      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JERMAINE DOLLARD and KEISHA )
DOLLARD,                    )
                            )
              Plaintiffs,   )
                            )
         v.                 )            C.A. NO.: N16C-01-102 AML
                            )
RICHARD T. CALLERY, et al., )
                            )
              Defendants.   )

                         Submitted: January 16, 2018
                           Decided: April 16, 2018

Upon Defendants Callery, Division of State Police, and Department of Health
         and Social Services’ Motion to Dismiss: Granted in part

                        MEMORANDUM OPINION


Patrick C. Gallagher, Esquire, and Alexander W. Funk, Esquire, of CURLEY,
DODGE & FUNK, LLC, Dover, Delaware, Attorneys for Plaintiffs.

Michelle D. Allen, Esquire, of LAW OFFICES OF MICHELLE D. ALLEN, LLC,
Hockessin, Delaware, Attorney for Richard Callery, Joseph C. Handlon, Esquire,
and Michael F. McTaggart, Esquire, of the STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys for DHSS and
DSP, respectively.




LeGROW, J.
      Plaintiffs initiated this civil case after the investigation of alleged misconduct

at Delaware’s Office of the Chief Medical Examiner (“OCME”) and retesting of

certain drug evidence revealed that the cocaine Plaintiff was convicted of dealing

was, in fact, powdered sugar. Delaware State Police officers arrested Plaintiff

Jermaine Dollard for drug trafficking in June 2012. Dollard was convicted at trial

and filed an appeal. While Dollard’s appeal was pending, the State commenced an

investigation into alleged misconduct at the OCME. The investigation prompted

officials to retest the evidence in Dollard’s case, at which time the drug evidence

tested as confectioner’s sugar. Now Mr. and Mrs. Dollard (collectively, “Plaintiffs”)

bring civil claims against several OCME employees mentioned in the State’s OCME

investigative report and all police officers involved in Mr. Dollard’s arrest, as well

as the State, Department of Health and Social Services (“DHSS”), and Delaware

State Police (“DSP”).

      Although falsifying evidence plainly violates a criminal defendant’s right to

fair trial, the question presented here is whether Plaintiffs may maintain a claim

against every individual and entity, however remote, involved in a criminal case,

without any other allegations connecting those individuals and entities to the

evidence in this case and alleged misconduct involving evidence. I find the amended

complaint fails to state a claim against almost all Defendants, even when applying

Delaware’s permissive pleading standard. My reasoning follows.

                                           1
Factual and Procedural Background
      The following facts are taken from the amended complaint drawing all

permissible inferences in Plaintiffs’ favor. The Delaware State Police pulled over

Mr. Dollard on June 13, 2012, in New Castle County. After Mr. Dollard’s arrest,

Officer Jeremiah Lloyd drove Mr. Dollard’s vehicle to Delaware Police Troop 2. A

canine inspection of the vehicle supervised by Officer Kristin Carroll indicated the

presence of narcotics. Officer Christopher Sutton then searched inside the vehicle

and found a concealed compartment containing two kilograms of white powder. A

field-test performed by Officer Sutton identified the powder as cocaine.        On

approximately June 25, 2012, Officer Scott McCarthy delivered the powder to James

Woodson, a forensic investigator at the OCME.

      On or about August 14, 2012, Areatha Bailey, an administrative assistant at

OCME, transported the evidence to Irshad Bajwa for testing. Bajwa, a forensic

chemist at OCME, had access to the powder between August 29, 2012, and

September 10, 2012. Bajwa prepared a lab report indicating the powder found in

Mr. Dollard’s vehicle was cocaine. During Mr. Dollard’s trial on October 29, 2013,

Bajwa testified the powder tested positive for cocaine. On November 6, 2013, the

jury convicted Mr. Dollard of Aggravated Possession, Drug Dealing, Conspiracy

Second Degree, Possession of a Controlled Substance, and Possession of Drug

Paraphernalia.


                                         2
         While Mr. Dollard’s appeal was pending before the Supreme Court, the State

commenced an investigation into alleged misconduct at the OCME.                  That

investigation was prompted by events that arose in a criminal trial unrelated to Mr.

Dollard’s case. Specifically, on January 14, 2014, during the criminal trial of Tyrone

Walker,1 a witness opened an exhibit that was supposed to contain 67 blue

Oxycodone pills. Instead, the exhibit contained 14 pink pills. Bajwa had at least

some connection to the evidence in Walker’s trial, and the amended complaint

alleges Bajwa attempted to remove an entry on the evidentiary worksheet in the

Walker case. Bajwa received a Corrective Action Request from OCME relating to

that incident, which generally means he was disciplined for the issue.

         The investigation into the OCME prompted by the events at Walker’s trial

revealed widespread issues within the agency, some of which Plaintiffs contend are

relevant to this case. The investigation yielded two formal reports, one prepared by

the Attorney General’s office and one prepared by Andrews International, as well as

some court proceedings. Drawing from those materials, the amended complaint

alleges misconduct by several OCME employees. According to the complaint, the

investigative reports describe Caroline Honse, the Controlled Substance Unit

Laboratory Manager, as a poor manager who chose favorites among the OCME




1
    State v. Walker, I.D. No. 1202002406.
                                            3
employees.2 Kelley Georgi, a Forensic Evidence Specialist (“FES”), allegedly never

received training to take-in or log evidence. Bailey, an Administrative Specialist,

allegedly worked around narcotics at OCME even though she had no training or

qualifications for such work. Bailey allegedly stashed evidence in her office and

had an uncanny, singular ability to find evidence when no one else could locate it.

