DALZELL, District Judge.
Pro se plaintiff Ashley Adams ("Adams") sues New Castle County Police Officer Eric Selhorst and New Castle County Police Officers Doe 1 and Doe 2 (collectively, "defendant officers" or "defendants") on an array of federal civil rights and pendent state torts claims arising out of her October 4, 2007 arrest for allegedly sending a harassing text message to her neighbor. Adams alleges that the officers used excessive force against her and arrested her without probable cause.
Specifically, Adams brings suit against the defendants for (1) false arrest and false imprisonment, (2) use of excessive force,
The parties have filed cross-motions for summary judgment. For the reasons we discuss in detail below, we will grant defendants' motion for summary judgment, deny plaintiff's partial motion for summary judgment, and enter judgment for the defendants.
On October 1, 2007, Officer Selhorst responded to a call from the residence of Yaw and Ninette Aidoo, which is located at 412 Oregano Court, Bear, Delaware. Def.s' Opening Br. in Sup. of Their Mot. for Sum. J. ("Def. MSJ"), Ex. A at 1. Mr. Aidoo told Officer Selhorst that he had received a harassing text message from cellphone number (302) 393-3525. Id. The message read, "After Ninette (Yaw's wife) goes to sleep you can sneak over and give me what I really need, it has been a long time." Id. Mr. And Mrs. Aidoo believed that the cellphone number might belong to their neighbor, Ashley Adams. Id. The Aidoos were concerned that Adams may have obtained Mr. Aidoo's cellphone number from her employment at Delmarva Power (later learned to be Conectiv Power) because his cellphone number was unlisted. Id. Mrs. Aidoo indicated that she thrice had called the cellphone number from which the text had come from her daughter's cellphone, but no one had answered those calls. Id. The voice in the voicemail message was not familiar to her nor did it identify the speaker. Id. A later search of the Criminal Justice Information System ("CJIS") revealed that Adams had used this cellphone number before in separate police matters. Id.
On October 2, 2007, Officers Selhorst and Mancuso went to Adams's residence to speak with her about the text message. Id. Adams told the officers that she did not know her neighbors' names, but confirmed that her cellphone number was the same as the number identified in Mr. Aidoo's text message. Id. at 1-2. She also confirmed that she had received three unknown telephone calls on her cellphone the
On October 4, 2007, Officer Selhorst contacted Conectiv Power Security and confirmed that Adams worked for Conectiv Power, but found that Mr. Aidoo's cellphone number did not appear on his account at the utility. Id. at 3. Later that same day, Officers Selhorst and Mancuso went to Adams's house to execute the harassment warrant. Id. Adams told the officers she did not want her pets to leave the house and so met Officers Selhorst and Mancuso in her garage.
Adams claims that she suffered injuries, mental anguish, pain, property damage, consequential property damage, shock, intentional severe emotional distress, emotional harm, "horrific and terrifying abuse of household pets causing severe reaction to the impending `home invasion,'" "immediate and delayed nervous systems reactions," public scorn, hatred, ridicule, economic losses, and threats to her life and physical safety as a result of the officers' actions. Compl. ¶¶ 12, 22, 30, 37, 40, 43, 44, 47, 50, 53, 57, 60-66.
Adams filed her Complaint on October 1, 2009. We ordered the defendants to provide the names of Officers Doe 1 and Doe 2, and we granted Adams leave to amend her complaint by November 12, 2010. Adams declined to amend her Complaint to supply the names of the other two officers.
The parties have filed cross-motions for summary judgment.
Plaintiff moves for partial summary judgment on her failure to train, excessive force, malicious prosecution, intentional infliction of emotion distress, false arrest and false imprisonment claims.
Section 1983 of 42 U.S.C.
