SUPER|OR COURT
oF THE

STATE OF DELAWARE

VWIAN L. Mb;l)lNlLLA LEoNoARD L. WlLL\Ar\/\s JusT\cE CENTER
JUDGE 500 NORTH KlNG STREET, sule 10400

WxLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

February 14, 2017

Robert E. Eaton Roopa Sabesan, Esquire
SBI # 002()2()59 Departrnent of Justice

J ames T. Vaughn Correctional Center Carvel State Building
1181 Paddock Road 820 North French Street
Srnyrna, DE 19977 Wilmington, DE 19801

Re: Robert E. Eaton v. Robert Coupe, et al.
Case No.: N15C-09-245 VLM

Dear Mr. Eaton and l\/Is. Sabesan:

This is the Court’s ruling on three motions filed in the above-captioned case.
The first is Plaintiff` Robert E. Eaton (“Plaintiff”)’s Motion to Re-Open Case, filed
on Gctober 17, 2016. The second is Plaintist Motion for Appointment of
Counsel, filed on November 7, 2016. The third and final motion is Def`endants,
Commissioner Robert Coupe, Deputy Warden Philip Parker, James Scarborough,
Ron Drake, and Steven Bilbroughl (“Defendants”)’s l\/lotion to Dismiss the
Complaint, filed on December 8, 2015.

For the reasons stated below, Plaintif`f’s Motion to Re-()pen Case is
GRANTED. Plaintist Motion for Appointment of Counsel is I)ENIED.
Defendant’s l\/lotion to Dismiss is GRANTED.

 

l Def`endant Bilbrough’s surname is spelled differently in the record. The Com`plaint spells his
name “Billsborough.” However, counsel for Defendant uses “Bilbrough.” The Court will use
the surname implemented by Defendants’ counsel in this Letter Opinion.

PRoCEDURAL AND FACTUAL BACKGRoUND

Plaintiff, an inmate at J ames T. Vaughn Correctional Center (“Center”), filed
a civil action in this Court on September 29, 2015.2 The Complaint alleges
Defendants, Department of Correction (“DOC”) officers and supervisors, retaliated
against Plaintiff When he reported What is alleged to be an “unconstitutional and
unhumane [sic]” practice at the Center: “making food trays out of left-over scraps
of previously served meals, and fooding [sic] it to inmates When there is not
enough trays sent to feed, instead of ordering from the l<itchen.”3 He asserts claims
arising under the Delavvare Whistleblowers’ Protection Act, 19 Del. C. §§ 1701-08,
and 42 U.S.C. § 1983. The § 1983 claims arise under the First and Fourteenth
Amendments: retaliatory firing under the former and procedural due process under
the latter. The claims are leveled at Defendants in both their individual and official
capacity as employees/officers of DOC.4

The Complaint alleges that Plaintiff Was removed from his employment in
the Center’s canteen after disclosing this allegedly unconstitutional practice in a
letter to Deputy Warden Parl<er.5 After his termination of employment, he
allegedly Wrote to “the other named Defendants . . . requesting an investigation
into the practice and reinstatement of his employment in light of [] Defendant
Bilbrough not complying With institutional due process procedures layed [sic] out
for the suspension or firing of any inmate from employment.”6 The Complaint
claims that this “policy”-presumably the alleged retaliatory firing of inmate-
employees Who report certain institutional practices~is “longstanding and
continuous . . .”

 

2 The Complaint Was filed conventionally on that date and docketed online on the following day.
See D.l. #57940502 [hereinaf`ter Complaint].

3 complaint ar 2.
4 la at 1-2.
5
Ia,’. at 2.
6 ld.

714 ara

The Complaint seeks monetary and injunctive relief for the “past and
continual violation of the First Amendment and employment protection under
Delaware’s Whistleblowers’ Protection Act, and lost wages/with interest.”8

Defendants filed a Motion to Dismiss the Complaint on the basis of a failure
to state a claim upon which relief can be granted on December 8, 2015. Plaintiff
responded on February 2, 2016. While a decision on the l\/[otion was pending, the
Prothonotary received a handwritten letter, dated April 5, 2016, stating: “l would
like to dismiss voluntarily the above-captioned civil action.”9 The letter is signed
by “Robert Eaton.” The docket was noted accordingly and the case was closed.