One coworker claimed Bailey admitted to being a thief. Despite her own lack of

credentials, Bailey allegedly trained Laura Nichols, who worked as a laboratory

technician. In addition to his misconduct in the Walker trial, Bajwa, a forensic

chemist at OCME, allegedly had a history of failing to document evidentiary

observations in real time, maintain chain of custody, use proper sample sizes for

testing, properly seal evidence, and maintain good work quality. None of these

individuals, however, criminally was charged after the investigation.       As to

Defendant Patricia Phillips, the amended complaint only alleges Phillips worked as

a chemist at the OCME Controlled Substance Unit.

         As to the other OCME Defendants, James Daneshgar, a lab worker at OCME,

reported to investigators that Callery delegated day-to-day leadership of the OCME

to Hal Brown. Brown, in turn, allegedly delegated the leadership to Honse, who

missed work routinely. When the OCME attempted an internal audit after the




2
    Am. Compl. 9.
                                         4
Walker case, John Lucey, the lead auditor, allegedly failed to follow basic

procedures. In Fall 2013, Robyn Quinn replaced Honse as lab manager.

      Certain OCME Defendants were disciplined or charged as a result of the

investigation. Richard Callery, the Chief Medical Examiner and head of OCME,

was suspended from his position pending the result of a criminal investigation into

his activities as an expert witness in other jurisdictions. Farnam Daneshgar, the

Laboratory Manager, was arrested for falsifying business records, possession of

marijuana, and possession of drug paraphernalia. The amended complaint alleges

Farnam Daneshgar also was under investigation for “dry labbing” evidence.

Woodson, a forensic investigator, was arrested for drug trafficking, theft of a

controlled substance, tampering with physical evidence, official misconduct, and

unlawful dissemination of criminal history information.

      Following the investigation and the revelation of evidence that Woodson was

indicted for charges related to the OCME investigation and may have had some

contact with the evidence in Mr. Dollard’s case, the Superior Court granted Mr.

Dollard’s motion for New Trial. The Court ordered retesting of the “brick” evidence

discovered in Mr. Dollard’s vehicle. The retest revealed the “bricks” actually were

confectioner’s sugar. The State then dismissed the charges against Mr. Dollard.

Plaintiffs filed this action in January 2016, alleging Mr. Dollard’s constitutional

rights were infringed. Defendants Brown, Honse, Quinn, Lucey, Georgi, Nichols,
                                        5
Bajwa, Bailey, Phillips, J. Daneshgar (collectively with DHSS and the State of

Delaware, the “DHSS Defendants”), Lloyd, Carroll, Sutton, McCarthy (collectively

with DSP, the “DSP Defendants”), and Richard Callery filed motions to dismiss in

January 2017, and the parties briefed and argued the motions. Defendants F.

Daneshgar and Woodson (collectively, “Non-moving Defendants”) did not move to

dismiss.

The Parties’ Contentions
      The amended complaint advances claims for intentional infliction of

emotional distress (“IIED”), respondeat superior, and loss of consortium, as well as

a claim under 42 U.S.C. § 1983 for deprivation of rights. Count I alleges all

Defendants intentionally or recklessly engaged in outrageous conduct that caused

Mr. Dollard’s imprisonment, and count II alleges defendants Callery, Brown, Honse,

DSP, DHSS, and the State are liable under the theory of respondeat superior for the

actions of the other, individual Defendants. Count III asserts a Section 1983 claim

against DHSS and the State because they were responsible for the OCME during the

time period in question. Count IV alleges a Section 1983 claim against all other

individual Defendants, except DSP, for depriving Mr. Dollard of due process and a

fair trial as guaranteed by the U.S. and Delaware Constitutions. In Count V, Mrs.

Dollard claims loss of consortium against all Defendants for the period of Mr.

Dollard’s imprisonment.


                                         6
      The DHSS Defendants, DSP Defendants, and Callery (collectively, the

“Moving Defendants”) filed separate motions to dismiss. After briefing, Plaintiffs

stipulated to the dismissal of all claims against the State and DHSS. Each of the

remaining Moving Defendants’ briefs raises similar arguments and defenses in

support of their motions.        Summarizing their arguments generally, Moving

Defendants contend: (1) the amended complaint fails to state any claim against any

of them; (2) Plaintiffs’ claims are time-barred because the injury accrued more than

two years before Plaintiffs filed their complaint; (3) Plaintiffs’ claims against the

state actors are barred by sovereign immunity because all the alleged conduct

occurred while Defendants acted in their official capacity; and (4) any remaining

claims against the Defendants are barred by qualified immunity or under the State

Tort Claims Act (the “Tort Claims Act”).

