IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHAEL DEFELICE
Plaintiff,

V_,, C.A. No. N14C-()9-084 VLM
BOBBY CUMMINGS, SHERI TULL,
ELMER HARRIS, STEP}HEN
MISETIC, HAROLD BOZEMAN,
VINCENT KNOLL, THE CITY OF
WILMINGTON, DELAWARE, and
CHARLES EMORY

€&/L/&/\/L/\/L/\/\/\/\/%/\/

Defendants;;

ME o RANUMf"

 

Submitted: July 29, 2016
Decided: August 16, 2016

Upon Consideratz`on of Defendants ’ Motz`on
for Summary Judgment, GRANTED.

Daniel C. Herr, Esquire, Wilmington, Delaware, Attorney for the Plaintiff.
Rosamaria Tassone-DiNardo, Esquire, and Tara M. DiRocco, Esquire, City of

Wilmington Law Department, Wilmington, Delaware, Attot'neys for the
Defendants.

MEDINILLA, J.

INTRODUCTION

Plaintiff Michael DeFelice ("Plaintiff’) alleges that certain officers of the
Wilmington Police Department ("WPD"), as well as the City of Wilmington,
Delaware, violated his rights under 42 U.S.C. § 1983, the wilmington City Code
and the Law Enforcement Officers’ Bill of Rights in connection with Plaintiff s
termination from the WPD in 20l4. Defendants Bobby Cummings, Sheri Tull,
Elmer Harris, Stephen Misetic, Harold Bozeman, Vincent Knoll, Charles Emory
and the City of Wilmington, Delaware ("Defendants"), move for summary
judgment as to all of Plaintiff’ s c1aims. Plaintiff concedes that Counts I, III, IV, V
and VI of his Amended Complaint cannot be established; however, Plaintiff
opposes summary judgment as to Amended Counts II, VII and VIII, which allege
violations of 42 U.S.C. § 1983 and the Wilmington City Code § 40-256. After
consideration of the parties’ submissions and review of the oral arguments
presented on July 29, 2016, for the reasons stated below, Defendants’ Motion for
Summary Judgment is GRANTED;,

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Michael DeFelice ("Plaintiff') was hired by the Wilmington Police
Department ("WPD") in July 2005. After four years of what appears to be an
exemplary work record, Plaintiff began experiencing conflicts at work. Beginning

in 20l0, Plaintiff’s supervisors began to question his work practices and his

fact and that the moving party is entitled to judgment as a matter of law." 25 "Once
the movant meets its burden, then the burden shifts to the non-movant to
demonstrate sufficiently an existence of one or more genuine issues of material
fact."% Summary judgment will not be granted if there is a material fact in dispute
or if "it seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances.’m In considering the motion, "[a]ll
facts and reasonable inferences must be considered in a light most favorable to the

8

non-moving party."z However, courts should not "indulge in speculation and

conj ecture; a motion for summary judgment is decided on the record presented and

not on evidence potentially possible."zg

ANALYSIS
A. Wilmington City Code § 40-256 Claim (Amended Count VII)

1. Section 4 0-25 6 Does N0t Create a Private Right of Action Available to
Plaintijj'

Plaintiff is a member of the Fratemal Order of Police (the "FOP"), which

 

5 s_uper. Ct. Civ. R. 56(¢)._

26 Qualily Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See also Moore v.
Sizemore, 405 A.2d 679, 681 (Del. 1979); Super. Ct. Civ. R. 56(e).

27 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
28 Nun v. A.C. & S. Co., lnc., 517 A.2d 690, 692 (Del. Super. 1986).

29 m re Asbes¢@s Lz¢zg., 509 A.2d 1116, 1118 (1)@1. Super. 1986)¢1,7¢1 sub nom Nzcole¢, ma v. Nun, 525
A.2d 146 (1)¢1. 1937).

ll

holds a Collective Bargaining Agreement ("CBA") with the City of Wilmington.w
Consequently, before discussing whether § 40-256 of the Wilmington City Code

(the "Code") creates a private cause of action, this Court first looks at the effect

of collective bargaining agreements under § 40-10:

(a) To the extent the provisions of this chapter conflict
with the terms of any applicable collective bargaining
agreement between the city and its employees, the terms
of the collective bargaining agreement shall govern.

(b) If a collective bargaining agreement is silent in
regard to matters  j_ssed in this chapter, the terms of

 
 

According to § 40-l0, the Code only applies to City of Wilmington
employees if there is no CBA or if the CBA is silent as to the matters discussed in
Chapter 40 of the Code. If a CBA exists and is in conflict with provisions of the
Code, the CBA governs. Regardless, Plaintiff contends he can still pursue a
private cause of action under § 40-256 of the Code.

Section 40-256 of the Code states: "Disciplinary measures may be taken
for any good and sufficient cause. The extent of the disciplinary action taken
shall be commensurate with the offense, provided that the prior employment
history of the employee may also be considered."” The Code does not expressly

create a private cause of action. Where a statute does not expressly create a

30 .S:ee generally City of Wilmington & FOP Lodge #l Bargaining Agreement l-35, App. A-394~A-43 l.-¢

3' Wzlm. C, ¢11.40, § 40-10 (2004).

