                            SUPERIOR COURT
                                     OF THE

                        STATE OF DELAWARE
Jeffrey J Clark                                              Kent County Courthouse
Judge                                                           38 The Green
                                                              Dover, DE 19901
                                                                302-735-2111
                                March 22, 2017


Brandon Eskridge                                   Joseph C. Handlon, DAG
James T. Vaughn Correctional Center                Department of Justice
1181 Paddock Road                                  820 North French Street
Smryna, DE 19977                                   Wilmington, DE 19801

       RE: Eskridge v. Warden Jim Hutchins, et al.
           C.A. No. K16C-10-009 JJC

                          Submitted: February 17, 2017
                            Decided: March 22, 2017

Dear Mr. Eskridge and Mr. Handlon:
       This suit involves alleged injuries caused by a carbon monoxide leak at the
Department of Correction’s Morris Community Corrections Center (hereinafter
“MCCC”). This is my letter decision regarding the Defendants’ motion to dismiss.
The decision on this motion turns on pleading requirements in state courts for
federal claims brought pursuant to 42 USC § 1983 (hereinafter “Section 1983
claims”), and sovereign immunity.
       Here, Plaintiff Brandon Eskridge’s (hereinafter “Mr. Eskridge’s”) claims
include conclusory statements that sufficiently allege the elements of a Section
1983 claim against two of the six Department of Correction defendants. The Court
finds, however, that Section 1983 claims brought in Delaware State courts are
properly evaluated pursuant to the plausibility standard, as in the federal courts.

                                        1
Such claims require allegations of sufficient facts to establish the plausibility of a
plaintiff’s claims.   For the reasons set forth herein, the Complaint does not
plausibly allege Section 1983 claims against any of the named defendants.
Accordingly, they are dismissed pursuant to Superior Court Civil Rule 12(b)(6).
      Furthermore, Mr. Eskridge’s complaint can be fairly read as including
personal injury claims against Department of Correction officials and employees.
For the reasons discussed below, any such state law claims are barred by sovereign
immunity. Accordingly, Mr. Eskridge’s state law personal injury claims are also
dismissed for that reason.


                                    Background
      Here, Mr. Eskridge sues six Department of Correction employees
(“Defendants”) ranging in rank from the Warden of MCCC through two sergeants
directly responsible for his supervision on the day in question. The facts cited
herein are those alleged by Mr. Eskridge in his Complaint and are taken as true for
purposes of this motion.
      On June 21, 2016, Mr. Eskridge and sixty-seven other inmates suffered
personal injuries caused by carbon monoxide poisoning while inmates at MCCC.
Without specifying the nature of his claims other than they are (1) “personal injury
claims” that are also brought under (2) “Unsafe Hazardous Substance Conditions
(MTOX)”, he sues two correctional officers for not taking action when he and
fellow inmates became sick.       He also names four Department of Correction
supervisory level employees for being reckless and callously indifferent, and for
not properly addressing a grievance regarding the incident.
      Although Mr. Eskridge does not specifically cite 42 U.S.C. § 1983 in his
suit, he alleges that Defendants deprived him of his constitutional rights through
their callous indifference and recklessness. In the context of Section 1983 claims,
the United States Supreme Court has recognized that “deliberate indifference to
                                          2
serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain . . . proscribed by the Eighth Amendment” to the United States
Constitution. 1 Furthermore, where state officials are sued pursuant to Section
1983, the presumption is that the officials are sued in their individual capacities. 2
Here, he does not allege the capacities of the Defendants, which in turn creates a
threshold issue in evaluating available defenses. In applying the most deferential
reading to Mr. Eskridge’s Complaint, the Court will evaluate his Section 1983
claims as though they are raised against the Defendants in their individual
capacities.3
         Defendants move for dismissal pursuant to Superior Court Civil Rule
12(b)(6) alleging that they are immune from state law claims pursuant to the State
Tort Claims Act,4 and are otherwise immune from this suit. The Defendants also
allege that except for the two sergeants who were on the floor at the time of the
alleged injury, the complaint alleges no personal involvement on their part that
would engender liability under Section 1983. Furthermore, the Defendants argue
that, notwithstanding Mr. Eskridge’s allegations of the two sergeants’ direct
involvement, he does not allege that they had knowledge of a serious risk of harm
and were indifferent to it or unreasonably responded to it. 5 In response to the
motion to dismiss, Mr. Eskridge filed a letter with the Court that did not address
the substantive arguments raised by the Defendants. Rather, he requests assistance
with discovery.