On August 22, 2016, Plaintiff sent a letter to the Prothonotary requesting a
status on the l\/[otion to Dismiss.lo The Prothonotary instructed Plaintiff that he
had dismissed his case and no decision was pending. Plaintiff responded, stating
that he did not file the purported notice of voluntary dismissal and “request[ed] a
full investigation and prosecution of the person(s) who . . . falsely mislead this
Court into dismissing this civil action.”]l The Prothonotary instructed Plaintiff to
file a motion should he wish to re-open his case, which he did on October 12,
2016.12 The Motion to Re-Open Case contains a notarized affidavit from Plaintiff
claiming the voluntary dismissal was “fraudulent” and again instructing the Court
to investigate the matter.

While awaiting a response from Defendants to the Motion to Re-Open Case,
Plaintiff filed a l\/Iotion for Appointment of Counsel in which he requests counsel
be appointed in this matter on several bases outlined more fully below.13

After Defendants’ response to the l\/Iotion to Re-Open Case, Plaintiff filed a
reply of sorts, claiming that the notice of voluntary dismissal was orchestrated by a

 

8 1a

9 D.l. #58880543 (dockei@d Apr. 18, 2016).
‘° D.l. #59577002 (dockered sep. 19, 2016).
“ D.l. #59702854 (dockered oct 14, 2016).
12 D.l. #59727373 (d@ckered oct 17, 2016).

‘3 D.l. #59901847(51€¢1 Nov. 7, 2016; docketed Dec. 2, 2016).
3

“jailhouse lawyer” that originally helped him prepare his Complaint.14 He also
claims that he did not receive notice of the dismissal until the Prothonotary
answered his letter seeking a status on the Motion to Dismiss.

Having considered the filings and record in this case, the Court will now
address the three pending l\/[otions. The Court will address, first, Plaintist
Motion to Re-Open Case. Then, the Court will decide Plaintiff s l\/Iotion for
Appointment of Counsel, concluding with Defendants’ l\/Iotion to Dismiss.

Q_I_S_QQ§M
I. Plaintiff’s Motion to Re-Open Case
A. Standard of Review

Delaware Superior Court Civil Rule 4l(a)(l) permits the plaintiff to
voluntarily dismiss the “action” in most civil cases by filing a notice of dismissal
“at any time before service by the adverse party of an answer or of a motion for
summary judgment.”15 To be effective, the notice must voluntarily dismiss all
pending claims against a particular party.16

B. Analysis

While it is clear that Plaintiff could have dismissed his case in the manner he
purportedly did in this case, there is a notable caveat: Plaintiff claims that he never
voluntarily dismissed the case and that any such filing was fraudulent

In response, Defendants argue that the writing style in the notice of
voluntary dismissal resembles Plaintiff` s handwriting in all other filings with this
Court. While conceding that they have not engaged a handwriting expert to
analyze the notice of dismissal, Defendants implore the Court to compare the
notice with the style seen in the other submissions

 

14 D.l. #59970836 (rtled Deo. 9, 2016; docketed Deo. 19, 2016).
15 DEL. SUPER. CT. CIv. R. 41(a)(1).

16 See AT&T Wireless Servs., ]nc. v. Fed. lns. Co., 2005 WL 2155695, at *2 (Del. Super. Aug.
18, 2005) (citing 8 JAMEs W. MooRE, et al., MooRE’s FEDERAL PRACTlCI-; § 41.21[1]).

4

The Court has at its disposition presumably multiple exemplars of Plaintiff`s
handwriting because all of his filings and correspondence with the Court is
handwritten From a review of the notice, the handwriting appears similar to
Plaintiff s rather distinctive calligraphy. However, there are noticeable differences
from the style of handwriting in the Complaint and notice when compared to the
letters from Plaintiff following dismissal. For example, the Complaint and notice
are signed “Robert Eaton.” The letters and motions from Plaintiff following the
dismissal are all signed either “Robert E. Eaton” or “Robert Ea’wam’ Eaton.”