32 Wilm. C. ¢11.40, § 40-256 (2004).

12

private remedy, Delaware has adopted the United States Supreme Court’s test
from Cort v. Ash33 to determine if a private cause of action under an otherwise
silent statute exists. The Cort test asks:
(l) ls the plaintiff a member of the class for whose
special-benefit the statute was enacted? (2) ls there any
indication of a legislative intent, express or implied, to
create a private remedy or deny one? (3) ls it consistent
with the underlying purpose of the legislative plan to
imply a private remedy?34
This Court finds that Plaintiff cannot satisfy the first factor of the Cort test;
Plaintiff is not a member of the class for whom the Code was enacted, because he
is a member of FOP and is therefore subject to the provisions of the CBA. Section
40-256 is not applicable to the claims in Plaintiff s Amended Complaint because
Article 13 of the CBA explicitly addresses WPD disciplinary proceedings”_
including officer discipline-and Article 4 provides a grievance procedure,% the
same matters addressed by Chapter 40 of the Code. Because the CBA is not silent

with regard to the matters covered by Chapter 40 of the Code, the terms of

Chapter 40 of the Code-including § 40-256-are inapplicable to the instant

33 4_22 u.s. 66 (1975).

34 Miller v. Spicer, 602 A.2d 65, 67 (Del. l99l). See also Torres v. Sussex Cty. Council, 2014 WL
7149179, at *3 (Del. Super. Dec. 8, 2014).

35 See City of Wilmington & FOP Lodge #l Bargaining Agreement §§ l3.2-l3.l3 at 14-18, App. at A-
4l 0-A-4l4 (describing "work rules and regulations," including CHB and Appeal procedures).

36 see zd. §§ 4.1-4.13 ar 3-4, App. ar A-399-A-400 (describing “grievance pr<>¢edure” for WPD

employees to seek review of issues relating to unfair or improper aspects of employment including
alleged violations ofthe CBA).

13

:Iz;\=

matter. Plaintiff has no cause of action under § 40-256.

Furthermore, the other Cort factors are not satisfied as there is no indication
of a legislative intent to create a private cause of action and implying one would be
inconsistent with the underlying purpose of the legislative plan. Analyzing § 40-
256 in light of the other provisions of Chapter 40, Article II, Division 5 of the
Code,37 it is clear that the Code is more of an internal guideline governing the
disciplinary and grievance proceedings pertaining to the City’s non-union
workforce and unionized workers whose CBAs are silent with regard to matters
covered in Chapter 40 of the Code.38

Because Plaintiff fails to satisfy the Cort test and the CBA otherwise
governs VVPD disciplinary proceedings, Plaintiff is unable to establish that there
exists a genuine issue of material fact and summary judgment as to Amended
Count VII is GRANTED as a matter of law in favor of all Defendants.

2. Defendants Are Immune under the County and Municipal Tort Claims Act
(10 Del. C. §§ 4010-4013)

Even if § 40-256 provided a private cause of action not governed by the

-=_»1¢¢

 

37 see Wzlm. C. ¢h. 40, § 40-257 (“[Dis¢iplinary a¢ri<>n]_i<inds of a¢ri<>n; dennirions."); § 40-258
("Same-Effective date."); § 40-259 ("Same-Authority; due process."); § 40-260 ("Same_Notice to
employees."); § 40-271 ("Grievances and appeal-Scope and limitations."); § 40-272 ("Grievance and
appeal procedures."); § 40-273 ("Personnel appeal board."); § 40-274 ("Personnel_Disciplinary appeal
procedures.").

38 See generally Torres, 2014 WL 7149179, at *4 (granting motion to dismiss because Sussex County
Personnel Ordinance "does not create a private cause of action. The Ordinance merely establishes the
procedures for removal [of an employee]; it does not create the tort of wrongful termination.  [I]f
anything, [the Ordinance] is more akin to an internal guideline, which does not have the force of law, than
a statutory prohibition." (footnotes omitted)).

l4

CBA, Plaintiff’ s claim in Amended Count Vll is otherwise barred by the County
and Municipal Tort Claims Act (the "Act").

The Act provides: "Except as otherwise expressly provided by statute,"
government entities and their employees are immune from suit "on any and all tort
claims seeking recovery of damages."” However, an employee may otherwise be
personally liable for acts or omissions causing "property damage, bodily injury or
death" if the acts were not within the scope of employment or if they were
performed with wanton negligence or willful and malicious intent.40

Plaintiff has not sufficiently demonstrated why or how § 40-256 "operates as
a self-imposed exception" to the Act,‘" particularly where § 401 l(a) states
"[e]xcept as otherwise expressly provided by statute.""z lt certainly cannot be said
that § 40-256 "expressly" provides an exception to this immunity. Moreover,
Plaintiff fails to explain how his claim falls within one of the limited recognized
exceptions to immunity under § 40l2 of the Act-Plaintiff has not alleged that
Defendants caused him property damage (which must be more than economic

damages for loss of income43), bodily injury or death,‘m let alone one of the three

-1__-  ____,_1_,_,;

'3°`10 D_el._cj§=¢iol i(a)_.

"° 10 Del. C. §4011(¢).

41 Pl.’s Answering Br. at 20.

42 10 Del. C. § 401 l(a) (emphasis added).

43 See Dale v. T own of Elsmere, 702 A.2d l2l9, 1223 (Del. 1997) (adopting the holding of Carr v. T own

15

: ¢1\;

ofDe-w.ey Beach, 7_30 F. Supp. 5917,_6(_)2 (_D. l_)el. 1990), that "economic harm alone does not constitute

recognized exceptions to immunity under § 4012(1)-(3).45

For these additional reasons, summary judgment in favor of all Defendants
is also appropriate where the County and Municipal Tort Claims Act bars

Plaintiff` s § 40-256 claim.

