Smyre v. Amaral et al.

Filing 29

REPORT AND RECOMMENDATIONS re 3 MOTION to Dismiss for Failure to State a Claim RE: Motion of Defendant MHM Services, Inc. to Partially Dismiss the Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) filed by MHM Ser vices Inc. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 7/15/2013. Signed by Judge Mary Pat Thynge on 6/28/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KORRIE SMYRE,
Plaintiff,
v.
JASON AMARAL, JOYCE JOHNSON,
LEROY WILLIAMS, AND
MHM SERVICES, INC.,

Defendants.

:
:
:
:
:
:
:
:
:
:
:
:

C. A. No. : 13-387-SLR-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Before the court is a motion, filed by defendant MHM Services, Inc. (“MHM”), to

partially dismiss plaintiff’s amended complaint1 for failing to state a claim upon which
relief can be granted pursuant to FED. R. CIV. P. 12 (b)(6). Specifically, MHM moves for
dismissal of Count VII which alleges respondeat superior liability against MHM for all
claims raised against defendant Jason Amaral (“Amaral”), and Count XIII2 for civil rights
violations as asserted in Count XII against defendant Joyce Johnson (“Johnson”).3
Plaintiff seeks leave to amend the amended complaint to plead a civil rights claim
against MHM.4
For the reasons that follow, the court grants MHM’s motion to partially dismiss

1

D.I. 3.
Incorrectly numbered in the amended complaint as Count XII.
3
D.I. 3 at 2.
4
D.I. 11 at 13.
2

Count XIII of the amended complaint. Therefore, Count XIII, to the extent that it asserts
a claim for respondeat superior against MHM for civil rights violations committed by
Johnson, is dismissed. MHM’s motion to dismiss Count VII of the amended complaint,
to the extent that it asserts respondeat superior liability against MHM for civil rights
violations by Amaral, is also granted. Plaintiff’s request to amend his amended
complaint to assert a civil rights claim against MHM is granted.
II.

BACKGROUND
a.

Procedural History

This action arises from claims by prison inmate Korrie Smyre (“plaintiff”), that he
was sexually abused by a drug treatment counselor during his incarceration at the
Sussex Correctional Institute in Georgetown, Delaware (“SCI”).5 Plaintiff filed his
original complaint on January 24, 2013 in the Superior Court for the State of Delaware,6
which he subsequently amended on February 4, 2013, to assert claims against MHM,
as well as three individually named employees of MHM working as treatment
counselors at SCI.7
As this matter involves claims in which this court has original jurisdiction, MHM
removed the matter pursuant to 28 U.S.C. 1441.8 Removal in this case was proper
because plaintiff’s amended complaint asserts claims pursuant to 42 U.S.C. § 1983
against defendants Amaral, Johnson, and through the doctrine of respondeat superior
against MHM.

5

D.I. 1, Ex. B at ¶ 6.
Id., Ex. A.
7
Id., Ex. B.
8
D.I. 1.
6

2

b.

Relevant Facts
1.

Abuse by Amaral

Because this matter involves a Rule 12(b)(6) motion to dismiss, the properly pled
facts come from the amended complaint.9 For the purposes MHM’s motion, all
reasonably pled facts asserted are assumed true. At all relevant times, plaintiff was
incarcerated with the Delaware Department of Corrections (“DOC”).10 MHM had
contracted with DOC to provide mental health, substance abuse, and sex offender
treatment to Delaware inmates.11 One such service involved the KEY Program, which
provides substance abuse treatment.12 Amaral, Johnson and Leroy Williams
(“Williams”) were employed by MHM as treatment counselors in that program.13
In late 2010, plaintiff applied to the KEY Program, and when accepted, was
transferred to SCI.14 Around January 25, 2011, plaintiff entered Phase I of that
program.15 Amaral was a counselor and/or administrator for Phase III of the Program.16
Plaintiff learned in January 2011 that his foster mother had been diagnosed with
cancer, and sought counseling with Johnson to address his concerns regarding the
diagnosis.17 During their discussion, Amaral entered the office that he shared with
Johnson and observed plaintiff crying.18 He informally offered to provide counseling

