Jordan v. Town of Milton et al
MEMORANDUM AND ORDER GRANTING 37 First MOTION for Summary Judgment filed by Ronda Abraham, Town of Milton, Clifford M. Newlands, Stephen B. Boone, William E. Phillips, DENYING 44 Letter request for Oral Argument; DENYING 46 Request for Oral Argument, filed by Ronda Abraham, Town of Milton, Clifford M. Newlands, Stephen B. Boone, William E. Phillips. Signed by Chief Judge Gregory M. Sleet on 1/3/2013. (asw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SHERRY ANN JORDAN,
THE TOWN OF MILTON,
WILLIAM E. PHILLIPS,
STEPHEN P. BOONE, and
Civil Action No. 11-00514-GMS
The plaintiff, Sherry Ann Jordan ("Jordan"), filed this lawsuit against the Town of
Milton, the Mayor of the Town of Milton, Clifford Newlands ("Newlands"), the Chief of Police
of the Town of Milton, William Phillips ("Phillips"), a detective in the Milton Police
Department, Stephen Boone ("Boone"), and a councilwoman for the Town of Milton, Ronda
Abraham ("Abraham") on June 10, 2011. (D.I. 1.) The Complaint raises a number of claims
relating to an alleged dispute between Jordan and Phillips, Jordan's 2010 arrest for theft, and her
eventual dismissal from her clerical position with the Town of Milton.
asserts five separate claims under 42 U.S.C. § 1983 for (1) her warrantless arrest, (2) her arrest
for crimes that occurred outside the geographical limits of the Town of Milton, (3) the Town of
Milton's abuse of authority to accomplish an administrative task, (4) her loss of employment as a
result of asserting Fifth Amendment protection, and (5) procedural deficiencies at her pretermination hearing.
Jordan also alleges violations of Delaware's
Whistle blowers' Protection Act (the "WP A"), 1 wrongful discharge in violation of the implied
covenant of good faith and fair dealing, civil conspiracy, libel, and false light. (!d.
For the reasons that follow, the court will grant the defendants' motion for summary judgment
with respect to all claims except: (1) Jordan's Whistleblowers' Protection Act claim against the
Town of Milton, (2) her § 1983 claim for deprivation of procedural due process rights against
Newlands, Abraham, and the Town of Milton, and (3) her § 1983 claim for loss of
employment/arrest as a result of asserting Fifth Amendment rights.
Jordan worked for the Town of Milton from January 21, 2003 until December 2, 2010.
8, 38.) Between January 1993 and October 2009, she was employed by the Town of
Milton Police Department in a clerical position, under the supervision of Phillips. (D.I. 1 at~ 8.)
In January of 2009, Phillips accused Jordan of insubordination and suspended her with a
recommendation that her employment be terminated. (Id.
12.) That recommendation was
eventually withdrawn. (!d. at ~ 13.)
In the summer of 2009, the Town of Milton attempted to terminate Phillips from his
position as Chief of Police. Though these efforts were ultimately unsuccessful, Jordan testified
against Phillips at his pre-termination hearing. (!d.
14--15.) On October 9, 2009, in order to
protect her from retaliation, the Town of Milton transferred Jordan from her position with the
19 Del. C. § 1701 et. seq.
Police Department to another clerical position in the town's administrative office. 2 (!d. at~ 16.)
On August 16, 2010, Catherine Jacobi ("Jacobi"), a clerk in the Police Department who
was responsible for purchasing office supplies, reported irregularities with the receipt of
incentive checks from Staples, the office supply chain. (!d.
22.) Under the Staples incentive
program, customers earn store credit for purchases and the return of ink jet printer cartridges for
recycling. (D.I. 40 at 3.) Each month, Staples mails out a check for the amount of store credit
earned that period, and these checks can then be used to make purchases online, over the phone,
or at a physical Staples location. (!d.) At least as early as November 2009, Jacobi noted that,
although the Police Department was enrolled in the program, it was no longer receiving any
incentive checks. (!d.)