That is to say that there is some doubt as to whether Plaintiff actually filed
the voluntarily dismissal Weighing against Defendants’ argument, moreover, is
Plaintiff"s rather diligent reaction to his discovery that his claim had been
dismissed This diligence manifests Plaintiff`s desire to litigate his claims against
Defendants. While the Court cannot conclude whether the notice was actually
filed by Plaintiff, the Court will exercise its discretion, in accordance with
Delaware’s policy of providing litigants their “day in court,”17 to grant Plaintiffs
l\/lotion to Re-Open Case.

II. Plaintiff’s Motion for Appointment of Counsel
A. Standard of RevieW

The Sixth Amendment of the United States Constitution, as incorporated
under the Fourteenth Amendrnent, requires the States provide indigent criminal
defendants with assistance of counsel at “every step in the proceedings against
him.”]8 Article I, Section 7 of the Delaware Constitution further provides
assistance of counsel for indigent criminal defendants during all critical stages of
the proceedings against him.19

 

17 DEL. CGNST. art. l, § 9 (“All courts shall be open; and every person for an injury done him or
her in his reputation, person, movable or immovable possessions, shall have remedy by the due
course of law, and justice administered according to the very right of the cause and the law of the
land, without sale, denial, or unreasonable delay or expense.”).

18 Gl'det)n v. Waz'nwrighl, 372 U.S. 335, 345 (1963) (quoting Powell v. Alabama, 287 U.S. 45,
68~69 (1932)). See U.S. CONT. amend. Vl.

‘9 Det. coNst. ott 1, § 7; Potter v_ stdte, 547 A.zd 595, 600 (Dei. 1988> (oitiog theon, 372
U.S. at 342-45). See also Brycm v. Sl'ale, 571 A.2d 170, 175 (Del. 1990).

The right to appointed counsel, if any, in a civil case does not arise under the
Sixth Amendment.20 Instead, any such right must arise under the Due Process
Clause of the Fourteenth Amendment.21 “When an indigent civil litigant could not
possibly be deprived of his personal liberty as a direct result of the litigation, the
Constitution does not require in the absence of special and compelling
circumstances the appointment of counsel ”22 A special or compelling
circumstance exists where the plaintiffs interest in appointed counsel outweighs
the other Mathews v. Ela’ridge procedural due process factors: the government’ s
interest and the risk that the absence of counsel will result in erroneous results.23

B. Analysis

Plaintiff’ s proffer for appointment of counsel rests on the following bases:
(1) he is indigent; (2) he is “learning impaired;” (3) “sabotage has been injected
into the plaintiffs complaint thus causing more difficult and complex problems for
the case proceedings;” (4) the supposed existence of a “conflict of interest”
between Defendants’ counsel and Plaintiff`s demands for an investigation into
whomever fabricated the notice of dismissal; (5) an allegation that Defendants
continue to retaliate against him (noting that “new evidence will be introduced”);
and (6) “hostile witnesses . . . need to be brought before the Court to testify of their
involvement.”

This Court has addressed nearly identical motions for appointment of
counsel in civil cases where the requesting litigants are indigent inmates For
example, in Vz'ck v. Department of Correction, the plaintiff-inmate sued D()C
employees under the First, Eighth, and Fourteenth Amendments alleging the
employees forcibly removed his ring and fez, which were articles cf religious
significance to the inmate 24 The inmate alleged that: (l) he was indigent; (2) the
case was complex; (3) he lacked the requisite legal knowledge to properly

 

20 Jenkmt v. Dover Poztce Comm ’r, 2002 wL 663912, at *2 (Dei. sopet. Apt. 5, 2002).
2‘ 1a see U.s. const amend xIv, § 1.

22 Jenkz`ns, 2002 WL 663912, at *2 (quoting William L. Dick, Jr., Note, The Rz'ght 10 Appoz`ntea’
Cozmsel for ]ndigenl Cz`vil Liligams: The Demands ofDue Process, 30 WM. & l\/IARY L. REV.
627, 628 (1989)).

23 see id towing Mdthews v. Eldrzdge, 424 U.s. 319 (1976)).