ANALYSIS
      Delaware’s pleading standard under a 12(b)(6) motion to dismiss is minimal,

but not meaningless.3 When considering a motion to dismiss, the trial court will

accept all well-pleaded factual allegations in the complaint as true, and will accept

even vague allegations as “well-pleaded” if they provide defendants notice of a

claim.4 The Court will draw all reasonable inferences in favor of the plaintiff,


3
  Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings, LLC, 27 A.3d 531, 536 (Del.
2011).
4
  Id.
                                            7
denying the motion unless the plaintiff could not recover under any reasonably

conceivable set of circumstances susceptible of proof.5

        Although the United States Supreme Court in the Twombly-Iqbal decisions

enunciated a “plausibility” standard for pleadings in federal court, the lower

“reasonable conceivability” threshold continues to apply in Delaware state courts.6

With regard to alleged civil rights violations under Section 1983, however, there is

disagreement whether a Delaware court should apply a plausibility or conceivability

pleading standard.7 In my view, settled conflict of laws principles require that this

Court apply its own procedural rules, including pleading rules, to all claims, even

those arising under federal law.8 Applying the “conceivability” standard does not,

however, render federal precedent meaningless to the analysis of this case. Under


5
  Id.
6
  Id. at 537.
7
  Plaintiffs argue Delaware’s traditional conceivability standard should apply. See Spence v. Funk,
396 A.2d 967, 968 (Del. 1981). Federal courts, however, apply the heightened plausibility
standard to Section 1983 claims. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“. . . [t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face . . . .’ A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged . . . . [I]t asks for more than a sheer possibility that a defendant
has acted unlawfully . . . . Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”). In addition, there is some precedent for applying
the heightened plausibility standard in Delaware. See Eskridge v. Hutchins, 2017 WL 1076726, *2
(Del. Super. March 22, 2017) (“. . . the Court holds that a Section 1983 claimant in a Delaware
State court must plead his or her claim with sufficient particularity to satisfy the plausibility
standard. The Court bases its decision on (1) the standard articulated by the United States Supreme
Court for federal courts in Section 1983 pleading; and (2) the application of a heightened pleadings
standard in a significant number of Delaware Superior Court decisions issued to date.”).
8
  RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122 (AM. LAW INST. 1971); Meyers v. Intel
Corp., 2015 WL 227824, at *3 (Del. Super. Jan. 15, 2015).
                                                   8
either standard, Plaintiffs must allege facts that place Defendants on notice of a

claim. Notwithstanding its length, the Amended Complaint largely fails to do that.

      A. The amended complaint fails to state a claim for IIED against all
         defendants except Bailey and Bajwa.
      Plaintiffs argue all Defendants are liable for IIED due to the injuries caused

by Mr. Dollard’s deprivation of a fair trial and his false imprisonment. “A claim for

intentional infliction of emotional distress . . . requires proof that the [defendant]

intentionally engaged in extreme or outrageous conduct that caused severe emotional

distress.”9 Outrageous conduct is “conduct that exceeds the bounds of decency and

is regarded as intolerable in a civilized community.”10 “It is for the court to

determine, in the first instance, whether the defendant’s conduct may reasonably be

regarded as so extreme and outrageous as to permit recovery.”11

      The amended complaint names a large number of defendants, each with

varying degrees of involvement in Mr. Dollard’s criminal case. With the exception

of defendants Bailey and Bajwa, however, the amended complaint universally fails

to allege facts against any other Moving Defendant sufficient to support an IIED

claim. The Moving Defendants named in this count generally may be divided into

the following categories: (1) the DSP officers, (2) the OCME supervisors, (3) the


9
  Hunt ex rel. DeSombre v. Dept. of Safety & Homeland Sec., 69 A.3d 360, 367 (Del. 2013).
10
   Goode v. Bayhealth Med. Ctr., Inc., 2007 WL 2050761, at *2 (Del. July 18, 2007).
11
   Hunt ex rel. DeSombre, 69 A.3d at 367 (quoting the RESTATEMENT (SECOND) OF TORTS § 46(h)
(AM. LAW INST. 1965)).
                                            9
OCME employees not involved in the chain of custody in Mr. Dollard’s case, and

(4) the OCME employees involved in the chain of custody in Mr. Dollard’s case.

       As to the DSP officers involved in Mr. Dollard’s case, the amended complaint

simply alleges that they investigated Mr. Dollard, pulled his car over, discovered a

large amount of white, powdery substance in a hidden compartment that field-tested

as cocaine, and turned the evidence over to the OCME. From those facts, and the

fact the substance tested as sugar two years later, the Plaintiffs seek an inference that

one or more DSP officers planted or tampered with evidence.

       Plaintiffs’ allegations regarding the OCME supervisors are even more

tangential as it relates to Mr. Dollard’s criminal case. Nothing in the amended

complaint alleges the OCME supervisors were involved in, or even aware of, Mr.

Dollard’s criminal case. Rather, the amended complaint merely regurgitates the

mismanagement of the OCME detailed in the investigative reports by the Attorney

General’s office and Andrews International. From these reports, Plaintiffs seek an

inference that the OCME supervisors’ mismanagement of the office deprived him of

a fair trial.

       Similarly, Plaintiffs’ allegations regarding the OCME employees not in the

chain of custody in Mr. Dollard’s criminal case fail to permit any inference that those

defendants’ conduct caused Mr. Dollard’s emotional distress. Plaintiffs allege these


                                           10
OCME employees were ill-prepared to perform their jobs and often failed to follow

procedures. The amended complaint, however, does not allege they were involved

in processing, transporting, or handling the evidence in Mr. Dollard’s criminal case,

or even were aware of his case.