Defendants argue that plaintiff has failed to allege facts that demonstrate she was falsely arrested or falsely imprisoned. Def. MSJ at 12. Adams claims that her arrest and imprisonment were not based on probable cause. Pl. Answering Br. To Def.'s Opening Br. of Their Mot. for Sum. J. ("Pl. Resp.") at 13. Adams also claims that the officers falsely arrested her because she had "already presented herself to New Castle County Police for warrant processing." Compl. ¶ 14(b). Adams further alleges that the officers did this in violation of the Fourth Amendment and the Delaware Constitution. Both parties have moved for summary judgment on these claims.
To state a Fourth Amendment claim for false arrest, a plaintiff must allege that (1) there was an arrest; and (2) the arrest was made without probable cause. Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.1988). In evaluating a false arrest claim, "[t]he proper inquiry... is not whether the person arrested in fact committed the offense but whether the arresting officers had probable cause to believe the person arrested had committed the offense." Groman, 47 F.3d at 634 (internal punctuation omitted) (quoting Dowling, 855 F.2d at 141). And "where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest." Id. at 636 (citing Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir.1988)).
"An arrest was made with probable cause if `at the moment the arrest was made ... the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the suspect] had committed or was committing an offense.'" Napier, 407 Fed.Appx. at 583 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Probable cause is an objective inquiry—"an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).
At the time of Adams's arrest, the officers knew that (1) a harassing text message had been sent from her telephone number to Mr. Aidoo's cellphone, (2) Adams had received three calls on the same night that Mrs. Aidoo had called Adams's number three times from her daughter's cellphone, and (3) a search of CJIS confirmed that Adams had used this specific cellphone number in a separate police matter. Def. MSJ, Ex. A. Notably, Adams confirmed that it was indeed her cellphone number that was listed on the text message that Mr. Aidoo received. Id.
Adams provides the warrant for her arrest as evidence that Officer Selhorst "knowingly and deliberately or with a reckless disregard for the truth, made false statements, misstatements or omissions, knowingly and deliberately and with a reckless disregard for the truth in his affidavit ... that created a falsehood in applying for the warrant, relied entirely on Aidoos statement, who fabricated the text message, performing no independent investigation, depriving Plaintiff of her constitutional rights while acting under color of law." Pl. Resp. at 13, Ex. I. But the warrant simply restated the evidence the police gathered and memorialized in the
Adams also claims that the officers should have subpoenaed telephone records and independently investigated whether the text message had come from her cellphone. Adams argues that Selhorst knowingly and deliberately disregarded the truth in failing to conduct an independent investigation. Pl. Resp. at 13. But we can swiftly dispatch this argument. Police officers are not required to
Wilson v. Russo, 212 F.3d 781, 792 n. 11 (3d Cir.2000) (internal quotation marks omitted). Thus, defendants had probable cause to arrest Adams.
There is, however, an unusual twist here and that is that Adams had already turned herself in earlier on the day of her arrest. Thus, the warrant had already been executed when the officers came to arrest her. Defendants argue that Adams cannot establish a clearly defined constitutional right, and that, even if she can, they are entitled to qualified immunity.
Donaldson v. Mugavero, 126 Fed.Appx. 63 (3d Cir.2005), through a non-precedential opinion, supplies a useful guide for dealing with Adams's odd case. There, our Court of Appeals granted qualified immunity to a parole officer who arrested the plaintiff without realizing that his conviction had been vacated. Plaintiff Donaldson was convicted of possession of a controlled substance by the Court of Common Pleas of Lehigh County, Pennsylvania, in 2000, and released on parole in 2001. Donaldson had also appealed his conviction to the Pennsylvania Superior Court. The Superior Court decided that his pretrial suppression motion had been wrongly denied, and vacated his conviction, ordering a new trial. The Lehigh County District Attorney's Office appealed and filed a petition for allocatur to the Supreme Court of Pennsylvania. Id. at 64.