B. Secti0n 1983 Procedural Due Process Claims (Amended Counts II
and VIII)

1. Qualified Immunily
Defendants invoke the doctrine of qualified immunity that protects
government officials and employees "from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known."46
To determine whether qualified immunity applies, this Court evaluates (l)

whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right and (2) whether the right at issue was "clearly established" at

_i _ ________-__ 12 1

 

‘property damage’ as that term is used in the Act."); Poulos v. Cily of New Castle, 2014 WL 7205l69, at
*7 (D. Del. Dec. l5, 20l4) ("The complaint seeks damages for garden variety emotional distress,
humiliation, embarrassment, and injury to reputation. Harm to reputation constitutes economic loss, not
injury to person or property."); jackson v. Stallz`ngs, 2014 WL 1677647, at *3 (Del. Super. Apr. l7, 2014)
("At most, Plaintiff claims financial loss... however, financial loss cannot constitute property damage."),
ajj"d sub nom. Jackson v. Diza’ar, 2015 WL 1049555 (Del. Mar. ll, 2015).

""101)€1. C. §4012.
45 10 Del. C. § 4012(1)-(3) (providing exceptions to immunity for negligent ministerial acts). See also

Davz`s v. Town of Georgetown, 2001 WL 985098 (Del. Super. Aug. 22, 2001) (granting motion for
summary judgment and holding that municipalities and their employees are immune from suit for claims

alleging wrongful discharge), ajj"d, 806 A.2d 164 (Del. 2002).

"° Harlow v. Fizzgerald, 457 U.s. 800, 818 (1982).

16

 

the time of defendant's alleged misconduct.‘" In determining whether a right was
clearly established, the relevant "inquiry is whether a reasonable officer could have
believed that his or her conduct was lawful, in light of the clearly established law
and the information in the officer's possession."48

Defendants’ argument is three-fold: l) Plaintiff has not suffered a violation
of a constitutional right and Defendants are entitled to qualified immunity; 2) even
if Plaintiff suffered a violation of his constitutional rights, a reasonable officer
could have believed Defendants’ conduct was lawfiil given the circumstances
presented in this matter; and 3) even if this Court finds Defendants erred in what
the law required, Defendants’ mistake was reasonable. As such, Defendants are
entitled to qualified immunity and Plaintiff’s claims must be dismissed.

For the reasons discussed below, this Court finds that Plaintiff fails to
establish a violation of his procedural due process rights by Defendants
Cummings, Tull, Misetic, Harris, Bozeman and Knoll. Therefore, this Court need
not address whether the violation, if one had occurred, was of a "clearly

established" right.49 Defendants are entitled to qualified immunity and Plaintiff’ s §

1983 claims are barred and otherwise fail as a matter of law.

"" Pears@n v. cazzahan, 555 u.s. 223, 236 (2009) (receding from Sauczer v. Kazz, 533 u.s. 194 (2001)

and instructing that courts can begin evaluation with either prong).

48 Sharrar v. Felsing, 128 F.3d 8l0, 826 (3d Cir. l997), abrogated on other grounds by Curley v. Klem,
499 F.3d 199 (3d Cir. 2007).

49 Pearson, 555 U.S. at 232.

17

2. PlaintijfFails to Establish A Violation of Procedural Due Process Based on
His "Impartial Decision-Makers" Claim (Amended C0unt II)

lt is well established that a "fair trial in a fair tribunal is a basic requirement
of due process. Faimess requires an absence of actual bias."50 This requirement
applies to courts as well as administrative agencies that adjudicate.$l Among those
situations where the probability of actual bias on the part of the judge or decision-
maker is too high to be constitutionally tolerable are cases in which "the
adjudicator has a pecuniary interest in the outcome and in which he has been the
target of personal abuse or criticism from the party before him."§z Another
instance arises where a judge acts "as a grand jury and then tr[ies] the very persons
accused as a result of his investigations."” This is not the case here.

Instead, where, as here, a party contends "the combination of investigative
and adjudicative functions necessarily creates an unconstitutional risk of bias in

administrative adjudication," that party has a "much more difficult burden of

111-1 _1_§

win re A_Jurchison:¢i§ii.s. §3', 136 (1955).

51 Wz`throw v. Larkin, 42l U.S. 35, 46 (1975). Cf Cleveland Ba'. ofEduc. v. Loudermill, 470 U.S. 532,
542 (l985) ("An essential principle of due process is that a deprivation of life, liberty, or property ‘be
preceded by notice and opportunity for hearing appropriate to the nature of the case.’  This principle
requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally
protected property interest in his employment." (footnote and citations omitted)).

52 Withrow, 421 U.S. at 47 (footnote omitted). See also _._T umey v. Ohz`o, 273 U.S. 510 (l927) (finding
procedural due process violation where defendant was convicted of criminal offense, fined and committed
to jail by judge who had direct, personal, substantial, pecuniary interest in reaching decision to convict).

53 m re Murchis@n, 349 U.s. ar 137.