1
  Erickson v. Pardus, 551 U.S. 89, 90 (2007). The elements of §1983 claims include that (1) the conduct complained
of must be committed by a person acting under color of state law; and (2) the conduct must deprive a person of
rights, privileges, or immunities secured by the Constitution or laws of the United States. 42 USC § 1983.
2
  Stephen H. Steinglass, Section 1983 Litigation in State Courts § 12:5 (2016)(citations omitted).
3
  If these Sections 1983 claim were asserted against the Defendants in their official capacities as state officials, the
claims would be barred. See Ringer v. Smith 1994 WL 750319, at *2 (Del. Super. Ct. Nov. 23, 1994) aff’d Del.
Supr., 655 A.2d 308 (1995)(holding that state officials cannot be sued in their official capacities under Section 1983
because the United States Supreme Court has held that neither states or state officials sued in their official capacities
qualify as persons under Section 1983).
4
  10 Del. C. § 4001
5
  See Farmer v. Brennan, 511 U.S. 825, 834 & 845 (1990)(requiring in the Eighth Amendment context, a showing
(1) that the prison official showed deliberate indifference (2) to a substantial risk of serious harm).
                                                           3
    Delaware’s Notice Pleading Standards and Pleading Standards for Section
                                  1983 Claims

When deciding a motion to dismiss for failure to state a claim, the Court must
accept as true all well-pleaded allegations in the complaint. 6 With few exceptions,
the test for sufficiency is a broad one: the complaint will survive the motion to
dismiss so long as “a plaintiff may recover under any reasonably conceivable set of
circumstances susceptible of proof under the complaint.”7
        The standard for sufficiency in pleading Section 1983 claims, however, has
been far from uniform. First, this seems to be in part because many federal courts
have required plaintiffs, notwithstanding notice pleading requirements in the
Federal Rules, to set forth facts establishing the plausibility of their claims (rather
than mere conceivability). Arguments against such a heightened pleading standard
include that neither the Federal Rules of Civil Procedure nor Section 1983 itself
require heightened pleading.
        After considering the matter, 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.
        The United States Supreme Court examined Section 1983 pleading
requirements in the context of a motion to dismiss in Ashcroft v. Iqbal.8 There, the
United States Supreme Court held that
        [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

6
   Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
7
   Id.
8
  556 U.S. 662 (2009).
                                                    4
         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. 9

         Even though Section 1983 claims are federal causes of action, it is not a fait
accompli that state courts hearing these federal claims are bound to apply federal
pleading requirements.10 Delaware Superior Court Civil Rule 8(a) and 8(e) require
only the notice pleading standard described above. In addition, Section 1983
claims are not included within the heightened pleading standard of Superior Court
Civil Rule 9.
         In this instance, the Court finds it appropriate to afford considerable
deference to the United States Supreme Court’s procedural requirements regarding
this federal law cause of action. In large part, it is appropriate when considering
that the Federal Rules of Civil Procedure do not vary from the Superior Court Civil
Rule pleading requirements in relevant part.
         Furthermore, while other Superior Court Rule 12(b)(6) decisions to date
have not articulated their decisions in terms of the plausibility standard, it is clear
that most are in fact applying this heightened pleading requirement in Section 1983
actions. Defendants cite one such decision in Carta v. Danburg.11 There, the
complaint alleged that two higher level Correction officials had actual knowledge
that a culture of violence existed at one Correction facility where correctional
officers allegedly abused inmates.12                          The allegations included that these
supervisory officials were liable for the abuse of an inmate. In furtherance of his