In 2002, the Supreme Court of Pennsylvania denied the petition. Despite the Supreme Court's opinion, the original remand for a new trial nevertheless remained, and Donaldson's attorney advised him to continue to report to his parole officer, Scott Mugavero, until the charges were declared nolle prosequi. The charges were declared nolle prosequi in September of 2002. But Mugavero was never informed that the charges had been officially vacated, and thus when he learned that Donaldson was working outside the state he submitted a Delinquency Request Form to the Parole Board. The Parole Board issued a warrant on September 19, 2002 and that same day Mugavero arrested Donaldson. When Donaldson's lawyer learned that her client had been arrested and incarcerated, she notified Mugavero that the charges had been declared nolle prosequi. Mugavero immediately sent a release order to the Lehigh County Prison, and it released Donaldson. Shortly thereafter, Donaldson
Mugavero conceded that because there were no active charges he had deprived Donaldson of his Fourth Amendment right to be free from an unlawful seizure. He argued that, despite this, he still had qualified immunity because he had never been informed of the Superior Court's final disposition of Donaldson's case. Id. at 65. Ultimately, our Court of Appeals found that because Donaldson's defense attorney, the District Attorney, and the Clerk of Court had never alerted Mugavero to the final disposition of the case, Mugavero's mistaken belief that he was authorized to arrest Donaldson was reasonable and that he was therefore entitled to qualified immunity. Donaldson, 126 Fed.App'x. at 66.
Here, Judge Kinney signed the warrant for Adams's arrest on October 2, 2007. Adams turned herself in on the afternoon of October 4, 2007. That evening, Officer Selhorst returned to Adams's residence to serve the warrant without knowing that Adams had already surrendered. After Selhorst arrested Adams, she informed him that she had already been down to the station and that the warrant had been executed. Selhorst checked with CJIS from his vehicle and learned that Adams had indeed been arraigned, given a $500 unsecured bail and a no contact order with Aidoo, and had been released. Def. MSJ, Ex. A at 4. Selhorst immediately uncuffed Adams and left. Id. at 3.
To be sure, the Supreme Court has held that state officials can violate clearly established federal law even when the facts are novel. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In order for a federally protected right to be "clearly established" for the purpose of a qualified immunity inquiry, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Selhorst clearly understood that arresting Adams after her arrest warrant had already been executed was not proper. He made a negligent mistake,
Because there was no longer a valid warrant out for Adams's arrest when Officer Selhorst handcuffed her, Officer Selhorst violated Adams's clearly established Fourth Amendment right to be free from unlawful seizures. But unlike Donaldson—where no one informed the parole officer that the vacation of Donaldson's conviction had been made official (although he may have also had access to a database where that information was readily available)—here Selhorst had the information at his fingertips that Adams's warrant had already been executed.
The Supreme Court instructs that "[t]he qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v.
With regard to the reasonableness standard, our Court of Appeals found that "[t]he evaluation of objective reasonableness is based upon the information possessed by the officer at the time of the illegal conduct." Donaldson, 126 Fed. App'x. at 65. And our Court of Appeals has generally extended immunity to an officer who makes an arrest based on an objectively reasonable belief that there is a valid warrant. Berg v. County of Allegheny, 219 F.3d 261, 273 (3d Cir.2000). But an apparently valid warrant does not render an officer immune from suit if his reliance on it is unreasonable in light of the relevant circumstances. Id. Such circumstances include "other information that the officer possesses or to which he has reasonable access." Id.
In his police report, Selhorst wrote, "[a]fter ashley [sic] was placed into custody she stated she had responded to headquarters earlier in the day and turned herself in. Writer confirmed this through a CJIS check and immediately released her from custody." Def. MSJ, Ex. A at 3. Because the information that Adams had already turned herself in was easily accessible to Selhorst—he could have checked whether she had turned herself in before he handcuffed her—we must determine whether Adams's arrest was unreasonable in light of the relevant circumstances.