24 1986 WL 8003, at *1 (Dei. supet. Apt. 14, 1986).
o

represent himself; and (4) he had very limited access to the prison library.25 The
Court framed the issue as whether the inmate had “meaningful access” to the
courts.26 The Court held that the inmate’s filings with the Court belied his claims
that the case was complex or that he had no meaningful access to the prison library
to prosecute his claim.27

ln Jenkins v. Dover Police Commissioner the Court denied the indigent
inmate’s request for appointment of counsel applying procedural due process
precedent28 The Court applied a presumption “against requiring appointed
counsel when [the] unsuccessful litigant cannot be deprived of his personal
liberty,” derived from the U.S. Supreme Court’s opinion in Lassz`ter v. Department
of Socz`al Services.29 The Jenkz`ns Court held that this presumption, coupled with
the government’s interest “in maintaining order and discipline in its penal
institutions” outweighed the litigant’s interest in having appointed counsel where
the case was not complex and the litigant had access to the prison library.30

Applying Lassz`ter, Vick, and Jenkz`ns to the present case, the outcome is the
same: Plaintiff has failed to show why this “presumption” against appointment of
counsel in a civil case is overcome. As in Vz'ck and Jenkz`ns, the Court finds that all
six bases alleged in the Motion are unpersuasive First, Plaintiff s indigence, by
itself, is not enough to state a right to appointed counsel. Second, this case is no
more complex than the claims in Vz'ck and Jenkz'ns. Third, his ability to cite cases
relevant to his contentions belies his asserted lack of legal knowledge or mental
capacity to prosecute his case. Finally, his remaining contention_that there is a
clandestine operation to subvert his civil claim-~is unsupported by any evidence.

 

25 See id.

26 ld tottng Botmds v. smith, 430 U.s. 817 (1977); Woz]jfv. MoDonnezl, 418 U.s. 539 (1974);
Boulware v. Baltaglia, 344 F.Supp. 889 (D. Del. 1972); Johnson v. Sl‘ale, 442 A.2d 1362 (Del.
1982); Hall v. State, 408 A.2d 287 (Del. 1979)).

27 See id. at *3.

28 2002 WL 663912 (Del. Super. Apr. 5, 2002).

29 Id. at *2-3 (quoting William L. Dick, Jr., Note, The Right 10 Appol`nted Counselfor lndigenl
Cz'vz`l Liligants: T he Demands ofDue Process, 30 WM. & MARY L. REV. 627, 628 (1989)) (citing
Lassl`fer v. Dep ’l QfSoc. Servs. ofDurham Cnly., N.C., 452 U.S. 18 (1981)).

301d

Therefore, Plaintiffs Motion for Appointment of Counsel is DENIED.
III. Defendants’ Motion to Dismiss
A. Standard of Review

On a motion to dismiss for failure to state a claim under Rule l2(b)(6), all
well-pleaded allegations in the complaint must be accepted as true.31 Even vague
allegations are considered well-pleaded if they give the opposing party notice of a
claim.32 The Court must draw all reasonable inferences in favor of the non-moving
party; however, it will not “accept conclusory allegations unsupported by specific
facts,” nor will it “draw unreasonable inferences in favor of the non-moving
party.”33 Dismissal of a complaint under Rule l2(b)(6) must be denied if the non-
moving party could recover under “any reasonably conceivable set of
circumstances susceptible of proof under the complaint.”`?’4

B. Analysis

Plaintiffs claims mix two distinct grounds for relief. Plaintiff s first claim
arises under the Delaware Whistleblowers’ Protection Act (“state law claim”). The
second claim is a civil rights claim under 42 U.S.C. § 1983, alleging both a First
Amendment retaliatory firing claim and a Fourteenth Amendment due process
claim for the deprivation of a protected liberty or property interest (“federal
claims”). This Court will address both claims separately.

i. Plaintiff"s State Law Claim

The Delaware Whistleblowers’ Protection Act (“Act”) protects “employees
who report violations of law for the benefit of the public.”33 Section 1703 of the

 

2‘ spence v. Fan/t, 396 A.2d 967, 968 (Del. 1978). see also DEL. soPER. Ct. ctv. R. 12(b)(6).

32 In re Gen. Mot‘ors (Hughes) S’hola’er Ll'tz`g., 897 A.2d 162, 168 (Del. 2006) (quoting Savor,
[nc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).

23 lat; Prtee v. E,I. DaPaat de Nemaats & Ca., 26 A.3d 162, 166 (Del. 2011) (iotemai citation
omitted).

24 speaee_, 396 A.2d at 968 tottng Kleta v_ sunbeam Cot;a., 94 A.2d 385 (Dei. 1952)).