9
  Id. at 678 (citations omitted).
10
   See Steven H. Steinglass, Section 1983 Litigation in State Courts § 12.7 (2016) (discussing how some State
courts mirror the Federal Pleading standards for Section 1983 actions, but the absence of a requirement to do so).
11
   2012 WL 1537167 (Del. Super. Ct. Apr. 30, 2012).
12
   Id. at *2
                                                          5
complaint, the plaintiff alleged three specific prior incidents of abuse at that facility
that were known to the officials, but the officials nevertheless disregarded those
conditions with deliberate indifference. 13 There, the Superior Court examined the
facts, accepted them as true, but determined that
        the existence of a few cases of [prior] alleged inmate abuse over the
        period of time involved here, accepted as true, is, without more,
        insufficient to plead a claim against the defendants upon which relief
        is granted under [Section 1983]. 14

        Likewise, in Elliott v. Danberg, the Superior Court examined a Section 1983
claim where supervisory level employees were alleged to have been reckless and
wanton.15 Although including barer facts than those alleged in the Carta case, the
claims against the supervisory level employees set forth the elements of a claim
and included a claim of wantonness and recklessness,16 which cannot be said to
diverge from the subjective standard of deliberate indifference. In other words, the
plaintiff made a conclusory allegation including the elements of a Section 1983
claim as to the supervisory level employees. Nevertheless, because specific facts
were not alleged supporting the claim against the supervisory level employees, the
Superior Court dismissed the claim.
        Most recently, in Eaton v. Coupe, the Superior Court applied a heightened
pleadings standard in the Section 1983 context. 17 There, the Court, would not
“accept conclusory allegations unsupported by specific facts,” nor would it “draw
unreasonable inferences in favor of the nonmoving party.18 The allegations in that
Section 1983 claim included, inter alia, that an inmate was subject to retaliation for
being removed from employment after acting as a whistleblower against the
13
   Id.
14
   Id. at * 3. Of note, the Superior Court in this decision described its review as being under the conceivability
standard. Id. at *1. However, in reviewing the facts alleged and finding them sufficient, the Court in that case was
in fact applying the plausibility standard.
15
   2013 WL 6407676, at * 2 (Del. Super. Ct. Dec. 6, 2013).
16
   Id.
17
   2017 WL 626614 (Del. Super Ct. Feb. 14, 2017).
18
   Id. at *4 (citation omitted).
                                                         6
Deputy Warden, and also that the Deputy Warden had taken similar previous
action against others. 19 In a granular review of the facts alleged in the complaint,
the Court held that the complaint “wholly fails to state facts sufficient for the Court
to infer that each Defendant acted ‘affirmatively” to violate Plaintiff’s”
constitutional rights. Accordingly, the Court dismissed that complaint pursuant to
Rule 12(b)(6). On balance, Delaware Superior Courts have applied, without the
nomenclature, the plausibility standard adopted by the federal courts when
evaluating Section 1983 pleading. 20


                                           Section 1983 Claims
        Mr. Eskridge’s claims against the four Defendants who are identified as
either supervisory level employees, or in one case, the Lieutenant responsible for
denying Mr. Eskridge’s grievance, are appropriately dismissed. Mr. Eskridge does
not state a claim upon which relief can be granted against those Defendants. First,
in a Section 1983 action, state actors cannot be held vicariously liable pursuant to
the principle of respondeat superior.21 Furthermore, Mr. Eskridge alleges no facts
permitting any inference that these supervisory employees (1) knew of the actions
generating his complaint; (2) had personal involvement in the matter; or (3)
established or executed polices resulting in his exposure to carbon monoxide.
Without allegations of such knowledge or actions, there is not a sufficient
allegation that they had the subjective motivation or involvement necessary to have
acted with the deliberate indifference necessary for liability under Section 1983.22