This presents a close question. Officer Selhorst had "reasonable access" to the information that Adams had already turned herself in. But given that it was only a matter of hours since she had done so, it was also not out of the bounds of reason for the officer to assume that Adams had not so soon surrendered. Furthermore, there can be no dispute that Officer Selhorst acted reasonably as soon as Adams told him that she had already turned herself in, rendering this Fourth Amendment violation de minimis in fact: Adams's pets were not let loose, she never left her garage, and she could only have been "in custody" (in handcuffs) for a matter of minutes at most.
We will grant defendants' motion for summary judgment on the false arrest and false imprisonment claims and deny Adams's motion for summary judgment on these claims.
Defendants argue that the facts do not support a finding that they abused criminal process as to Adams. Adams claims that the officers abused the criminal process in arresting her and forcing her to appear multiple times in court without ever prosecuting the case. "In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law." Napier v. City of New Castle, 407 Fed.Appx. 578, 582 (3d Cir. 2010) (internal quotation marks omitted). If the initial filing of criminal charges and her arrest were improper, then the appropriate claim would be malicious prosecution, not abuse of process. Id. at 582-83.
Adams presents no evidence, nor alleges any facts, that suggest that Officer Selhorst prosecuted her for any reason other than the one the law intended. And it would not have been Officer Selhorst who chose to abuse the criminal process, but rather the prosecuting attorney. It is therefore a legal impossibility that Officer Selhorst would be liable for violating Adams's rights on this claim. Thus, we will grant defendants' motion for summary judgment on her abuse of process claim.
Adams claims that the defendants used excessive force against her in violation of her Fourth, Eighth, and Fourteenth Amendment rights. Both parties move for summary judgment on this claim.
With regard to Adams's request for relief pursuant to the Fourteenth Amendment, the Supreme Court has held that where "a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotation marks omitted). Here, the Fourth Amendment provides the "explicit textual source of constitutional protection" against an officer's use of excessive force. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that all claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and not under a "substantive due process" approach). The Fourth Amendment—and not "a generalized notion of substantive due process"—provides the appropriate framework for analyzing Adams's claims. Accordingly, we need not analyze this claim under the Fourteenth Amendment.
With regard to Adams's claim of excessive force under the Eighth Amendment, excessive force claims arising out of an arrest are also analyzed only under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Brown v. Rinehart, 325 Fed.Appx. 47, 50 n. 1 (3d Cir.2009). The Eighth Amendment standard applies after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865; Brown, 325 Fed.Appx. at 50 n. 1. Thus, we will not analyze Adams's excessive force and cruel and unusual punishment claims under the Eighth Amendment.
The use of excessive force is itself an unlawful "seizure" under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104
In evaluating reasonableness, a court must take into consideration the fact that "police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. Thus, the court should not apply "the 20/20 vision of hindsight," but should instead consider the "perspective of a reasonable officer on the scene." Id. at 396, 109 S.Ct. 1865.
Officer Selhorst handcuffed Adams in connection with what he believed was a valid arrest warrant. As soon as Adams informed him that she had already turned herself in, and he confirmed that what she said was true, he removed the handcuffs. Def. MSJ, Ex. A at 3. Adams alleges that excessive force was used against her, but does not present any evidence of it.
Adams claims that the officers maliciously prosecuted her. Both parties move for summary judgment on this claim.
"To prevail on a malicious prosecution claim under [§] 1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding." McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir.2009) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). To show the requisite malice, a plaintiff must show that the criminal proceedings were initiated for some purpose other than bringing an offender to justice. McKenna v. City of Phila., No. 07-110, 2008 WL 4450223, at *12
Because we have already found that the officers reasonably believed they had probable cause to execute a warrant against Adams, her claim of malicious prosecution cannot stand. But even if the officers did not have probable cause, there is no evidence in the record that the New Castle County officers initiated anything against Adams for some purpose other than bringing an offender to justice. Adams claims that because Selhorst did not subpoena telephone records and caused at least six trial continuances, this constitutes evidence of Selhorst's malice. But as we noted above, Selhorst was not required to subpoena telephone records to have probable cause, and it was the prosecuting attorney, not Selhorst, who moved for any continuances.