According to the defendants, Jacobi spoke to several Staples representatives on August 4,
2010 regarding this issue and learned that Jordan was listed as the sole contact on the account.
(!d. at 3--4.) Jacobi advised Staples that Jordan no longer worked for the Police Department and
requested that the account be changed to reflect her own contact information. (!d. at 4.)
However, when Jacobi attempted to log in to the account's page on the Staple's website several
days later, she again encountered problems. (!d.) Jacobi then learned from another Staples
representative that Jordan had called after the attempted changes and placed the account back
under her own name and address. (!d.)
After Jacobi reported her findings, Boone began an investigation into Jordan's use of the
The defendants maintain that Phillips himself actually recommended the transfer of Jordan to a parallel
position in Town Hall to avoid any allegations of retaliation. (D.I. 40 at 2.)
Staples account. 3 (D.I. 1 at~ 22.) On September 28, 2010, Boone attempted to question Jordan
at the Police Department. (Id.
23.) After Jordan refused to make a statement and asserted
her Fifth Amendment right against self-incrimination, Boone told her that she was free to leave
and escorted her to the door. (!d.
26-27.) Boone then spoke with Phillips, who instructed
Boone to offer Jordan the opportunity to resign rather than being arrested. (!d.
refused to resign, and Boone arrested her for seven counts of misdemeanor theft. (!d. at
The Police Department subsequently issued a press release stating:
On September 28, 2010, Milton Police arrested Sherry Jordan (37) of Millsboro
for seven counts of Theft (M).
Milton Police investigated an internal theft where approximately $187.00 was
stolen on seven different occasions in 2009 and 2012. Milton Police developed
Jordan as a suspect and obtained warrants for Jordan.
Jordan was arraigned and released on $700.00 unsecured bond pending a later
(D.I. 40-11, Ex. J.)
Newland immediately placed Jordan on suspensiOn with a recommendation for
termination, and the Town Council conducted a pre-termination hearing on November 23, 2009.
Abraham was appointed as the hearing officer, and, though all
councilmembers were present for the proceeding, the termination decision was left to Abraham
32, 36.) On December 2, 2010, Abraham issued a report terminating Jordan's
employment for misconduct and insubordination. (!d.
STANDARD OF REVIEW
Jordan claims that this investigation occurred "[a]t the instruction of Chief Phillips and under Chief
Phillips' supervision." (D.l. 1 at~ 22.) The defendants, on the other hand, contend that Phillips referred the matter
to Boone but told the detective that he did not wish to participate in the investigation. (D.I. 40 at 4.)
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). "Facts that could affect the outcome are 'material facts,' and a dispute about a
material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a
verdict for the non-moving party. Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir. 2011).
The movant bears the initial burden of "informing the district court of the basis for its
motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once this initial requirement is met, the burden then shifts to the non-moving party to
demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-86 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d
458, 460-61 (3d Cir. 1989). In determining whether a genuine issue of material fact exists, the
court views the evidence in the light most favorable to the party opposing summary judgment
and draws all reasonable interests in that party's favor. See Scott v. Harris, 550 U.S. 372, 378
(2007); Wishldn v. Potter,476 F.3d 180, 184 (3d Cir. 2007).
Jordan's Complaint contains ten counts, including five separate claims for alleged
violations of 42 U.S.C. § 1983.4 The court notes that Jordan has made no attempt to clarify
which claims have been brought against which defendants. Accordingly, the court will assume
The Complaint contains two claims labeled as "Count V." (D.I. I at~~ 71-87.) For the sake of clarity,
the court will follow the defendant's proposed approach and refer to the second Count V-a claim under Delaware's
Whistleblowers' Protection Act-as "Count V*."
that Jordan intends to bring each cause of action against all five defendants. The court addresses
each claim in turn.