19
   Id. at *1.
20
    But see Smith v. First Correctional Medical, LLC, 2005 WL 1953118, at *3 (Del. Super Ct. July 14, 2005)
(denying a motion to dismiss pursuant to Rule 12(b)(6) by referring to conceivability requirements, but analyzing
the facts that a medical provider had an improper profit motive to improperly treat serious medical conditions, which
supported the inference that a defendant acted with deliberate indifference in not addressing serious medical needs
in violation of the Eight Amendment).
21
   Hall v. McGuigan, 743 A.2d 1197, 1205 (Del. Super. 1999).
22
   See 15 Am.Jur.2d §§ 293 & 294, 329-30 (2011)(recognizing that “’deliberate indifference is a stringent standard
of fault under § 1983” and that an “individual defendant in a § 1983 action can be held liable only upon a showing
that he or she was personally responsible, or personally involved in the deprivation of rights which is the basis for
the suit”).
                                                         7
      As in Elliott v. Danberg, Mr. Eskridge sues these four supervisory level
employees, and cursorily concludes that they acted with “callous indifference.”
For purposes of this analysis, the Court considers the alleged “callous indifference”
to be the same as “deliberate indifference.” No facts are cited in the complaint,
however, that can be woven together to provide any plausible inference that these
four employees had any personal involvement or any knowledge of the carbon
monoxide issue prior to the incident. Pleading that these four individuals were
callously indifferent to the deprivation of Mr. Eskridge’s rights, and that this
caused him the loss of these rights may survive notice pleadings standards. It does
not, however, meet plausibility standards.
      Mr. Eskridge claims against Sergeants Russell and Stanley, however, are a
closer call.   Namely, he alleges they were deliberately indifferent to his
constitutional rights by ignoring Mr. Eskridge’s complaints that they were being
sickened by what later was determined to be carbon monoxide. Evaluating the
facts, as alleged, however, leaves only an implausible inference that the two
officers in the facility were deliberately indifferent. Namely, as alleged, they in
fact disbelieved that the inmates were sick. They suspected that they were using
illegal substances. As further alleged, as soon as the officers began feeling sick,
and appreciated the risks involved, emergency personnel were immediately called.
The most striking fact alleged in the Complaint that makes Mr. Eskridge’s claim
not plausible is that these two Defendants were in the same facility, subjected to
the same risks and exposure as he and the other inmates. Because subjective
disregard of serious risk is necessary for such a claim and the facts alleged cannot
be plausibly read to state a claim, claims against these Defendants must also be
dismissed pursuant to Superior Court Rule 12(b)(6).




                                          8
       Mr. Eskridge’s State Law Claims are Barred by Sovereign Immunity
         Here, Mr. Eskridge alleges personal injury including nerve damage, blurred
vision, and muscle spasms caused by the callous indifference of the Defendants.
He does not specify whether he sues the Defendants in their official or personal
capacities. However, he identifies them all by rank in the caption, and further as
employees of the State in the body of the Complaint. In this regard, Mr. Eskridge
claims that MCCC staff did not provide him timely medical care or remove him
from the facility despite a carbon monoxide leak.
         Here, his State law personal injury claim against all Defendants must also be
dismissed. Specifically, they are barred pursuant to sovereign immunity and would
further be barred by the State Tort Claims Act. 23
         The Delaware Constitution, in Article I, section 9, provides sovereign
immunity to the State, which is “an absolute bar to all suits against the State unless
by legislative act the General Assembly has waived the immunity.” 24 In this case,
all allegations in the Complaint involve claims that the Defendants’ acts and
omissions were directly related to their duties as State employees. Accordingly,
unless waived, sovereign immunity bars Mr. Eskridge’s State law personal injury
claims against them.25
         In order for a plaintiff to prevail in a suit against the State, a plaintiff must
show that: (1) the State has waived the defense of sovereign immunity for each
claim, and (2) the State Tort Claims Act does not separately bar the action. 26 In
this regard, there are two ways by which the State, through the General Assembly,