9

D.I. 1, Ex. B.
Id. at ¶ 6.
11
Id. at ¶ 7.
12
Id. at ¶ 9.
13
Id. at ¶¶ 10-15.
14
Id. at ¶ 18.
15
Id.
16
Id.
17
Id. at ¶ 19.
18
Id. at ¶ 20.
10

3

services.19 Amaral subsequently learned personal information about plaintiff which he
allegedly used to “gain [his] trust.”20 Plaintiff continued to use Amaral as a counsel
unaware of Amaral’s alleged sinister intentions.21
Although Williams was plaintiff’s primary counselor, Amaral took significant
interest in plaintiff.22 In late January or early February 2011, Amaral began introducing
sexually provocative conversation during their sessions, and invited plaintiff to engage in
sexual activity with him.23 In February 2011, Amaral instructed plaintiff to write a letter
containing sexually provocative language to Amaral,24 and threatened administrative
segregation to ensure plaintiff’s compliance.25 Thereafter, Amaral’s sexually
provocative and suggestive comments intensified, which ultimately resulted in demands
by him for plaintiff to engage in sexual activity.26 The majority of the sexual conduct
occurred in the office used by Johnson, Williams and Amaral when plaintiff and Amaral
were alone.27 According to plaintiff, Amaral “seemed to know where to stand in the
office to avoid being seen by passers by,” which “led [plaintiff] to believe he was not
Amaral’s first victim.”28 Plaintiff’s foster mother died from cancer on March 15, 2011.29
In April 2011, Amaral physically forced himself on plaintiff, and on three separate
occasions touched plaintiff’s penis.30 Amaral would also “rub on” plaintiff’s body, and
19

Id. at ¶ 21.
Id. at ¶ 23.
21
Id. at ¶ 24.
22
Id. at ¶ 28.
23
Id. at ¶ 25.
24
Id. at ¶ 25-26.
25
Id. at ¶ 26.
26
Id. at ¶ 30.
27
Id. at ¶¶ 29-33.
28
Id. at ¶ 33.
29
Id. at ¶ 31.
30
Id. at ¶ 32.
20

4

asked plaintiff to place his penis in Amaral’s mouth; plaintiff refused.31 During this time
Amaral committed numerous inappropriate acts, including showing plaintiff his thong
underwear, claiming he and plaintiff were “friends with benefits,” and forcing plaintiff to
touch his penis on three occasions, and to kiss him on the neck and mouth. Amaral
also provide his phone number so plaintiff could be his “secret sex lover” once plaintiff
was released from prison.32 In May or June 2011, plaintiff, along with 60 other inmates,
was moved from the building in which Amaral’s office was located to a different
building.33
Around this time, Amaral, Williams and mental health counselor “Mr. Mike” met
with MHM supervisor Deneen Smith (“Smith”), who had observed Amaral spending
considerable time with plaintiff.34 While the amended complaint is unclear about this
meeting,35 Smith purportedly instructed that plaintiff was to remain in his new location,
H1, and was not to return to his previous housing in H2, near Amaral’s office.36 Amaral,
however, allegedly had another inmate removed from the KEY Program and had
plaintiff rehoused to an area near Amaral’s office.37 Angered by Amaral’s disregard of
her directive, Smith confronted and informed him that he needed to “keep his relation
with [plaintiff] professional.”38 Smith was released from her employment or fired by
MHM in June 2011.39

31

Id.
Id. at ¶ 34.
33
Id. at ¶ 32.
34
Id. at ¶ 36.
35
Id.
36
Id.
37
Id. at ¶ 37.
38
Id.
39
Id. at ¶ 38.
32