      In their IIED claims against these first three categories of Moving Defendants,

Plaintiffs essentially ask this Court to infer that because an evidentiary exhibit

retested over two years after Mr. Dollard’s arrest turned out to be confectioner’s

sugar, it is reasonable to infer that anyone in the chain of custody, or anyone who

worked at the OCME office and was mentioned in the later investigation of that

office, might have planted, dry-labbed, or otherwise tampered with the evidence.

That inference, more accurately characterized as a “leap,” is not one this Court fairly

may draw without some additional allegation tying the individual defendant to both

the chain of custody and some history of misconduct that the Court may infer also

occurred in this case.

      In contrast to the first three categories, Plaintiffs’ allegations permit an

inference, under Delaware’s liberal pleadings standard, that Bailey and Bajwa

engaged in outrageous conduct—specifically tampering with evidence in Mr.




                                          11
Dollard’s case—that caused Mr. Dollard’s emotional distress.12 The amended

complaint alleges Woodson was charged with trafficking cocaine and tampering

with physical evidence. Bailey allegedly kept separate boxes of evidence even

though she was not trained or authorized to handle evidence. Bajwa mishandled

evidence in the Walker case and had a history of tampering with evidence. These

defendants also specifically are tied to the chain of custody in Mr. Dollard’s case.

Woodson received Mr. Dollard’s evidence from Officer McCarthy and deposited it

at the OCME. Bailey received the evidence from Woodson and transported it to

Bajwa, whose testing purportedly indicated the powder was cocaine. Two years

later, the evidence was retested and identified as confectioner’s sugar. Under the

plausibility standard applicable at this stage of the proceedings, the amended

complaint alleges sufficient facts for the Court to infer that Bailey and/or Bajwa may

have tampered with the evidence in this case.

       B. The amended complaint fails to state a Section 1983 claim against all
          individual Defendants except Bailey and Bajwa.
       The amended complaint alleges all individual Defendants deprived Mr.

Dollard of his due process rights and a fair trial through their policies and practices




12
  Notwithstanding the State’s argument otherwise, allegations that a state employee planted,
tampered with, or falsified evidence in a criminal case, leading to a defendant’s wrongful
conviction and incarceration, more than adequately states a conceivable claim for IIED.
                                            12
that were inconsistent with the proper handling of evidence.13                       Under 42

U.S.C. § 1983, “[e]very person who, under color of any statute . . . of any State . . .

subjects or causes to be subjected, any citizen of the United States . . . 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 . . . .”14 To prevail, a

plaintiff must demonstrate (1) deprivation of a right under the United States

Constitution (2) by a person acting under color of State law.15

       To state a claim against a particular defendant under Section 1983, Plaintiffs

must allege specific conduct by that defendant that violated Mr. Dollard’s

constitutional rights.16 Plaintiffs may not plead in a collective fashion by naming a

group of defendants without identifying “who is alleged to have done what to

whom.”17 Requiring individualized pleading for a Section 1983 claim does not, as

Plaintiffs argue, improperly heighten Delaware’s pleading standard from

conceivability to plausibility. Federal law is clear that a Section 1983 claim must be

stated against each individual defendant because such a claim may not be made

against a state or its agencies.18 Therefore, by requiring a plaintiff to plead the “who”

13
   Plaintiffs initially alleged Section 1983 claims against DHSS and the State, but withdrew those
claims in response to Defendant DHSS’s motion to dismiss. Pls.’s Answer Br. Def. DHSS’s Mot.
Dismiss at 21.
14
   Civil Action for the Deprivation of Rights, 42 U.S.C. § 1983 (2016).
15
   West v. Atkins, 487 U.S. 42, 49 (1988).
16
   42 U.S.C. § 1983.
17
   Robbins v. Oklahoma, 518 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in the original).
18
   Will v. Michigan Dept. St. Police, 491 U.S. 58 (1989).
                                               13
and “what” of a Section 1983 claim, the courts avoid allowing a plaintiff to plead in

the collective and thereby pursue a claim that, in effect, is one against the state.

Although the level of specificity required may be slightly lower under Delaware’s

pleading standard, substantive federal law precludes the generalized “kitchen sink”

approach employed in much of the amended complaint.

      Applying this standard, Plaintiffs have not pleaded a Section 1983 claim

against any moving defendant except Bailey and Bajwa. The amended complaint

employs a scattershot approach that fails adequately to allege any facts implicating

any other moving DHSS Defendant in an action that conceivably violated Mr.

Dollard’s constitutional rights. The amended complaint discusses at length the

OCME’s negligent operation around the time Dollard first was arrested and tried.

Notwithstanding the low pleading standard, however, Plaintiffs have alleged no

circumstances where any moving defendant acting in their individual capacity, other

than Bailey and Bajwa, was involved in Mr. Dollard’s case or engaged in conduct

that affected Mr. Dollard’s rights. Nothing in the amended complaint alleges any of

the other individual moving DHSS Defendants came in contact with or even was

aware of Mr. Dollard’s case.