25 smith tt Delawate state Uatv., 47 A.3d 472, 476 (Dei. 2012).
8

Act states: “An employer shall not discharge, threaten, or otherwise discriminate
against an employee regarding the employee's compensation, terms, conditions,
location, or privileges of employment . . .” The term “employee” is defined as
“a person employed full or part-time by any employer. . . .”37 An “employer” is
defined broadly and includes situations where “services are performed for wages
under any contract of hire, written or oral, express or implied.”}’8 The sine qua non
of the Act, therefore, is the existence of an employer-employee relationship prior
to the alleged retaliatory action.39

Plaintiffs state law claim fails because he is not an employee of DOC. In a
related context, the Supreme Court held in Walls v. Department ofCorrection that
inmates are not “employees” within the meaning of Delaware’s minimum wage
statute.40 ln reaching this holding, the Walls Court quoted a Fourth Circuit opinion
explaining the rationale behind the absence of the employer-employee relationship
in the penal context:

lnmates may voluntarily apply for [prison industries]
positions, but they certainly are not free to walk off the
job site and look for other work. When a shift ends,
inmates do not leave [prison] supervision, but rather
proceed to the next part of their regimented day. [The
prison industries] and [the prisoner] do not enjoy the
employer-employee relationship contemplated in the
Federal Labor Standards Act [“FLSA”], but instead have
a custodial relationship to which the [FLSA's] mandates
do not apply.41

 

26 19 Del. C. § 1703(a) (2013 & sapp. 2016) (emphasis added).

22§ 1702(1).

288 1702(2).

39 See, e.g., Curlez‘t v. Maa’ison ]ndus. Servs. Team, le., 863 F.Supp.2d 357 (D. Del. 2012)

(discussing legislative history of Act and holding that Act does not apply to employees employed
outside Delaware).

40 663 A.2d 488, 1995 WL 420801, at *2 (Dei. 1995) (TABLE).

41 1a (quoting Hat»ket~ v. state Uae laaaa., 990 F.2d 131, 133 (4th Cit. 1993)).
9

Since inmates lack the voluntariness inherent in the employer-employee

relationship, the Walls Court held that inmates were not able to claim minimum

wage from the DOC.42 The Walls holding is codified in the minimum wage
43

statute.

Plaintiff s state law claim fails for another reason: an employee under the
Act cannot sue individuals occupying merely a supervisory role.44 lnstead, the Act
permits the employee to sue the “employer,” z`.e., that entity who supplies wages
for services performed, in an action under § 1703. Defendants are alleged to have
acted in their individual and official capacities, but the action is not against the
putative “employer,” as required under the Act. Therefore, Plaintiffs state law
claim fails to meet Delaware’s “reasonable conceivability” standard and must be
dismissed for failure to state a claim upon which relief can be granted.

ii. Plaintiff"s Federal Claims

Plaintiff alleges two federal claims: one for a violation of his First
Amendment rights, and another for a violation of due process under the Fourteenth
Amendment Plaintiff alleges his federal claims through the federal civil rights
statute, 42 U.S.C. § 1983. Section 1983 reads in part:

Every person who . . . 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

 

42 see ta. see also ta'. at *1 (quoting Vaaaktke v. Petets, 974 F.2d 806, 809 (7th Cit. 1992)) (“Pat
simply, the [prison's] ‘control’ over [the prisoner] does not stem from any remunerative
relationship or bargained-for exchange of labor for consideration, but from incarceration itself.
The control that the [prison] exercises over a prisoner is nearly total, and control over his work is
merely incidental to that general control.”).

43 19 Del. C. § 901(3)(h) (2013 & Supp. 2016) (excluding “any inmate in the custody of DOC”).
Cf ll Del. C. § 6532 (2015 & Supp. 2016) (“The [DOC] may establish compulsory programs of
employment, work experience and training for all physically able inmates.”).

44 Meltzer v. Cily of Wilmz`nglon, 2008 WL 4899230, at *2 (Del. Super. Aug. 6, 2008); Tomez' v.
Sharp, 902 A.2d 757, 767 (Del. Super. 2006) affd, 918 A.2d 1171, 2007 WL 249176 (Del. 2007)
(TABLE).

