IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARVIN HOLMES,
No. 23 6, 201 5
Plaintiff Below,
Appellant/Cross-Appellee, Court Below—Superior Court
of the State of Delaware in and

V. for New Castle County

DETECTIVE GREGORY D ’ELIA, CA. No. N13 C-12-185

Defendant Below,
Appellee/Cross-Appellant.

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Submitted: September 18, 2015
Decided: December 8, 2015

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
O R D E R

This 8th day of December 2015, after careful consideration of the
parties’ briefs on appeal and cross-appeal and the Superior Court record, it
appears to the Court that:

(1) The pro se appellant, Marvin Holmes (“Holmes”), is an inmate
incarcerated in a Delaware correctional facility. The appellee, Detective
Gregory D’Elia (“Det D’Elia”), is employed by the Newark Police

Department and is represented by counsel.

(2) Holmes has appealed the Superior Court’s Memorandum
Opinion of April 20, 2015, dismissing his civil complaint against Det. D’Elia.1
We ﬁnd no merit to the appeal and afﬁrm the judgment of the Superior Court.

(3) It appears from the record that Det. D’Elia was assigned to
investigate a report of an assault on November 13, 201 1 in Newark, Delaware.
The alleged Victim identiﬁed Holmes as the person who strangled and
attempted to sexually assault her.

(4) Holmes was arrested on January 28, 2012 and was charged with
second degree attempted rape and strangulation. The charges against Holmes
were later dismissed.

(5) On December 23, 2013, Holmes ﬁled a civil complaint alleging
that Det. D’Elia negligently investigated and identiﬁed him as the suspect in
the November 13, 2011 attack. Holmes sought to recover monetary damages
for the physical and mental distress he suffered as a result of being falsely
accused of sexual assault and strangulation.

(6) On February 12, 2014, Det. D’Elia moved to dismiss Holmes’
complaint for insufﬁcient process under Superior Court Civil Rule 4(f) and

for failure to state a claim under Superior Court Civil Rule 12(b)(6). Det.

1 Holmes v. D’Elia, 2015 WL 1889030 (Del. Super. April 20, 2015).
2

D’Elia contended that he was statutorily immune from suit under the County

and Municipal Tort Claims Act (hereinafter the “Tort Claims Act”).2

(7)

(8)

Under 10 Del. C. § 4011(c) of the Tort Claims Act:

[A government] employee may be personally liable
for acts or omissions causing property damage,
bodily injury or death in instances in which the
governmental entity is immune under this section,
but only for those acts which were not within the
scope of employment or which were performed
with wanton negligence or wilful and malicious
intent.3

By order dated March 17, 2014, the Superior Court ruled on Det.

D’Elia’s motion to dismiss.4 The court denied to dismiss the complaint for

insufﬁcient process after ﬁnding that Holmes’ service of process was

sufﬁcient. The court ruled as follows:

Holmes submitted a praecipe initiating service of
process on Detective D’Elia at his place of work,
the Newark Police Department, 220 Elkton Road,
Newark, DE 19711. Per Deputy Sheriff Deane
Cressman, service was made by leaving the relevant
documents with Nate Graber in the Records
Department at the Newark Police Department.

Holmes states in his answering brief that the
Newark Police Department does not give out a
police ofﬁcer’s home address to a person whom the
ofﬁcer has arrested. The Court ﬁnds that service

2 The County and Municipal Tort Claims Act is codiﬁed at 10 Del. C. ch. 40, subch. II.
310 Del. C. § 4011(c).
4 Holmes v. D’Elia, 2014 WL 1083934 (Del. Super. Mar. 17, 2014).

3

(9)

failure to state a claim was not yet ripe for determination and ordered Holmes
to respond to the merits of Det. D’Elia’s immunity defense within sixty days.6
When Holmes submitted several letters in response to the immunity defense,
the Superior Court permitted Det. D’Elia to ﬁle a reply in support of the
motion to dismiss. Holmes ﬁled a response to the reply on February 19, 2015.

(10) By Memorandum Opinion dated April 20, 2015, the Superior
Court dismissed Holmes’ complaint against Det. D’Elia on the basis that the

detective was immune from liability under the Tort Claims Act.7

was properly made under Rule 4(f)(1)(I), “by
delivering copies thereof to an agent authorized by
appointment or by law to receive service of
process.”5

The Superior Court ruled that dismissal of the complaint for

Superior Court found that:

5 Id.
5 Id.

The authority of D’Elia to arrest individuals is
inherent in his job as a detective in the Newark
Police Department and such an act is discretionary.
Holmes contends that there was no physical
evidence to justify the arrest and that D’Elia should
have known that the accusations against Holmes
were false. D’Elia’s investigation, which included
a positive identiﬁcation of Holmes as the attacker,
and arrest of Holmes were within the scope of
D’Elia’s employment. D’Elia’s actions were

7 Holmes v. D ’Elia, 2015 WL 1889030 (Del. Super. April 20, 2015).

4

The

performed in good faith and without gross
negligence.8

This appeal and cross-appeal followed.

 

(11) 5 i'fgzolmes has appealed the April 20, 2015 Memorandum Opinion
dismissing his complaint. Det. D’Elia has ﬁled a cross-appeal from the March
17, 2014 order denying his motion to dismiss the complaint for insufﬁcient
process.

(12) When reviewing a motion to dismiss under Rule 12(b)(6) for
failure to state a claim, the Superior Court must determine whether the
plaintiff “may recover under any reasonably conceivable set of circumstances
susceptible of proof under the complaint.” The Supreme Court reviews a
dismissal under Rule 12(b)(6) de novo to determine Whether the trial judge
erred as a matter of law.10

(13) In this case, upon de novo review, the Court ﬁnds that the

Superior Court properly held, as a matter of law, that Holmes failed to state a

claim upon which relief could be granted.11 Holmes failed to allege facts that,

8 Id., at *2.
9 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
10 Clinton v. Enterprise Rent—A—Car C0., 977 A.2d 892, 895 (Del. 2009).

11 In its April 20 decision, the Superior Court wrote certain sentences that might be read in
isolation as ﬁndings of fact. Read in full context, what the Superior Court was saying was
that Holmes had pled no facts supporting a pleading stage inference that Det. D’Elia had
any improper motive to target Holmes, as opposed to the detective carrying out his
responsibility to investigate leads that might result in solving a serious alleged crime.

5

if taken to be true, would establish that Det. D’Elia’s investigation of Holmes
was performed in the absence of good faith or with gross negligence or “with
wanton negligence or wilful and malicious intent.”12

(14) The Court concludes that the judgment of the Superior Court
should be affirmed on the basis of the Superior Court’s Memorandum Opinion
dated April 20, 2015. With the affirmance of the Superior Court’s ﬁnal
judgment dismissing the complaint for failure to state a claim under Rule
12(b)(6), it is not necessary to address the claim, raised in the cross-appeal,
that the Superior Court erred in an interim order when denying dismissal of
the complaint on the alternative ground of insufﬁcient process under Rule
46113

NOW, THEREFORE IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

Justice 3 a

12 10 Del. C. § 4011(0). Walls v Rees, 569 A.2d 1161, 1165 (Del. 1990).

13 In re General Motors S’holder Litig., 897 A.2d 162, 167 (Del. 2006) (declining to reach
the issues raised in a cross-appeal when the Court concluded that the trial court properly
granted a motion to dismiss).

6