      Plaintiffs seek to attach liability to the OCME supervisor defendants—i.e.,

Callery, Brown, and Honse—by arguing their allegedly negligent supervision

permitted a custom at the OCME that deprived Mr. Dollard of his constitutional
                                         14
rights. In support of this theory, Plaintiffs first cite Parkell v. Danberg,19 in which

the Third Circuit Court of Appeals held supervisors can be liable under Section 1983

if they (1) establish a “policy, practice, or custom which directly caused the

constitutional harm;”20 or (2) “participated in violating plaintiff’s rights, directed

others to violate them, or, as the persons in charge, had knowledge of and acquiesced

in their subordinates’ violations.”21 Plaintiffs, however, do not allege the OCME

supervisors established a policy or custom designed to dry lab and falsify evidence,

nor do they allege the supervisors had knowledge of and acquiesced to the violations.

Rather, Plaintiffs allege that the supervisors deliberately were indifferent to the

actions of their subordinates.22 Deliberate indifference, however, is insufficient to

establish supervisor liability under Parkell. Accordingly, the amended complaint

fails to allege facts sufficient to establish supervisor liability under Parkell.

       In an effort to expand the scope of supervisor liability under Section 1983 to

fit their custom-based argument, Plaintiffs cite Natale v. Camden Cty. Corr. Facility,

in which the Third Circuit held:

             [A] . . . custom may . . . exist where ‘the policymaker has
             failed to act affirmatively at all, [though] the need to take
             some action to control the agent of the government is so
             obvious, and the inadequacy of existing practice so likely
19
   833 F.3d 313 (3d Cir. 2016).
20
   Id. (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (emphasis
added)).
21
   Id.
22
   Pls.’ Answer Br. DHSS’s Mot. Dismiss at 26.
                                            15
               to result in the violation of constitutional rights, that the
               policymaker can reasonably be said to have been
               deliberately indifferent to the need.23
The Natale custom analysis, however, applies to entity liability, not supervisor

liability.24 Here, the amended complaint arguably alleges that Mr. Dollard was

deprived of his constitutional rights due to the obvious inadequacy of OCME’s

practices and controls. At best, however, such a claim might succeed against DHSS

under Natale’s entity liability analysis. For reasons explained below, however, and

as Plaintiffs already conceded by dismissing their claims against DHSS, Plaintiffs’

claims against DHSS are barred by sovereign immunity.25

       Finally, the amended complaint fails to allege any conduct whatsoever on

behalf of the DSP officers that permits an inference that they engaged in any conduct

that violated Mr. Dollard’s rights. The mere fact that the police arrested Mr. Dollard

and collected evidence that two years later tested as confectioner’s sugar does not

permit an inference the DSP officers planted evidence or otherwise violated Mr.

Dollard’s constitutional rights.

       C. Plaintiffs’ respondeat superior claims are moot.

23
   318 F.3d 575, 584 (3d Cir. 2016) (internal quotation marks omitted).
24
   Id. (“There are three situations where acts of a government employee may be deemed to be the
result of a policy or custom of the government entity for whom the employee works, thereby
rendering the entity liable under § 1983.”) (emphasis added).
25
   Moreover, even if the Natale customs analysis extended to the OCME supervisors, those claims
also would be barred under principles of sovereign immunity. The claim that a policymaker
deliberately was indifferent to the need for a specific policy or practice necessarily implicates a
supervisor’s official job duties and cannot be viewed as an individual capacity claim.
                                                16
       Count II of the amended complaint advances claims against defendants

Callery, Brown, Honse, DSP, DHSS, and the State under the theory of respondeat

superior for employing or supervising the other, individual Defendants. On January

17, 2018, the Court granted a stipulation of dismissal for the State and DHSS, and

all claims against those Defendants therefore are moot.26 As Plaintiffs largely

conceded at oral argument,27 defendants Callery, Brown, and Honse are not the

individual DHSS Defendants’ employers and therefore cannot be liable under the

theory of respondeat superior.28             Because I conclude the claims against the

individual DSP Defendants fail to state a claim, Plaintiffs’ respondeat superior claim

against DSP is moot. All Plaintiffs’ respondeat superior claims therefore fail to

state a cognizable claim.




26
   Docketed January 17, 2018 (Transaction I.D.: 61576674).
27
   Dollard v. Callery, C.A. No. N16C-01-102AML, at 65-67 (Del. Super. Jan. 16, 2018)
(TRANSCRIPT).
28
   Although the parties did not identify case law directly on point, in other, similar contexts, this
Court has concluded that a supervisor is not an employer. See, e.g., Stoppel v. Henry, 2011 WL
55911, at *4 (Del. Super. Jan. 4, 2011); Meltzer v. City of Wilmington, 2008 WL 4899230, at *1
(Del. Super. Aug. 6, 2008); see also 19 Del. C. § 1702(2) (“Employer” for the purposes of the
Delaware Whistleblowers’ Protection Act “means any person, partnership, association, sole
proprietorship, corporation or other business entity, including any department, agency,
commission, committee, board, council, bureau, or authority or any subdivision of them in state,
county or municipal government. One shall employ another if services are performed for wages or
under any contract of hire, written or oral, express or implied.”); 19 Del. C. § 1302(p) (defining
“public employer” or “employer” for purposes of the Public Employment Relations Act as “the
State, any county of the State or any agency thereof, and/or any municipal corporation,
municipality, city or town located within the State or any agency thereof, which upon the
affirmative legislative act of its common council or other governing body has elected to come
within the former Chapter 13 of this title or which hereafter elects to come within this chapter, or
which employs 100 or more full-time employees.”).
                                                 17
       D. Mrs. Dollard’s loss of consortium claim is derivative and therefore
          only can proceed against the remaining Defendants.
       Mrs. Dollard claims loss of consortium against all Defendants. Loss of

consortium is a derivative claim that does not survive if the underlying claims, in

this case intentional infliction of emotional distress and Section 1983, are

extinguished.29 Accordingly, Mrs. Dollard only may maintain her loss of consortium

claim against Bailey, Bajwa, and the Non-moving Defendants.