Thus, Adams has failed to allege a malicious prosecution claim. We will deny plaintiff's motion for summary judgment on this claim, and grant defendants' motion for summary judgment with regard to malicious prosecution.
To establish a selective-enforcement claim, a plaintiff must demonstrate (1) that she was treated differently from other similarly situated individuals, and (2) "that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor ... or to prevent the exercise of a fundamental right." Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.2005) (internal quotation marks and punctuation omitted).
Adams does not present any evidence or allege any facts that would lead us to conclude that she was singled out from other individuals because of her race, religion or any other arbitrary factor. There is also no evidence that the police officers were attempting to prevent her from exercising some fundamental right. We will grant defendants' motion for summary judgment on this claim.
Adams claims that defendants failed to train their employees adequately in the proper investigation of a crime, such as to determine if her warrant had already been processed, and for establishing and maintaining customs, policies, practices and procedures that failed to train police officers in the investigation of crimes prior to issuing a warrant. She also claims that Officer Selhorst refused to allow her to file a police complaint against her neighbors because the police department allegedly does not allow cross-complaints. Compl. ¶ 18. Defendants argue in their motion for summary judgment that this failure to train claim must fail because Adams has not named New Castle County among the defendants. Def. MSJ at 21. Plaintiff moves for summary judgment on this claim as well. Pl. MSJ at 14.
A § 1983 complaint against a municipality must allege (1) the existence of a custom or policy of the municipality which is of such long standing as to have the force of law, and (2) that one of the municipality's employees violated the plaintiff's civil rights while acting pursuant to this custom or policy. See Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Supreme Court has held that municipal liability under § 1983 only attaches when the "execution of a government's
Once a § 1983 plaintiff identifies a municipal policy or custom, she must "demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Bryan County, 520 U.S. at 404, 117 S.Ct. 1382 (emphasis in original). If the policy or custom does not facially violate federal law, causation can be established only by "demonstrat[ing] that the municipal action was taken with `deliberate indifference' as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice." Id. at 407, 117 S.Ct. 1382 (citations omitted); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In her response to defendants' motion for summary judgment and in her own motion for summary judgment, Adams alleges for the first time that the New Castle County Police Department ("NCCPD"), rather than Officer Selhorst, violated her constitutional rights. Pl. MSJ at 14; Pl. Resp. at 21-22.
And a § 1983 claim for inadequate training exists "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. The failure to train must reflect a "deliberate" or "conscious" choice and the deficiency "must be closely related to the ultimate injury." Id. at 391, 109 S.Ct. 1197. Failure to train only becomes "deliberate" where "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390, 109 S.Ct. 1197.
Failure to train municipal employees can be considered deliberate indifference only where the failure has caused a pattern of violations. See Bryan County, 520 U.S. at 408-09, 117 S.Ct. 1382. True, it is possible to maintain a claim of failure to train without demonstrating such a pattern, but Bryan County stressed that the burden on the plaintiff in such a case is high:
Id. at 409, 117 S.Ct. 1382. City of Canton noted that an example of deliberate indifference to an obvious risk would be arming officers without training them "in the constitutional limitations on the use of deadly force." City of Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197.
Adams argues in her Complaint that the New Castle County Police did not allow her to file claims against the Aidoos, but does not explain how this may have injured her or what the offending custom or policy was. Pl. Resp. at 21-22. Thus, we find that even if Adams had included New Castle County among the defendants in her complaint, she cannot prove the requisite link between the County's and Selhorst's actions to support a Monell claim. Viewing the evidence in the light most favorable to Adams, we will grant defendants' motion for summary judgment on plaintiff's Monell claim against Officer Selhorst, and deny Adams's motion for summary judgment on this claim.