23
   10 Del. C. § 4001. The Delaware Supreme Court has held that “[g]rossly negligent acts per se and the State Tort
Claims Act come into play only after an express intent to waive sovereign immunity has been identified.” State v.
Shepphard, 864 A.2d 929, 2004 WL 2850060, at *1 (Del. 2004)(Table)(emphasis added).
24
   Doe v. Cates, 499 A.2d 1175, 1176 (Del. 1985).
25
   See Hafer v. Melo, 502 U.S. 21, 24–25 (1991) (recognizing in terms of Federal sovereign immunity that “[s]uits
against state officials in their official capacity . . . should be treated as against the State”); see also 63C Am.Jur.2d
Public Officers and Employees § 303 (2017) (recognizing that “[w]here the charged act arose out of the state
employee’s breach of a duty that is imposed on him or her solely by virtue of state employment, sovereign immunity
bars maintenance of the action”)
26
   Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004).
                                                           9
may waive immunity: either by procuring insurance coverage under 18 Del. C. §
6511 for each claim, or by statute which waives immunity through express
language.27
        Here, Mr. Eskridge fails to allege any waiver of immunity enacted by the
General Assembly or procurement of insurance coverage that would be necessary
to subject these state officials to such claims. His unspecified state law claims are
therefore barred because he does not allege “a clear and specific waiver of
sovereign immunity by the State.” 28
        Furthermore, independently, his claims would also be barred by the State
Tort Claims Act in this case even if there were a valid waiver. The Act provides
that a plaintiff’s claim is barred unless he or she can demonstrate the absence of
one of the following three elements: (1) the action arose out of or in connection
with an official duty of the defendant; (2) the defendant’s action or omission was
done in good faith, or (3) the act or omission was done without gross or wanton
negligence.29 The majority of prior litigation regarding the Act focuses on the third
element. Namely, it includes situations where the plaintiff alleges that a defendant
acted with gross negligence.
        Here, Mr. Eskridge’s complaint does not allege the absence of any of the
elements that would permit his claim to progress.                               He makes a conclusory
allegation that the Defendants acted recklessly, which the Court interprets as an
allegation that they were also grossly negligent. However, Mr. Eskridge does not
plead gross negligence with particularity as required by Delaware Superior Court
Rule 9. Namely, that Rule requires that “[i]n all averments of . . . negligence, . . .,



27
   Smith v. Bunkley, 2016 WL 4146449, at *3 (Del. Super. Ct. Aug. 3,2016) (citing J.L. v. Barnes, 33 A.3d 902, 913
(Del. Super. Ct. 2011)).
28
   Hartmann v. Sibbold, 2010 WL 3397482, at *1 (Del. Super. Aug. 30, 2010); but see Sherman v. State, 133 A.3d
971, 975–978 (Del. 2016) (discussing the effect of State self-insurance for law enforcement professional liability).
However, the State self-insurance program has not been alleged to apply to the case at hand.
29
   10 Del.C. § 4001.
                                                        10
the circumstances constituting . . . negligence . . . shall be stated with
particularity.”30
           In reviewing the claim against the four supervisory level employees, the
Complaint is devoid of facts touching on their alleged negligence, much less their
gross negligence or recklessness. Furthermore, with regard to the two correctional
officer defendants alleged to have direct involvement, there are no facts plead that
would permit the Court to infer that the two employees’ conduct constituted an
extreme departure from the duty of care owed Mr. Eskridge. As discussed above,
the complaint alleges that the officers suspected the inmates of drug use, and when
the officers, who were also within the facility, began feeling ill, they immediately
called emergency personnel and the building was evacuated. Accordingly, even if
sovereign immunity were found waived in this instance, the complaint is properly
dismissed pursuant to Rule 12(b)(6) because Mr. Eskridge failed to sufficiently
plead that any of the defendants were grossly negligent, or in the alternative, that
another element required by the State Tort Claims Act was missing.


                                    CONCLUSION
           For the reasons discussed, Mr. Eskridge’s complaint is hereby DISMISSED
pursuant to Superior Court Rule 12(b)(6).
           IT IS SO ORDERED.

                                                     /s/Jeffrey J Clark




30
     Super. Ct. Civ. R. 9(b).
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