       E. The amended complaint adequately alleges facts that, if true, would
          toll the statute of limitations.
       Moving Defendants contend Plaintiffs’ claims are barred by the statute of

limitations because Mr. Dollard’s arrest occurred in June 2012, and personal injury

actions and constitutional claims are time-barred after two years.30 In response,

Plaintiffs argue their claims are premised on injuries unaccompanied by force and

therefore are subject to a three-year limitations period.31 Further, Plaintiffs argue

the statute of limitations was tolled because their injuries inherently were

unknowable or Defendants fraudulently concealed their actions.

       The statute of limitations is an affirmative defense, but it may be asserted in a

motion to dismiss.32 Here, there is a dispute as to whether a two- or three-year statute


29
   Jones v. Elliott, 551 A.2d 62, 64 (Del. 1988).
30
   10 Del. C. § 8119.
31
   10 Del. C. § 8106(a).
32
   Gadow v. Parker, 865 A.2d 515, 519 (Del. 2005) (“The Superior Court Civil Rules expressly
permit a defendant to raise the defense of limitations in a motion to dismiss or in a first responsive
pleading to the complaint.”).
                                                 18
of limitations applies.33 Plaintiffs argue that their claims are based on injuries

unaccompanied by force, and that 10 Del. C. § 8106 provides for a three-year statute

of limitations in such cases. On the other hand, DHSS cites a case in which this

Court applied a two-year statute of limitations to IIED claims.34 The Court need not

resolve that issue, however, because the amended complaint alleges sufficient facts

to support a conclusion that the action was tolled until at least January 2014, two

years before Plaintiffs initiated this action.

       Generally, a cause of action accrues when the wrongful act occurs.35 A

“plaintiff’s ignorance of injury or loss will not delay the accrual of his cause of

action.”36 The “time of discovery” exception applies, however, when the injuries

are both (1) “inherently unknowable,” and (2) sustained by a “blamelessly ignorant”

plaintiff.37 Additionally, the statute is tolled if the injury fraudulently was concealed.

“Fraudulent concealment requires an affirmative act of concealment or ‘actual

artifice’ by a defendant that prevents a plaintiff from gaining knowledge of the

facts.”38




33
   Compare Def. Callery’s Mot. Dismiss 15, with Pls.’ Answer to Def. Callery’s Mot. Dismiss 28.
34
   Def. DHSS’s Reply Br. Supp. Mot. Dismiss 16 (citing Ayres v. Jacobs & Crumplar, P.A., 1996
WL 769331, at *5 (Del. Super. Dec. 31, 1996)).
35
   Isaacson, Stolper & Co. v. Artisan’s Sav. Bank, 330 A.2d 130 (Del. 1974).
36
   Kaufman v. C.L. McCabe & Sons, Inc., 603 A.2d 831, 834 (Del. 1992) (citing Mastellone v.
Argo Oil Corp., 82 A.2d 379 (Del. 1951)).
37
   Id. at 835.
38
   Weiss v. Swanson, 948 A.2d 433, 451-52 (Del. Ch. 2008).
                                              19
         Although Mr. Dollard’s arrest occurred in June 2012, his alleged injury—the

deprivation of a fair trial through falsified evidence—only was discovered in late

2014.       The amended complaint adequately alleges Mr. Dollard’s injury was

unknowable or fraudulently was concealed by unknown individuals working at

OCME who falsified test results, dry-labbed evidence, or covertly replaced evidence

with confectioner’s sugar. Plaintiffs filed this case in January 2016, and the amended

complaint permits a reasonable inference that the statute of limitations was tolled

until late 2014, when the falsified evidence was discovered. The defendants who

remain in the case, however, may renew a statute of limitations argument, if

appropriate, on a fuller record.

         F. Sovereign immunity does not bar Plaintiffs from suing DSP or Callery
            in his individual capacity, but does bar Plaintiffs from suing DHSS.
         Although Defendants’ sovereign immunity arguments are moot because I

already have concluded the amended complaint fails to state a claim against these

defendants, I nonetheless briefly address those arguments for the sake of a complete

record. Callery argues all claims against him are barred under sovereign immunity

because all alleged wrongdoing occurred while he was acting under color of state

law in his official capacity.39           Regarding Callery, Plaintiffs argue sovereign

immunity does not apply because they are suing Callery solely in his individual



39
     See Ringer v. Smith, 1994 WL 750319, at *2 (Del. Super. Nov. 23, 1994).
                                                20
capacity. Additionally, because Plaintiffs brought claims against DSP and DHSS,

those claims also must demonstrate waiver of sovereign immunity.