10

law, suit in equity, or other proper proceeding for redress.
45

Since Plaintiff"s federal claims derive from two distinct constitutional fonts, the
Court will address each claim separately.46

(a) First Amendment Retaliation Claim

The Petition Clause and Free Speech Clause of the First Amendment
“protect ‘personal expression --both expression generally and expression directed
towards the government for the specific purpose of asking it to right a wrong ” 47 ln
the prison context, “[a] prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action taken by prison officials sufficient to deter
a person of ordinary firmness from exercising his constitutional rights, and (3) a
causal link between the exercise of his constitutional rights and the adverse action
taken against him.”48 Though certain constitutional protections dissipate at the
jailhouse doors, it is well established that inmates shed only those First
Amendment rights that are incompatible with the “legitimate penological
objectives of the corrections system.”49 For instance, an inmate retains his rights
under the Petition Clause where he reports religious harassment in the prison to
prison officials50

 

45 42 U.s.c. § 1983 (2016) (emphaste added).

46 Plaintiffs claims against Defendants arising out of their official capacity are barred under the
doctrine of sovereign immunity and the Eleventh Amendment See U.S. CONT. amend XI. See
also Wz`ll v. Michigan Dep’t ofState Polz`ce, 491 U.S. 58 (1989); Hall v. McGuigan, 743 A.2d
1197, 1206 (Del. Super. 1999). The State is not a “person” within the meaning of § 1983. See
Will, 491 U.S. at 71; Ringer v. Smith, 1994 WL 750319, at *2 (Del. Super. Nov. 23, 1994), aff"o’,
655 A.2d 308, 1995 WL 67093 (Del. 1995) (TABLE). An action against an individual in that
individual’s official capacity is treated as an action against the “government entity employing the
official.” Hall, 743 A.2d at 1206. Therefore, in so far as Plaintiffs claims are against
Defendants in their official capacity, those claims are barred by sovereign immunity.

47 Mack v. Wam’en Lorez‘to FCI, 839 F.3d 286, 297-98 (3d Cir. 2016) (citing Borough ofDuryea,
Pa. v. Guarm`eri, 564 U.S. 379, 388 (2011)).

48 la’. at 297 (quoting Ml'fchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).
29 1a at 298 (quoting Pezl v. Pt»aeaatet», 417 U.s. 817, 822 (1974)).

50 see id at 299.
1 1

Plaintiff has shown that he engaged in constitutionally protected activity.
He alleges that he wrote to Defendants revealing the Center’s practice of reusing
old food scraps to feed inmates When an inmate files a grievance with prison
officials, whether oral or written, he engages in constitutionally protected speech.5 l
Plaintiff s letter reporting what he alleged to be unconstitutional conduct of the
Center’s officials is protected free speech under the Petition Clause.

The second element Plaintiff must show is “an adverse action taken by
prison officials sufficient to deter a person of ordinary firmness from exercising his
constitutional rights.” “An adverse consequence ‘need not be great in order to be
actionable[;]’ rather, it need only be ‘rnore than de minimis.”’52 Where an inmate
is subject to a range of sanctions, such as changes in housing, confinement, or
classification, this de minimis standard is met.53 The issue in this l\/lotion is
whether the removal of Plaintiff from a discretionary employment position is akin
to this “range of sanctions” Since the resolution of this issue is unclear,
Defendants fail to meet their burden of proving that the second element is not
susceptible to any reasonably conceivable set of circumstances

The third element is where Plaintiff’s prima facie showing fails: he has not
demonstrated “a causal link between the exercise of his constitutional rights and
the adverse action taken against him.” The only allegations of misconduct are
Plaintiff s removal from a discretionary work position after writing a letter to
Defendant Parker. The only date provided in the Complaint is July 5, 2014. The
remainder of the Complaint asserts conclusory allegations without sufficient facts
to suggest a causal connection between his grievance and his termination.

lnstead, Plaintiff alleges allegations sounding in respondeat superior
liability. This is inapposite as Monell v. Department of Soeial Services of New
York and its progeny make clear that § 1983 may not be premised on respondeat
superior liability for alleged violations of the Constitution.54 Rather, Plaintiff must

 

51 See id. See also Watson v. Rozum, 834 F.3d 417, 422-23 (3d Cir. 2016) (inmate grievance
against corrections officers who allegedly retaliated against him for filing grievance engaged in
constitutionally protected free speech).