18

persuasion to carry."54 As the United States Supreme Court explained in Withrow

v. Larkz`n,

[Plaintiff’s contentions] must overcome a presumption of
honesty and integrity in those serving as adjudicators;
and it must convince that, under a realistic appraisal of
psychological tendencies and human weakness,
conferring investigative and adjudicative powers on the
same individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the
 of due process is to be adequately

     

As courts have since observed, "there is strong presumption of impartiality
which is not lightly rebutted, and only in ‘the most extreme of cases’ will it be
overcome."56 "Personal bias or prejudice ‘alone would not be sufficient basis for
imposing a constitutional requirement [of disqualification] under the Due Process
Clause."’57 The disqualifying criteria "cannot be defined with precision.
Circumstances and relationships must be considered."58 Based on this record, the
Plaintiff does not overcome the strong presumption of impartiality afforded to

Defendants Misetic, Harris, Cummings, Bozeman and Tull with regard to their

54 rVzr/rraw, 2121 U.s. ar 47_.`,

 

§Sld

56 Walls v. City of Milford, 938 F. Supp. l2l8, 1224 (D. Del. l996) (quoting Aema Lzfe Ins. Co. v. Lavoie,
475 U.S. 813, 821 (l986)). See also C0les v. Delaware River & Bay Auth., 2010 WL 335612, at *4 (D.
Del. Jan. 29, 20lO) ("[W]hile the plaintiffs are entitled to unbiased and impartial hearing officers, courts
have consistently held that a board is not per se biased simply because it performs the twin functions of
investigation and adjudication." (citation omitted)).

57 Caparraa v. A. 71 Maasay coal Ca., 556 U.s. 868, 877 (2009) (quoting Lavaza, 475 U.s. ar 820).

58 1a re Marahzsaa, 349 U.s. ar 136.

19

respective roles and/or connections to the CHB and Appeal hearings.59

The facts of this case are similar to those present in Izquz`erdo v. Sz`lls, where
the plaintiff-officer was similarly placed on administrative leave, prohibited from
carrying weapons on or off duty and prohibited from working extra duty or
overtime assignments during the course of an investigation regarding his
dishonesty and excessive use of force.6O Also similar to the instant matter, the
plaintiff in Izquz'ercz'o alleged that he was deprived of procedural due process based
on the partiality of the administrative board that adjudicated the charges against
him and after finding him guilty, terminated him.:él

The court granted summary judgment, holding that the plaintiff could not
establish a violation of due process based on the allegation that the defendant,
inspector of the WPD, had "tainted" the Chief by informing him of the progress of

the investigation.@ The court held:

informing the Chief is not itself a direct constitutional
injury. Indeed, a strong argument can be made that a
police Chief should be informed of alleged errant
conduct by officers under his command. Further, having
information about the case does not in itself create any

~`¢E

 

59 Defendants Misetic and Harris adjudicated the CHB hearing and found Plaintiff guilty of dishonesty.

Defendants Cummings and Bozeman adjudicated the Appeal hearing and upheld the determinations of the
CHB. Defendant Tull is accused of tainting both proceedings by sending the emails regarding Plaintift’ s
administrative leave and that he was banned from headquarters.
°°68rtsupp.2d392,400,420(r11)a.1999y

°'1¢1 ar404, 416.

°Zld. at419____g

20

personal integrity. Plaintiff was, at all times relevant, a member of the Fraternal
Order of Police ("FOP") Lodge #l_(i.e., the police officers’ union for the WPD).
As a result, Plaintiff was subject to a Collective Bargaining Agreement ("CBA")
with the city of wiimington.‘

On September 28, 2013, Plaintiff was transporting a prisoner to the
Wilmington Hospital emergency room. While Plaintiff was attempting to secure
him inside the room, the prisoner allegedly became unruly, requiring Plaintiff to
handcuff the prisoner’s hands behind his back. Plaintiff claimed that the prisoner
continued to act in an unruly manner, threatened Plaintiff and Plaintiff s family,
attempted to grab Plaintiff`s taser and that in order to secure the prisoner, Plaintiff
had to use physical force and the threat of a taser.

Pursuant to WPD Directives 6.7 and 7.9(B), Plaintiff was required to notify
his supervising officer of the use of force and complete a report regarding the
September 28, 2013 Incident (the "Incident").z After Plaintiff reported this use of
force, Sergeant Vincent Knoll ("Knoll"), as Plaintiff’s supervising officer, was
required to complete a "Defensive Tactics Report" describing the circumstances

and facts surrounding the Incident and his conclusions as a result of the

T_t$`:e generally City of Wilmington & FOP Lodge #l Bargaining Agreement l-35, App. to Defs.’
Opening Br. at A-394-A-43l [hereinafter App.].

2 WPD "Use of Force/Departmental Weapons" Directive 6.7(V)(D)(l) at 5~6, App. at A-44l-A-442;
WPD "Use of Force" Directive 7.9(B)(l) at l, App. at A-457.

"°3 ld. ar 4_12._

risk of a constitutional violation.63

Applying Izquierdo to the facts of the instant matter, Plaintiff fails to
establish that a genuine issue of material fact exists as to whether Defendants
violated Plaintiff’s procedural due process rights. The fact that Plaintiff was
placed on administrative duty, with all the ancillary conditions that accompany it,
pending the CHB does not evidence actual bias. That Cummings and Bozeman, as
Captain and FOP President, were apprised of the investigation into the lncident
also does not establish they were actually biased in deciding Plaintiff’ s appeal.

Plaintiff argues that actual bias can be inferred or implied primarily in the
context of rumors and gossip. However, simply because members of an
administrative board may be "cognizant of rumors unfavorable to the plaintiff’
does not mean they "reached an adverse decision without considering the
record."64 That Defendants were informed Plaintiff was banned from the building
and some may have been aware of concerns with Plaintiff does not establish they
were actually biased their adjudication of the charges against Plaintiff.