       1. Sovereign immunity does not bar claims against Callery in his
          individual capacity.
       When it is unclear from a complaint whether a plaintiff intends to sue a

defendant in his individual or official capacity, the Third Circuit employs a “course

of proceedings” test.40 Under this test, the Court examines “the substance of the

pleadings and the course of proceedings in order to determine whether the suit is for

individual or official liability,”41 regardless of whether the complaint identifies the

capacity in which a defendant is sued. The Court considers “the nature of the

plaintiff’s claims, requests for compensatory or punitive damages, and the nature of

any defenses raised in response to the complaint, particularly claims of qualified

immunity.”42 The essential inquiry is whether a plaintiff’s intention to hold a

defendant personally liable fairly can be ascertained from the pleadings.43

       Here, apart from the supervision claim under Section 1983, it appears

Plaintiffs intended to sue Callery in his individual capacity.44              The amended

complaint alleged Callery acted in an intentional manner. Plaintiffs sought punitive


40
   Davis v. Thomas, 2009 WL 3112318, at *3 (D. Del. Sept. 25, 2009).
41
   Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993).
42
   Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001).
43
   Davis, 2009 WL 3112318, at *3.
44
   As previously noted, Plaintiffs’ claims against Callery under Section 1983 relating to OCME
policies or lack thereof are by their nature official capacity claims. See supra n. 25.
                                             21
damages from all individual Defendants, including Callery, which are unavailable

when suing an individual solely in his official capacity. In their response to Callery’s

motion to dismiss, Plaintiffs explicitly stated that they intended to sue Callery in his

individual capacity. Plaintiffs’ counsel affirmed this at oral argument. Accordingly,

I find Plaintiffs intended to sue Callery in his individual capacity and, if the

complaint stated a valid claim against him, he therefore could not avoid suit under

principles of sovereign immunity.

       2. Sovereign immunity bars Plaintiffs from suing DHSS, but not DSP
          because DSP has waived immunity up to the limits of its insurance
          coverage.
       Under the doctrine of sovereign immunity, a state agency may not be sued

without its consent.45 “The General Assembly, however, can waive sovereign

immunity by an Act that clearly evidences an intention to do so.” 46 Therefore, the

first requirement for bringing a claim against a state agency is identifying an

enactment waiving sovereign immunity.47 Maintaining an insurance policy for the

government agency is one way the State can waive sovereign immunity. 48

       Here, Plaintiffs failed to identify a waiver of immunity for DHSS. DHSS filed

an affidavit from the Insurance Coverage Administrator stating DHSS has not


45
   Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004).
46
   Id.
47
   Id. at 573.
48
   Janowski v. Div. of State Police Dep’t of Safety and Homeland Sec., 2009 WL 537051, at *3
(Del. Super. Feb. 27, 2009).
                                            22
purchased insurance coverage that would be applicable to this case.49 Because

Plaintiffs have failed to establish waiver by statute or insurance, sovereign immunity

bars Plaintiffs’ claims against DHSS. The parties conceded at oral argument,

however, that DSP has insurance coverage. Accordingly, had Plaintiffs stated a

claim against DSP, sovereign immunity would not bar that claim.

       G. Bajwa is immune from suit for claims based on his in-court testimony
          and his expert report admitted into evidence.
       Bajwa argues he is immune from any claim relating to his in-court testimony

and from “his testing of the Dollard drug evidence.”50 Plaintiffs argue the absolute

privilege relating to witness testimony only extends to claims relating to injury to

reputation, and that any immunity beyond such reputation-based claims extends only

to police officers.51

       Absolute immunity from civil suit for testimony provided in judicial

proceedings is an English common law rule adopted throughout this country. 52

Many American jurisdictions, including Delaware, require that the testimony at issue



49
   Ex. G to DHSS’s Mot. Dismiss at 2.
50
   DHSS’s Mot. Dismiss 13 n.21.
51
   Plaintiffs also argue Bajwa waived this argument by failing to raise it in the body of DHSS’s
opening brief. Given, however, the myriad issues and allegations against the various defendants
DHSS represents, it was understandable, if not ideal, that the argument was contained in a footnote.
Plaintiffs had full opportunity to consider and respond to the argument, and the Court therefore
will consider the merits of the defense.
52
   See Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983) (citing Cutler v. Dixon (1585) 76 Eng. Rep.
886; Anfield v. Feverhill (1614) 80 Eng. Rep. 1113; Henderson v. Broomhead (1859) 157 Eng.
Rep. 964, 968).
                                                23
was relevant to the judicial proceeding.53 Outside that threshold element, the

immunity applies, even if the witness’s statement was false and malicious.54

       It is settled law that Plaintiffs may not maintain a Section 1983 claim relating

to Bajwa’s testimony at Mr. Dollard’s criminal trial. In Briscoe v. LaHue, the United

States Supreme Court held that all witnesses, including police officers, absolutely

are immune from Section 1983 liability for testimony at a criminal trial, even if that

testimony amounted to perjury.55 Although Plaintiffs argue the holding in Briscoe

was limited to police officers’ testimony, the Supreme Court unequivocally held the

immunity applies to all witnesses, as well as to lawyers and judges.56

       As to Mr. Dollard’s IIED claim, Plaintiffs argue that absolute immunity

applies only to claims for injury to reputation, such as defamation or similar claims.

Although there is some Delaware case law supporting that argument,57 there is no

logical reason supporting limiting the immunity to particular types of civil claims.