Adams has failed to introduce a scintilla of evidence that a conspiracy existed between Officer Selhorst and the unnamed officers to violate her civil rights. Plaintiff, as the nonmoving party, is entitled to have all reasonable inferences drawn in her favor at the summary judgement stage. In the absence of any evidence that there was a meeting of the minds to achieve the alleged conspiracy's objectives, however, she is not entitled to an inference that her bare allegations create an issue of material fact for trial. Lincoln v. Hanshaw, 375 Fed.Appx. 185, 190 (3d Cir.2010). Thus, we will grant defendants' motion for summary judgment on this claim.
Adams also claims in her response to defendants' motion for summary judgment that the two unnamed officers failed to intervene when they saw Selhorst "threaten and abuse Plaintiff." Pl. Resp. at 22. Defendants argue that Adams has failed to carry her burden to prove their failure to intervene.
To establish a Fourth Amendment violation for failure to intervene, courts have held that a police officer has a duty to take reasonable steps to protect a victim from another officer's use of excessive force, even if the excessive force is employed by a superior. "If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983." Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir.2002) (internal quotation marks omitted). But an officer is only liable if there is a realistic and reasonable opportunity to intervene. Id.
Here, defendants were not aware that they had violated Adams's Fourth Amendment right to be free from unlawful seizures until they checked the CJIS, and as soon as they learned that she had already turned herself in, they released her. There was no time for anyone to intervene
Finally, because we have already found that Adams has not shown any evidence of conspiracy, her claim that defendants failed to prevent a conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1986 must fail as well.
Adams also asserts common law tort claims against defendants based on slander and defamation, intentional infliction of emotional distress, assault and battery, and trespass. The defendants argue that they are immune from liability under the Delaware Tort Claims Act. Del. Code. Ann. Tit. 10 § 4011 (2005). The Delaware Tort Claims Act states that "[e]xcept as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages."
But this provision does not apply here because Adams cannot establish that the officers' acts "were not within the scope of employment" or "were performed with wanton negligence or willful and malicious intent." In arresting Adams, the officers were palpably acting within the scope of their official duties. Moreover, viewing the facts in the light most favorable to Adams, the officers' conduct may have been overzealous but it was not malicious or willful. Under Delaware law, conduct is "wanton" only where it reflects a "conscious indifference" or an "I-don't-care attitude." Foster v. Shropshire, 375 A.2d 458, 461 (Del.1977) (internal quotation marks and citation omitted). As a matter of law, no such conduct can reasonably be inferred here. We therefore grant defendants' motion for summary judgment as to Adams's common law claims. And even if our grant of immunity under the Delaware Tort Claims Act were deemed improvident, as we explain below, Adams has failed to show that she should succeed on any of her common law claims.
Adams claims that the officers slandered and defamed her "by presenting false statements to obtain a warrant on Plaintiff." Compl. ¶ 39. The Delaware courts have established five elements that a plaintiff must plead to form a claim for defamation, which incorporates both libel
Adams's claim cannot succeed because she fails to allege defendants' publication of these statements to anyone other than the Magistrate Judge who signed the warrant. "When allegedly defamatory statements are made to a magistrate or other judicial officer, for the purpose of initiating a criminal prosecution, they are absolutely privileged." Boulden v. Turner, No. 04C-10-31, 2007 WL 3378662, at *4 (Del.Super. Apr. 12, 2007). Boulden also noted that "[a]n absolute privilege affords a complete defense irrespective of accuracy or malice." Id. (quoting Lengle v. Dukes, 1982 Del.Super. LEXIS 757).
Because defendants only made their statements to a Magistrate Judge, they had an absolute privilege to make them. Thus, we will grant defendants' motion for summary judgment on Adams's slander/defamation claim.