Section 1983 Claims (Counts I-V)
1. Warrantless Arrest (Count I)
Jordan first purports to bring a claim under 42 U.S.C. § 1983 in connection with her
arguably warrantless arrest. (D.I. 1
41-49.) Jordan contends that Boone placed her under
arrest before obtaining a warrant despite the fact that none of the alleged thefts occurred in his
presence. (D.I. 41 at 6-7.) The defendants maintain that, after Jordan refused to resign, Boone
lawfully took her into custody on reasonable suspicion of theft, obtained a warrant within the
hour, and only then placed her under arrest. (D.I. 40 at 5-6.) Both parties devote substantial
portions of their briefs to a dispute over whether Boone's initial act of restraint was a mere
detention under Delaware law or was, in fact, a full arrest. Unfortunately, both the defendants
_and Jordan seem to miss the fundamental legal question: did the initial restraint of Jordan deprive
-her of a right protected by § 1983? As a matter of law, the court finds the answer to that question
The court's analysis of Jordan's § 1983 claims necessarily begins from the statutory
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
"Section 1983 does not, by its own terms, create substantive rights; it
provides only remedies for deprivations of rights established elsewhere in the Constitution or
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); see also Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979). As the United States Supreme Court has made clear,
"in any § 1983 action the initial inquiry must focus on whether the two essential elements to a §
1983 action are present: (1) whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or laws of the United States." Parrat v.
Taylor, 451 U.S. 527, 535 (1981) (emphasis added), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986). Put simply, it is black-letter law that a plaintiff cannot bring a
claim under § 1983 for the deprivation of a right protected solely by state law or municipal
Apparently disregarding this fact, Jordan contends that her arrest was improper under 11
Del. C. § 1904(a), which provides that "[a]n arrest by a peace officer without a warrant for a
misdemeanor is lawful whenever the officer has reasonable ground to believe that the person to
be arrested has committed a misdemeanor: (1) In the officer's presence; .... " (D.I. 41 at 8.) In
Jordan's view, her arrest violated Delaware law because the alleged misdemeanor theft did not
occur in Boone's presence. (!d.)
Rather than argue that Boone was entitled to conduct a
warrantless arrest under Delaware law, the defendants maintain that Boone merely "detained"
This point is well-established in both case law and commentary on the subject. See, e.g., Baker v.
McCol/an, 443 U.S. 137, 146--47 (1979); McMullen v. Maple Shade Twp., 643 F.3d 96, 100 n.5 (3d Cir. 2011);
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000); Kelly v. Cnty. of Montgomery, No. 08-01660, 2008 WL
3408123, at *8 (E.D. Pa. Aug. 8, 2008); Eichelman v. Lancaster Cnty., 510 F. Supp. 2d 377, 386 (E.D. Pa. 2007);
Popow v. City of Margate, 476 F. Supp. 1237, 1243 n.3 (D.N.J. 1979); Ivan E. Bodensteiner & Rosalie Berger
Levinson, State & Local Gov 't Civil Rights Liability § 1.1 (2d ed. 2012); Martin A Schwartz, Sword & Shield: A
Practical Approach to Section 1983 Litigation § l.IV (2006). As such, the court is perplexed by the parties'
apparently shared belief that alleged violations of the Delaware Code and Town of Milton ordinances might give
rise to § 1983 claims.
Jordan while the warrant was being prepared pursuant to 11 Del. C. § 1902. (D.I. 40 at 9-10.)
Section 1902 provides that, under certain circumstances, an officer may stop a person that he
reasonably suspects has committed a crime, ask some limited questions, and potentially detain
the individual for up to two hours. 11 Del. C. § 1902. Predictably, the parties sharply disagree
as to the scope of detention permitted under § 1902.
Unfortunately, the central question here seems to have escaped both parties, as neither so
much as mentions a potential violation of Jordan's federal rights. As discussed above, the court
must focus its § 1983 analysis on whether Jordan's arrest deprived her of "rights, privileges, or
immunities secured by the Constitution or laws of the United States." Parrat, 451 U.S. at 535.