First, the United States Supreme Court’s decision in Briscoe makes clear that the

immunity extends to Section 1983 claims. Second, the policy underlying the


53
   Id. at 331-32.
54
   Id. at 332.
55
   Id. at 345.
56
   Id. at 334-36, 341-44.
57
   See Adams v. Gelman, 2016 WL 373738, at *3 (Del. Super. Jan. 28, 2016) (holding that absolute
immunity applies to claims other than defamation, but is limited to claims that involve injury to
reputation); Hoover v. Van Stone, 540 F. Supp. 1118, 1124 (D. Del. 1982) (extending application
of the privilege to non-defamatory, yet similar, claims in order to combat artful pleadings designed
to circumvent the privilege).
                                                24
immunity is not limited to particular types of civil actions, and its effect would be

lost if the immunity was so limited. The immunity exists to insulate any witness

from fear that their testimony later will subject them to a civil claim for damages.

That is, the immunity exists to promote full and complete fact-finding in a judicial

proceeding, without a witness coloring his or her testimony out of fear of reprisal.58

Even in cases in which a witness allegedly perjured himself, the immunity shields

him from civil suit for that testimony.59 To cabin the “absolute immunity” for

testimony to claims for injured reputation effectively would swallow the rule and,

with it, the policy it intends to advance. Other courts have held the immunity extends

beyond reputation-based claims.60 As Judge Learned Hand explained,

              As is so often the case, the answer must be found in a
              balance between the evils inevitable in either alternative.
              In this instance it has been thought in the end better to
              leave undressed the wrongs done by dishonest officers
              than to subject those who try to do their duty in constant
              dread of retaliation.61
       That is not to say, however, that the immunity extends to all actions Bajwa

took relating to this case. Bajwa is immune for the claims relating to the testimony

he gave, and likely to statements contained in his report to the extent it was admitted



58
   Briscoe, 460 U.S. at 333; Imbler v. Pachtman, 424 U.S. 409, 440 (1976).
59
   Briscoe, 460 U.S. at 341-42.
60
   Franklin v. Terr, 201 F.3d 1098, 1102 (9th Cir. 2000) (holding that absolute immunity extends
to civil claims for conspiracy to commit perjury); Simms v. Seaman, 69 A.3d 880 (Conn. 2013)
(holding claims of common law fraud and IIED are barred by absolute immunity).
61
   Gregoire v. Biddle, 177 F.2d 579, 581 (1949).
                                              25
into evidence at trial, but he is not necessarily immune from other actions he may

have taken, even if those actions related to or facilitated Mr. Dollard’s trial.62 I am

skeptical that the immunity extends to any testing Bajwa may (or may not) have

performed, or to any of the other alleged wrongdoing to which Plaintiffs vaguely

allude. At this stage of the proceedings, however, specifics are illusive. The

determination of the scope of Bajwa’s immunity must await a more developed

factual record.

       H. Plaintiffs’ claims against remaining Defendants are not barred by
          qualified immunity or the Tort Claims Act.
       Callery and the DHSS Defendants argue they are shielded from suit by

qualified immunity and the Tort Claims Act. As discussed above, Plaintiffs’ Section

1983 claim fails against all the Moving Defendants except Bailey and Bajwa.

Therefore, the Court’s qualified immunity and Tort Claims Act analyses are limited

to those defendants only.

       “Qualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.”63 A clearly established right is



62
   Section 1983 or other civil claims relating to actions outside the courtroom that facilitated or
brought about a criminal prosecution may not be barred by absolute immunity. See, e.g., Malley
v. Briggs, 475 U.S. 335 (1986) (holding that complaining witnesses who bring about a prosecution
generally are not shielded by absolute immunity).
63
   Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per curium).
                                                26
one that sufficiently is clear that any reasonable official would understand that his

challenged conduct violated the right.64          “When properly applied, [qualified

immunity] protects all but the plainly incompetent or those who knowingly violate

the law.”65

       The Tort Claims Act “shields State employees . . . from civil liability if the

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 negligence.”66 Plaintiff must

establish at least one of these elements is missing in order to defeat a defense raised

under the Tort Claims Act.67

       Regarding qualified immunity, the amended complaint alleges violation of a

constitutional right—i.e., the right to fair trial—that clearly was established at the

time of the challenged conduct. It is reasonable to infer from the facts alleged that

Bailey and Bajwa knowingly violated the law, and they therefore are not entitled to

qualified immunity at this stage in the proceedings.

       As discussed in Section A., Bailey and Bajwa allegedly handled Mr. Dollard’s

evidence and engaged in various instances of misconduct. As alleged, Plaintiffs’


64
   Id.
65
   Id. (alteration in original).
66
   Wonnum v. Way, 2017 WL 3168968, at *2 (Del. Super. July 25, 2017).
67
   Id.
                                            27
claims are not barred by the Tort Claims Act because the allegations permit a

reasonable inference that those defendants (i) did not act in good faith, or (ii) were

grossly or wantonly negligent toward Mr. Dollard’s case. Those allegations are

sufficient, at this stage of the proceedings, to allow Plaintiffs’ claims to proceed.

Defendants are free to raise this defense on a more fully-developed factual record.

CONCLUSION
      For the foregoing reasons, Moving Defendant’s Motion to Dismiss is

GRANTED in part as to Count I, III, IV, and V and is GRANTED as to Count II.

IT IS SO ORDERED.




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