Plaintiff further alleges Defendants Misetic and Harris were biased during
Plaintiff s CI-IB hearing based on their respective involvement in prior
investigations in 2012 into Plaintiff s possible dishonesty regarding his military

history. He argues that Misetic’s and Harris’ bias can be established by showing

__l__n_=§

64 Hopkins v. Mayor & Council of City of Wilminglon, 600 F. Supp. 542, 550 (D. Del. 1984)§

21

how they asked questions of witnesses at the CHB hearing. Plaintiff interpreted
the tone of the questions to be "actively recuperating witnesses for [the]
prosecution" and believed Misetic and Harris acted like prosecutors themselves.“
Plaintiff may have perceived some of the questioning as prosecutorial in tone, yet

acknowledges that board members are permitted to ask questions during these

kinds of hearings.66

Furthermore, the fact that Defendants had prior dealings with Plaintiff, either

related to the Incident or past investigations and/or adjudications pertaining to

7

Plaintiff s conduct, is insufficient to demonstrate actual bias.6 None of these

Defendants-Misetic, Harris, Cummings, Bozeman and Tull_performed the
"twin functions of investigation and adjudication" with regard to the Incident.68 In
this case, Knoll, who performed the preliminary investigation, and Emory, who
performed the formal investigation, did not sit on the hearing boards.

Plaintiff attempts unsuccessfully to analogize the circumstances of ln re

Murchz'sonég to his instant matter. The circumstances and relationships presented

_--=_=_'

65 michael D¢Felice’s Mar. 2, 2016 Dep. ar 71;16-18, 71;22-72;5, App. ar A-201.

66 14 ar 72;17-23, App. ar A-201.

67 See Withrow, 421 U.S. at 47. See also Town ofCheswold v. Vann, 947 A.Zd 1 123, 2007 WL 1201716,
at *2-*3 (Del. Apr. 23, 2007) (TABLE) (f`mding town council members who sat on former police chiefs
hearing were not biased simply because they had also investigated chiefs alleged wrongdoing).

68 Coles, 2010 wL 335612, ar *4.

6" 349 u.s. 133.

22

in that case are much different than the case here.70 Applying the holding of that
case to the facts of the instant matter, it is clear that Emory, as the OPS investigator
who determined to bring charges against Plaintiff, would have been precluded
from adjudicating Plaintiff’s disciplinary hearings. However, Emory did not sit on
either of these Boards, but rather performed the formal investigation and presented
the case against Plaintiff at the hearings; Knoll, who provided the first
recommendation that OPS further investigate the Incident, likewise did not sit on
either of these hearing boards. Finally, Plaintiff could have sought the
disqualification of Harris and Misetic prior to the CHB hearing pursuant to Section
l3.5(c) of the CBA if he had concerns of their alleged knowledge of his prior
history." Plaintiff opted not to do so. He similarly could have sought the
disqualification of Bozeman from his Appeal Hearing based on his "prior
confidential communications" with Plaintiff, his belief that Plaintiff was a threat
because of his email to Emory or his unfulfilled recusal from Plaintiff’ s Appeal
72

Board hearing; yet he did so only after Bozeman voted to uphold his termination.

At all relevant times Plaintiff was represented by counsel, who created a

70 In In re Murchison, criminal contempt proceedings arose out of witnesses’ conduct before a Michigan

grand jury; the judge who sat as the Michigan "judge-grand jury," before which the witnesses had
testifled, also presided over the contempt hearing wherein the witnesses were found in contempt for their
conduct before the "one-man grand jury" (i.e., the judge-grand jury). Id. at 134-36. The United States
Supreme Court held that it was a violation of due processes for the "judge-grand jury" to charge and then
try those witness-defendants. Id. at 139.

7' City of Wilmington & FOP Lodge #l Bargaining Agreement § l3.5(c) at 15, App. at A-41 l.

72 michael D@Felice’s Mar. 2, 2016 Dep. ar 92;1-95;12, App. ar A-206-A-207.

23

record at the CHB hearing.73 Plaintiff exercised his right to appeal the CHB ruling.
Plaintiff raised those same concerns at the subsequent Appeal Board hearing. The
Appeal Board determined that Plaintiff’s argument was without merit and upheld
the CHB decision terminating Plaintiff. Plaintiff’ s then-counsel again created a
record regarding the impartiality and fairness of the Appeal hearing, as
"[i]mpeccable. Impeccable. Thank you very much. l think this was eminently
fair.""*

Under these circumstances, this Court finds that Plaintiff has failed to
establish a violation of his procedural due process right to impartial hearing
boards.75 The CHB reviewed the record before them, including Plaintiff s report,
and reviewed the surveillance video of the incident before finding against Plaintiff
on the charges of excessive force and dishonesty. Defendants have met their
burden of demonstrating that there are no genuine issues of material fact remaining
as to Count ll of Plaintiff s Amended Complaint, and Plaintiff does not sufficiently

rebut Defendants’ showing. Accordingly, summary judgment as to Amended

Count ll is GRANTED as a matter of law in favor of all Defendants.

_- =-\_

73 Daniel Griffith, Esq., CHB H_e-aring Tr. at 288:19-289:14, App. at A-72-A-73.

 

va

74 Daniel Griffith, Esq., Appeal Hearing Tr. at 38:21-23, App. at A-l l3.

75 This Court need not address Defendants’ argument regarding whether Plaintiff has waived his "bias
argument" as a matter of law.

24

3. PlaintiffFails to Establish a Deprivation of Procedural Due Process Based on
Kn0lls’ "F ailure to Disclose Exculpatory E vidence " (Amended C0unt VIII)

Lastly, Plaintiff asserts that he was deprived of his procedural due process
rights by Knoll’s failure to disclose the initial draft of his Defensive Tactics Report
prior to the CHB and Appeal hearings. This .Court disagrees.