The question of whether her supposed arrest was proper under Delaware law plays little role in
that inquiry. See McMullen v. Maple Shade Twp., 643 F.3d 96, 100 n.5 (3d Cir. 2011) ("Many
states have enacted laws that afford individuals protections beyond those found in the United
States Constitution. But arrests made in violation of these state laws are not, in
themselves, actionable under§ 1983."); US. v. Laville, 480 F.3d 187, 192 (3d Cir. 2007) ("[TJhe
validity of an arrest under state law must never be confused or conflated with the Fourth
Amendment concept of reasonableness, and ... the validity of an arrest under state law is at most
a factor that a court may consider in assessing the broader question of probable cause."). While
Jordan does not point to any violations of federal law, the court will presume that she intends to
challenge the propriety of her arrest under the Fourth Amendment.
The Fourth Amendment prohibits "unreasonable" seizures.
U.S. Const. amend. IV.
While police arrests are "seizures" within the meaning of the Fourth Amendment, Terry v. Ohio,
392 U.S. 1, 16 (1968), it is well-settled that "when an officer has probable cause to believe a
person committed even a minor cnme in his presence . . . [t]he arrest is constitutionally
reasonable," Virginia v. Moore, 553 U.S. 164, 171 (2008). Likewise, a warrantless felony arrest
based upon probable cause presents no Constitutional problem. United States v. Watson, 423,
U.S. 411, 418 (1976). It is less clear, however, whether the Fourth Amendment ever permits an
officer to make an arrest for a misdemeanor occurring outside his presence. In Atwater v. City of
Lago Vista, 532 U.S. 318 (2001), the Supreme Court stated in a footnote, "We need not, and thus
do not, speculate whether the Fourth Amendment entails an 'in the presence' requirement for
purposes of misdemeanor arrests." 532 U.S. at 341 n.ll. The footnote then quoted an earlier
dissent from Justice White, claiming that "the requirement that a misdemeanor must have
occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth
Amendment." Welsh v. Wisconsin, 466 U.S. 740, 756 (1984) (White, J., dissenting).
At least one court within the Third Circuit has examined the commentary addressing this
footnote and concluded that there is no "presence"
for warrantless misdemeanor
arrests. Millbourne v. Baker, No. 11-cv-1866-JD, 2012 WL-1889148, at *9 (E.D. Pa. May 23,
2012) (citing 3 Wayne R. Lafave, Search & Seizure§ 5.1 (4th ed. 2012); Thomas Y. Davies, The
Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and
Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239,
248-49 (2002)). Additionally, the Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh Circuit,
and Ninth Circuit, have found that the Fourth Amendment does not prohibit a warrantless arrest
for a misdemeanor occurring outside an officer's presence when that officer has probable cause.
See, e.g., Woods v. City of Chi., 234 F.3d 979, 995 (7th Cir. 2000) ("[T]he Fourth Amendment
does not require a warrant for a misdemeanor arrest like the one effected here."); Pyles v. Raisor,
60 F.3d 1211, 1215 (6th Cir. 1995) ("Plainly, Raisor cannot be liable under § 1983 unless he
violated one of Pyles' federal constitutional rights. Pyles' rights under Kentucky law, including
her right as an alleged misdemeanant to be arrested only when the misdemeanor is committed in
the presence of the arresting officer, are not grounded in the federal Constitution and will not
support a § 1983 claim."); Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.
1991) ("The United States Constitution does not require a warrant for misdemeanors not
occurring in the presence ofthe arresting officer."); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.
1990) ("The requirement that a misdemeanor must have occurred in the officer's presence to
justify a warrantless arrest is not grounded in the Fourth Amendment."); Street v. Surdyka, 492
F.2d 368, 372 (4th Cir. 1974) ("We do not think the fourth amendment should now be interpreted
to prohibit warrantless arrests for misdemeanors committed outside an officer's presence.").
While the Third Circuit does not appear to have addressed this issue, for the reasons articulated in
the above-cited cases, the court d
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