public duty doctrine.

      The State also asserts that Plaintiff’s claims against the DOC Supervisory

Defendants are barred by the judicially-created public duty doctrine. If Plaintiff’s

cause of action arose from the exercise of discretion by the DOC Supervisory

Defendants, the public duty doctrine may preclude Plaintiff’s claims.35 However,

the public duty doctrine does not protect the DOC Supervisory Defendants from

civil liability arising from acts of ministerial negligence.36 As previously discussed,

there is a reasonably conceivable set of circumstances susceptible to proof under

which the DOC Supervisory Defendants caused Plaintiff’s injuries by violating a

ministerial rule under the DOC Mandatory Policy. Because the Court finds that

Plaintiff’s cause of action against the DOC Supervisory Defendants includes

allegations of non-discretionary conduct, the Court declines to dismiss Plaintiff’s

claims against the DOC Supervisory Defendants as a matter of law based on

application of the public duty doctrine.

      The Court finds that, accepting all well-pleaded allegations as true and

viewing the Complaint in a light most favorable to Plaintiff, Plaintiff states a claim

upon which Plaintiff could recover against the DOC Supervisory Defendants under

the State Tort Claims Act and the public duty doctrine. Therefore, the Court

35
   As previously discussed, Plaintiff could proceed under the public duty doctrine
for discretionary conduct under certain circumstances. See infra Part II(D).
36
   J.L., 33 A.3d at 916 (internal citations omitted).
                                           11
declines to dismiss the claims against the DOC Supervisory Defendants as a matter

of law pursuant to Rule 12(b)(6).

B.    Plaintiff Cannot Proceed against the DOC Administrative Defendants
      under the State Tort Claims Act and the Public Duty Doctrine.

      The Court finds that Plaintiff does not state a claim upon which relief can be

granted against the DOC Administrative Defendants under the State Tort Claims

Act. With respect to Section 4001(1) of the State Tort Claims Act, the Court finds

that Plaintiff cannot establish that the DOC Administrative Defendants’ decision to

promote Defendant Way to the position of Security Superintendent and to assign

him to Baylor was ministerial such that those decisions were subject to “hard and

fast” rules. Rather, the Court finds as a matter of law that the decision to promote

and assign a DOC employee is a discretionary act.

      With respect to Section 4001(2) of the State Tort Claims Act, Plaintiff does

not allege and the record does not indicate that the DOC Administrative

Defendants acted in bad faith by promoting Defendant Way to Security

Superintendent and assigning him to Baylor.

      With respect to Section 4001(3) of the State Tort Claims Act, the Court finds

that Plaintiff fails to state a claim that the DOC Administrative Defendants’

decision to promote and/or assign Defendant Way was grossly negligent.

Specifically, the Court finds that the alleged prior misconduct of Defendant Way is

sufficiently attenuated in time and circumstances from the incidents underlying this
                                        12
case such that the DOC Administrative Defendants’ failure to identify a propensity

for sexual misconduct or sexual contact with inmates does not rise to the level of

“an extreme departure from the ordinary standard of care.”37 Although the DOC

Administrative Defendants’ discretionary decision to promote Defendant Way to

Security Superintendent and to assign him to Baylor may seem ill-advised with the

benefit of hindsight, the Court declines to hold that the DOC Administrative

Defendants’ actions rise to the level of a “gross deviation from the standard of

conduct that a reasonable [prison official] would observe”38 under the specific

circumstances of this case. Accordingly, even making all reasonable inferences in

a light most favorable to Plaintiff, the Court finds that Plaintiff fails to state a claim

that the DOC Administrative Defendants were grossly negligent by promoting and

assigning Defendant Way.

         Furthermore, if Plaintiff stated a claim upon which relief could be granted

against the DOC Administrative Defendants under the State Tort Claims Act, the

Court finds that the protections of the public duty doctrine cannot be overcome.

First, Plaintiff’s claims against the DOC Administrative Defendants arise from the

discretionary decision to promote Defendant Way to the position of Security

Superintendent and to assign him to Baylor. Second, Plaintiff cannot establish the



37
     Hecksher, 115 A.3d at 1199 (emphasis added).
38
     Jardel, 523 A.2d at 530 (citing 11 Del. C. § 231).
                                           13
applicability of the “special relationship” exception to the public duty doctrine.39

Among other things, the Court finds that the decision to promote and/or assign

Defendant Way does not involve direct contact between the DOC Administrative

Defendants and Plaintiff.

         Accordingly, to the extent the Complaint states claims against Warden Caple

for the decision to promote Defendant Way to the position of Security

Superintendent and to assign him to Baylor, those claims must be dismissed for

failure to state a claim pursuant to Rule 12(b)(6). Furthermore, the Court finds that

the claims against the three additional DOC officials for the decision to promote

and assign Defendant Way would be futile. Therefore, the Court declines to grant

Plaintiff leave to amend the Complaint pursuant to Rule 15(a) where, as here, the

DOC Administrative Defendants have immunity under the State Tort Claims Act

and are protected by the public duty doctrine.

                                IV.   CONCLUSION

         Accepting all well-pleaded allegations as true and viewing the Complaint in

a light most favorable to Plaintiff, Plaintiff states a claim upon which Plaintiff

could recover against the DOC Supervisory Defendants. Therefore, the Court

declines to dismiss the claims against the DOC Supervisory Defendants as a matter

of law pursuant to Rule 12(b)(6).


39
     See Minner, 2013 WL 871784, at *3–4.
                                          14
      On the other hand, accepting all well-pleaded allegations as true and viewing

the facts and proposed amendments in a light most favorable to Plaintiff, there is

no reasonably conceivable set of circumstances under which Plaintiff could

recover against the DOC Administrative Defendants under the State Tort Claims

Act or the public duty doctrine. Accordingly, the Court grants the State’s Motion

to Dismiss the Complaint as to Plaintiff’s claims against Warden Caple that relate

to the decision to promote Defendant Way to the position of Security

Superintendent and assign him to Baylor and, for the same reasons, declines to

grant Plaintiff leave to amend the Complaint pursuant to Rule 15(a).

      NOW, THEREFORE, this 25th day of July, 2017, the State’s Motion to

Dismiss is hereby DENIED in part and GRANTED in part, and Plaintiff’s

Motion to Amend the Complaint is hereby DENIED.

      IT IS SO ORDERED.

                                      Andrea L. Rocanelli
                                      ______________________________
                                      The Honorable Andrea L. Rocanelli




                                        15