Pursuant to WPD Directive 6.7, Plaintiff was required to report any use of
force to his supervising off1cer.76 Knoll, as his supervising officer, was required to
complete a Defense Tactics Report detailing the circumstances and facts
surrounding the ~Incident and his conclusions as a result of the preliminary
investigation. However, Knoll did not have the authority to determine whether
Plaintiff would actually be charged with a violation of WPD directives or polices.
Rather, Knoll simply conducted the preliminary investigation required of an
immediate supervising officer and then sent his report up the chain of command; it
was Emory who formally initiated the investigation into the Incident and presented
evidence against Plaintiff at the CHB and Appeal hearings.

Plaintiff fails to establish how Knoll had an obligation to provide him with a
draft of his report. Even if it could be established that Plaintiff had some right to a
draft, Directive 8.4 does not require OPS to notify an accused officer prior to any

investigative actions being taken, because preliminary investigations may ferret out

76 WPD "Use of Force/Departmental Weapons" Directive 6.7, App. at A-437-A-449;.-

 

25

meritless accusations obviating any need to speak to the accused off`icer.w
Although Knoll made a recommendation, and was clearly under a duty to pass it up
the chain of command, there is no evidence to suggest that Knoll also had an
obligation to present his findings and recommendations to Plaintiff at any time, let
alone an unfinished draft version of his report.

Finally, Plaintiff fails to set out in any meaningful way how this version of
Knoll’s report was exculpatory, as is his claim. If anything, the draft could speak
to Knoll’s credibility if he changed his determination as to the finding of
dishonesty, but Plaintiff has not explained how access to this draft would have
changed the outcome in this case. Wholly aside from the recommendations of
Knoll, the OPS investigation was formally initiated by Emory, who conducted his
own investigation and was not bound to follow Knoll’s recommendations.” The
CHB undertook a review of the record and the surveillance video prior to making
its determination, which was affirmed by the Appeal Board. Defendants were able
to draw their own conclusions as to whether Plaintiff had been dishonest in his

reporting of the Incident and his use of excessive force.

 

 

" Elm§r Harr'is’ De¢. 2,' 015 Dep. ar 49;22_51;3, App. ar A-240-A-241.

78 Notably, Plaintiff was investigated in 2012 for possible dishonesty in connection with military
deployment history. That matter was initially investigated by Master Sergeant Steven Barnes, who
recommended that Plaintiff be charged with dishonesty; Bames’ report was sent to OPS. Sergeant
Reutter of OPS then began a formal investigation as to whether charges should be brought against
Plaintiff. lnterestingly, OPS’s investigation in 2012 found those complaints against Plaintiff to be
unsubstantiated. Reutter’s May l0, 2012 OPS Investigative Report, App. at A-472-A-477. Harris, who
was the Captain of OPS at that time, signed off on that recommendation. Id. at A-477.

26

Based on the record before it, this Court finds Defendant Knoll has met his
burden of demonstrating that there are no genuine issues of material fact remaining
as to Count VIII of Plaintiff’ s Amended Complaint, and Plaintiff does not
sufficiently rebut Defendant’s showing. Accordingly, summary judgment as to
Amended Count VIII is GRANTED in favor of sole Defendant Knoll.

CONCLUSION

Defendants have satisfied their burden under Rule 56. This Court therefore
finds as to Amended Counts I, II, IV, V and VII, summary judgment is
GRANTED in favor of all Defendants; as to Amended Count III, summary
judgment is GRANTED in favor of sole Defendant Tull; as to Amended Count Vl,
summary judgment is GRANTED in favor of sole Defendant Cummings; and as to
Amended Count VIII, summary judgment is GRANTED in favor of sole
Defendant Knoll.

IT IS SO ORDERED.

  
  
 

 

'__.

 .,.   
Judge Vivian  

oc:_`g§ Prothonotary

27

 

preliminary investigation.3 Pursuant to this Directive, Knoll conducted interviews
at the hospital, read Plaintiff’ s report4 and viewed the surveillance video.

Knoll found that Plaintiff’ s report and description of the Incident was
contradicted by the surveillance video. The surveillance video showed Plaintiff
using an unauthorized rear choke-hold but, contrary to Plaintiff s representations,
did not show the prisoner grabbing Plaintiff’s taser or Plaintiff using the authorized
pressure points to gain control over him.

As a result of the inconsistencies discovered through his investigation of the
Incident, Knoll believed Plaintiff to have violated WPD Directive 7.9(A)(2)5
relating to use of force and WPD Directive 7.3(D)6 relating to dishonesty. Knoll
therefore recommended that the Office of Professional Standards ("OPS") further
investigate the matter.7 Knoll then submitted his Defensive Tactics Report up
through his chain of command to OPS for review as required by VVPD Directive

2.3.8 Plaintiff claims that an initial draft of Knoll’s report was modified due to

 

3 WPD "Use of Force/Departmental Weap0ns" Directive 6.7(V)(D)(2) at 6, App. at A-442.
4 Michael DeFelice’s Sept. 28, 2013 Initial Crime Report, App. at A-485-A-490.
5 WPD "Use of Force" Directive 7.9(A)(2) at l, App. at A-457.

6 WPD "General Prohibited Activity" Directive 7.3(D) at 2, App. at A-451 (requiring all members and
employees "to be truthful and forthright at all times.").

7 See Vincent Knoll’s Oct. 12, 2013 Defensive Tactics Report, App. at A-386-A-390 (reporting
conclusions of Knoll’s investigation into the Incident and recommending OPS investigate the Incident).