52 Waison, 834 F.3d at 423 (quoting McKee v. Hari, 436 F.3d 165, 170 (3d Cir. 2006)).
55 See id.

5 4 436 U.S. 658, 692 (1978) (“a municipality cannot be held liable under § 1983 on a respondeat
superior theory”).

12

plead facts sufficient to show a reasonably conceivable set of circumstances that
each “named defendant ‘played an affirmative role in the deprivation of plaintiffs
rights’ through personal involvement or actual knowledge.”5 5

There are five named Defendants in this case. Two are officials in
supervisory capacities at the Center: Commissioner Coupe and Deputy Warden
Parker. The other three are DOC officers at the Center.

This Court finds that the Complaint wholly fails to state facts sufficient for
the Court to infer that each Defendant acted “affirmatively” to violate Plaintiff’ s
First Amendment rights The only allegations of any conduct whatsoever are that
Defendants received letters from Plaintiff about his reporting of the meal issue and
he was--at some unknown point in time_terminated from employment at the
Canteen. This falls far below even the minimal level of proof needed under
Delaware’s “reasonable conceivability” standard on a motion to dismiss
Therefore, Plaintiffs First Amendment claim must be dismissed pursuant to Rule
l2(b)(6).

(b) Proeedural Due Process Claim

The Due Process Clause performs a dual function. Procedurally, due
process guarantees a fair procedure “in connection with any deprivation of life,
liberty, or property by the State.”56 Substantively, due process “protects individual
liberty against ‘certain government actions regardless of the fairness of the
procedures used to implement them.”’57 Plaintiff appears to allege a procedural
due process claim for his termination from employment at the Center’s canteen.

“For plaintiff to state a cognizable claim that he was deprived of . . .
employment opportunities without due process of law, plaintiff must have a
property or liberty interest.”58 However, under Third Circuit and Delaware
precedent, inmates do not have an entitlement to a specific job, “or even to any

 

55 Ellllot v. Danbetg, 2013 WL 6407676, at *2 (Del. supet. Deo. 6, 2013) (intetnal footnote
omitted) (quoting Perlnsylvanl`a v. Porier, 659 F.2d 306, 336 (3d Cir. 1981); Estate of Willl'ams
v. Corr. Med. Servs., Inc., 2010 WL 2991589, at *3 (Del. Super. July 23, 2010)).

56 Collins v. Cily ofHarker Heights, Tex., 503 U.S. 115, 125 (1992).
57 1a (quoting pamela v_ thltama, 474 U.s. 327, 331 (1986)).

55 Abdill-Akbar v. Dep’t of Corr., 910 F.Supp. 986, 1002 (D. Del. 1995) (citing James v.
Quz`nlan, 866 F.2d 627, 629 (3d Cir. 1989)).

13

job.”59 Therefore, Plaintiff fails to state a constitutionally protected interest in his
continued employment in the Center’s canteen. This failure to identify a
constitutional interest means that there are no reasonably conceivable set of
circumstances that would permit Plaintiff to recover under the Due Process Clause
for his removal from his employment at the Center. Hence, his due process claim
must be dismissed for failure to state a claim upon which relief can be granted.

CoNCLUsIoN

For the foregoing reasons, Plaintiffs l\/lotion to Re-Open the Case is
GRANTED. Plaintiffs l\/lotion for Appointment of Counsel is DENIED.
Defendants’ l\/lotion to Dismiss is GRANTED.

IT IS SO ORDERED.

,.~'/r
Vivian L. Medinilla /
Judge

 

oc: Prothonotary

 

52 Kaatamanto v. Kt'ng, 651 F.snpp.2d 313, 330 (E.D. Pa. 2009) (quoting Qta‘nlan, 866 F.2d at
630). See also Abdill-Akbar v. Dep’l of Correcll`on, 910 F.Supp. 986, 1002 (D. Del. 1995)
(holding plaintiff does not have either property or liberty interest in prison employment as it is
discretionary opportunity); Dullon v. Risley, 659 A.2d 227, 1994 WL 658488, at *1 (Del. 1994)
(TABLE).

14