Both parties have moved for summary judgment on Adams's intentional infliction of emotional distress claim. Under Delaware law, liability for intentional infliction of emotional distress "is only found when the alleged conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." O'Leary v. Telecom Resources Service, LLC, No. 10C-03-108, 2011 WL 379300, at *6 (Del.Super.Ct. Jan. 14, 2011). "The case [must be] one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Mattern v. Hudson, 532 A.2d 85, 86 (Del.Super.Ct.1987).
There is no record evidence that Officer Selhorst engaged in any conduct that was so severe that a reasonable person could not be expected to endure it. Def. MSJ, Ex. A. Adams was never subjected to extreme or outrageous conduct. Thus, she has failed to make out a prima facie case of intentional infliction of emotional distress. We will grant defendants' motion for summary judgment on this claim and deny Adams's motion for summary judgment on it.
Delaware law defines assault and battery as "the intentional, unpermitted contact upon the person of another which is harmful or offensive." Lewis v. Foster, No. 04-1350, 2009 WL 3074683, at *7 (D.Del. Sept. 25, 2009). Because we have found that the force used against Adams was reasonable, and because police officers are allowed to use reasonable force in arresting a suspect, we would have granted defendants' motion for summary judgment on this claim regardless of the § 1983 niceties canvassed above.
To assert a viable intentional trespass claim, a plaintiff in Delaware must show that (1) the plaintiff is in lawful
In her January 6, 2011 response to defendant's motion, Adams requested the opportunity to amend her complaint. A district court should not dismiss a pro se complaint without allowing the plaintiff an opportunity to amend her complaint unless an amendment would be inequitable or futile. Ray v. First Nat. Bank of Omaha, No. 10-3582, 413 Fed.Appx. 427, at 430, 2011 WL 488741, at *2 (3d Cir. Feb. 11, 2011).
Here, there is no amendment Adams could make to her Complaint that would make her state tort claims viable because the defendants are police officers. Similarly, it would be futile for Adams to amend her false arrest, false imprisonment, conspiracy, and failure to prevent conspiracy claims because Officer Selhorst (and the unnamed officers) are entitled to qualified immunity. It would be futile for Adams to amend her abuse of process and malicious prosecution claims against Officer Selhorst because he was not responsible for prosecuting her. Finally, because Adams was not incarcerated when the alleged events happened, it would also be futile for her to amend any claim of cruel and unusual punishment.
As to Adams's claims of excessive force, selective enforcement, and failure to train, she months ago waived any further opportunity to prolong this exercise. See note 5, above. We therefore conclude that it would be inequitable to the defendants to allow this tempest to continue any longer.
AND NOW, this 18th day of March, 2011, upon consideration of defendants' motion for summary judgment (docket entry # 63), plaintiff's response thereto (docket entry # 75), defendants' reply (docket entry # 77), plaintiff's motion for partial summary judgment (docket entry # 64), defendants' response (docket entry # 72), and plaintiff's reply (docket entry # 78), and in accordance with the foregoing Memorandum, it is hereby ORDERED that:
1. Defendants' motion for summary judgment (docket entry # 63) is GRANTED;
2. Plaintiff's partial motion for summary judgment (docket entry # 64) is DENIED;
3. All of plaintiff's claims are DISMISSED WITH PREJUDICE; and
4. The Clerk of Court shall CLOSE this case statistically.
In addition, Adams claims violations of Article I, §§ 7 and 11 of the Delaware Constitution, which entitle her to a speedy trial and to be free from "cruel punishment." Adams refers to the cited sections of the Delaware Constitution in her Complaint, but does not cite any case in support of her arguments regarding her Delaware Constitutional claims in her response to defendants' motion for summary judgment. Thus, we will grant defendants' motion for summary judgment with regard to Adams's Delaware Constitutional claims. Finally, Adams also cites "Del. C. 3701" in her complaint, but we are not aware of this Delaware law, and in any event, she does not present any arguments in support of defendants' alleged violation of this section of the code, and we will grant defendants' motion with regard to it.