8 WPD "Offlce of Professional Standards" Directive 2.3, App. at A-432-A-436.

influences from higher up the chain of command.9

At the end of 2013 or beginning of 2014, Master Sergeant Charles Emory
("Emory"), an investigator with OPS, initiated the formal investigation of the
incident and the accusations against Plaintiff.m As part of the investigation, Emory
interviewed Plaintiff. During the interview, Plaintiff offered an explanation
regarding the discrepancies in his report, again maintaining that force was required
because the prisoner was actively resisting.

Emory reported his findings and determined that Plaintiff had used excessive
force against a handcuffed prisoner and was dishonest.“ Emory recommended that
Plaintiff be charged with violating Directive 7.3(D) (Dishonesty) and Directive
7.9(A)(2) (Use of Physical Force); he further recommended that the matter proceed
to a Complaint Hearing Board ("CHB"), an administrative hearing.lz

On May 23, 20l4, Plaintiff emailed Emory, with a copy to Sergeant Harold
Bozeman ("Bozeman"), FOP President, regarding the termination of Plaintiff’ s
medical benefits if he was found guilty of dishonesty at the CHB hearing. Plaintiff

expressed he felt "ambushed" physically and that if his health benefits were

gm _... _ ____ ___

9 See Vincent Knoll’s Oct. 12, 2013 Defensive Tactics Report, App. at A-381-A-385 (draft of Knoll’s
Defensive Tactics Report regarding his investigation of the Incident).

'° See OPS’s Jan. 14, 2014 "Notiflcation of Complaint" to Michael DeFelice at l, App. at A-49l
(notifying Plaintiff of investigation into possible violation of Directive 7.3(D) relating to dishonesty).

" See generally Charles Emory’s Apr. 7, 2014 OPS Supplement Report at l-l5, App. at A-339-A-353.

‘2 see la at 12-15, App. at A-350-A-353.

terminated, WPD would be effectively "slitting [his] wife and children’s throats."w

Concerned with the threatening tone of Plaintiff s email, an emergency meeting
was held that afternoon between Chief Bobby Cummings ("Cummings"), OPS
Captain Sheri Tull ("Tull") and Emory. As a result, Plaintiff was placed on
administrative leave pending his CHB hearing.

That same day, Tull gave Plaintiff a memorandum advising him of the
administrative leave pending the CHB hearing.m As part of this administrative
leave, Plaintiff had to surrender his key card, could not carry on or off-duty
weapons at any time, was not permitted access to WPD headquarters and could not
work overtime.l§ Two sergeants escorted Plaintiff to the locker room and seized
his work firearm as well as his personal firearm. Tull then sent a mass email to
WPD employees informing them that Plaintiff was on administrative leave and

banned from the building until his CI-IB hearing.lé

At the CHB hearing on June 2, 2014, the hearing board was comprised of

_-1.___.__-5'

'3 Michael DeFelice’s May 23,_2014 Email to Charles Emory, App. at A-369.

14 See Sheri Tull’s May 23, 2014 Mem. to Michael DeFelice, App. at A-530.

l$]d

'° Sheri Tull’s May 23, 2014 "Officer Defelice" Email to WPD Employees, App. at A-33l (advising
members of "WPD_J___Al_l#Users" listserv that Plaintiff "has been placed on administrative leave as of
today. Off`lcer Defel'ice"'is not to have access in building until Tuesday, May 29, 2014 @ 0900 hours.").
Another email containing the same information was sent to WPD employees when the CHB hearing was
rescheduled. See Sheri Tull’s May 28, 2014 "Officer Defelice - Update" Email to WPD Employees,
App. at A-330 (advising members of "WPD_All*__¢Users" listserv that Plaintiff’s "CHB has been
rescheduled for Monday, June 2, 2014 at 1000 hours'. Officer Defelice will remain on administrative
leave until such time. Off`lcer Defelice is not to have access to or in the building.").

then-Captain Elmer Harris ("Harris"), Captain Faheem Akil and Captain Stephen
Misetic ("Misetic");w Plaintiff was represented by counsel and pleaded not guilty.
Plaintiff alleges that that Emory presented evidence at the CHB that he had
gathered prior to Plaintiff being put on notice of the investigation and complaint
against him and that the CHB relied on this evidence in making their determination
to terminate Plaintiff. Plaintiff also claims Defendant Knoll failed to provide
exculpatory evidence_a draft of the report prepared by Knoll concerning the
Incident-that would have allowed him to present a better defense.

The CHB unanimously found Plaintiff guilty of excessive force and found
Plaintiff guilty of dishonesty by a majority (Harris and Misetic); he was terminated
from the WPD as a result of the dishonesty charge,lg the only penalty permitted.w

A third email was sent on June 3, 2014, informing WPD employees that Plaintiff

was terminated and not permitted in the building except for his Appeal hearing.zo

'7 This composition of a Complaint Hearing Board is contemplated pursuant to § 13.5 of the CBA and
WPD "Complaint Hearing Board" Directive 8.7. See City of Wilmington & FOP Lodge #l Bargaining
Agreement § 13.5 at l5, App. at A-411 (disciplinary hearings shall be conducted by CHB, which must be
comprised of Captains or Inspectors, excluding Inspector of Investigative Operations and Captain of
OPS); WPD "Complaint Hearing Board" Directive 8.7 at l, App. at A-461 (CHB must be comprised of
officers holding rank of Captain or above, excluding Chief of Police, Inspector of Staff Inspections, and
Commanding Off`lcer of OPS).

'8 See OPS’s June 2, 2014 "CHB Findings and Results" at l-2, App. at A-392-A-393.

'9 WPD "General Prohibited Activity" Directive 7.3(D) at 2, App. at A-45l (mandating dismissal as the
only penalty applicable to findings of dishonesty).

20 Sheri Tull’s June 3, 2014 "Officer Defelice" Email to WPD Employees, App. at A-329 (advising
members of "WPD____All_:_$lJsers" listserv that Plaintiff "was terminated from the Wilmington Police
Department. Until such time as his appeal hearing is scheduled, Officer Defelice is still not allowed
access to or in the building." (emphasis removed)).

On June 6, 2014, Plaintiff appealed the CHB determinations and challenged
the roles of certain Defendants as to their impartiality.zl On July 24, 20l4, the
WPD Appeal Board, consisting of Cummings, Bozeman and the Director of HR,
Charlotte Barnes,zz unanimously upheld Plaintiff s termination.n Although
Plaintiff s then-counsel raised the CHB’s alleged lack of neutrality and attacked
Knoll’s motivations, he opined that the Appeal board had been "eminently fair"
and "impeccable" in its review of the matter.z‘l

Plaintiff filed the instant action on September l0, 2014, against Bobby
Cummings, Sheri Tull, Elmer Harris, Marlyn Dietz, Stephen Misetic, Martin
Donohue, Harold Bozeman, Vinc'ent Knoll, and Charles Emory. Plaintiff asserted
claims pursuant to 42 U.S.C. § 1983, ll Del. C. § 9200 (the Law Enforcement
Officers’ Bill of Rights, or "LEGBOR") and the Wilmington City Code § 40-256.
On December l, 2014, Defendants filed a Motion to Dismiss the Complaint, which
this Court denied on March 13, 2()15. On April 6, 2016, Plaintiff filed an

Amended Complaint. The parties have since completed discovery.

_-.1_-_1 __ ».'

 

DeFelice at l-3, Ex. C to Pl.’s Answering Br.

22 This composition of an Appeal Board is required pursuant to § 13.10 of the CBA and WPD "Appeal
Board" Directive 8.8. See City of Wilmington & FOP Lodge #l Bargaining Agreement § 13.10 at l6,
App. at A-4l2 (Appeal Board must be comprised of the Chief of Police, the Human Resources Director
and the FOP President, or their designees); WPD "Appeal Board" Directive 8.8 at l, App. at A-466
(Appeal Board must be comprised of Chief of Police, Personnel Director of the City of Wilmington and
an FOP Lodge #l member not directly connected with prior CHB, or their designees).

23 See WPD’s July 24, 2014 "Appeal Board Hearing Findings" at l-3, App. at A-377~A-379.

24 Daniel Griffith, Esq., Appeal Hearing Tr. at 38:2l-23, App. at A-l 13_\-,

Defendants moved for summary judgment and filed their Opening Brief on
June l7, 2016. Plaintiff submitted his AnsWering Brief on July 8, 20l6, conceding
the inability to establish some of his claims while opposing others. On July l5,
2016, Defendants submitted their Reply Brief. The Court heard oral arguments on
July 29, 20l6.

Plaintiff concedes his Stigma-Plus Liberty Interest claim (Amended Count
I), his LEOBOR claims (Amended Counts III, IV and V) and his Deprivation of
Handgun claim (Amended Count VI) cannot be sustained. However, Plaintiff
maintains that Amended Counts II, VII and VIII have been sufficiently established
so as to survive summary judgment. This Court therefore focuses solely on these
three remaining claims.

Defendants first argue that Plaintiff` s claim alleging a violation of the
Wilmington City Code § 40-256 (Amended Count VII) fails as a matter of law
because the Code does not provide a private cause of action available to Plaintiff
since he is a party to the CBA. Altematively, Defendants argue that even if § 40-
256 did create a private cause of action, Plaintiff’s claim against the City of
Wilmington and individual Defendants is barred by the County and Municipal Tort
Claims Act under 10 Del. C. §§ 40l0-40l3.

Secondly, as to Plaintiff’ s § 1983 claims alleging violations of his

Fourteenth Amendment right to procedural due process, Defendants argue that

these claims fail as a matter of law because Defendants are entitled to qualified
immunity on Amended Counts ll and VIII and Plaintiff cannot establish a
constitutional violation of his procedural due process rights. Specifically, as to
Amended Count II, Defendants argue that Plaintiff’s claim fails as a matter of law
because the record evidence does not rebut the strong presumption of impartiality
afforded to hearing off`1cers. Specific to Amended Count VIII, Defendants argue
that Plaintiff’ s "failure to disclose exculpatory evidence" claim fails as a matter of
law because his reliance on the initial draft of Knoll’s report as it relates to his due
process argument is misplaced, since the record shows that Knoll did not have the
authority to determine whether Plaintiff would be charged with a violation of
dishonesty, a decision that is left to OPS. Defendants argue alternatively that, even
if Knoll’s unapproved and incomplete draft of the report should have been
included under his LEOBOR rights, a violation of LEOBOR does not amount to a
constitutional violation of due process and that Plaintiff has not demonstrated
Knoll had any obligation to provide Plaintiff with said draft.

Having considered the parties’ respective briefing and oral arguments, this is
the Court’s ruling on Defendants’ Motion for Summary Judgment.

STANDARD OF REVIEW
Superior Court Civil Rule 56 mandates the granting of summary judgment

upon a showing by the movant that "there is no genuine issues as to any material

10