5

On one occasion, Amaral punished plaintiff after he commented about Amaral’s
actions.40 On July 5, 2011, Amaral gave plaintiff a “KEY-Crest Learning Experience
Form” for disrespecting program staff, which restricted plaintiff from television,
telephone, visits, recreation or gym privileges.41 These restrictions were the alleged
“hammer Amaral used to force [plaintiff] to engage in the sexual harassment and
abuse.”42
Around July 12, 2011, plaintiff reported the abuse to Johnson.43 Johnson
purportedly responded that she believed Amaral was sexually abusing an inmate, but
was unaware it was plaintiff.44 Johnson took no action in response to plaintiff’s
allegations.45 Thereafter, Amaral stopped physically touching and sexually molesting
plaintiff, but continued counseling him.46
Plaintiff further alleges that “employees of MHM were aware that the office used
by Amaral had a ‘blind spot,’”47and that “some employees used that office to engage in
sexual relations with inmates in prior years;”48 He further contends “another MHM
employee resigned or was fired in May 2011 for engaging in sexual relations with a
patient-inmate.”49 He also claims employees of MHM and/or employees of DOC
suspected Amaral initiated inappropriate sexual relations with another inmate at SCI,50

40

Id. at ¶ 39.
Id.
42
Id.
43
Id. at ¶ 40.
44
Id.
45
Id.
46
Id. at ¶ 41.
47
Id. at ¶ 93.
48
Id.
49
Id.
50
Id. at ¶ 94.
41

6

and contacted or attempted to contact this inmate after his release.51
In mid-August 2011, plaintiff reported the abuse to Williams.52 Around August 19,
2011, plaintiff met with Sergeants Hubbs, Breedlove and Santini of the DOC regarding
his encounters with Amaral,53 and later with Staff Lieutenant Hickman.54 Allegedly some
or all of those individuals met with the warden and/or deputy warden of SCI.55 Plaintiff
remained out of the Key Program on that day until Amaral’s shift ended later that
afternoon. Thereafter, Plaintiff had no further contact with Amaral.56
Mike Tigue, Esq. of DOC’s Internal Affairs met with plaintiff on August 30, 2011,
and advised he “would talk to Johnson and Williams.”57 Plaintiff was also instructed by
another individual from Internal Affairs not to discuss “this incident with Amaral” with
anyone else, which he interpreted as not filing a grievance.58 Plaintiff did, however, talk
to mental health treatment providers about his experience.59
2.

Plaintiff’s Mental Health

Plaintiff was diagnosed with paranoid schizophrenia in 2008. While at SCI, he
was prescribed Seroquel, Depakote and Risperdal.60 Plaintiff understood his mental
health diagnosis and treatment were included in his medical records.61 While under
counseling, Amaral required plaintiff execute a release to allow him access to plaintiff’s

51

Id.
Id. at ¶ 42.
53
Id. at ¶ 43.
54
Id.
55
Id.
56
Id. at ¶ 44.
57
Id. at ¶ 45.
58
Id. at ¶ 46.
59
Id.
60
Id.
61
Id. at ¶ 22.
52

7

medical and/or mental health records.62
3.

Plaintiff’s Alleged Injuries

As a result of Amaral’s misconduct, plaintiff alleges he suffers from the following:
post-traumatic stress disorder (“PTSD”), including flashbacks of the abuse;
hypertension, which requires medication; a fear of people; aggravation of his preexisting paranoid schizophrenia; depression; a desire not to be touched and to seclude
himself; problems with trust, including mental health professionals; emotional
humiliation; sleeplessness; and loss of enjoyment in hobbies, such as sports, which
require medical and/or psychiatric treatment.63
4.

Plaintiff’s Claims

In his amended complaint, plaintiff alleges fifteen counts against defendants.
Plaintiff asserts the following causes of action against Amaral: Count I - Assault and
Battery;64 Count II - Civil Rights Violation;65 Count III - Intentional Infliction of Emotional
Distress;66 Count IV - Medical Malpractice;67 Count V - Negligent Infliction of Emotional
Distress;68 and Count VI - Invasion of Privacy.69 Plaintiff alleges, in Count VII, that
MHM, by virtue of respondeat superior, is liable for all claims against Amaral.70
He asserts the following causes of action against MHM: Count VIII - Negligent

62

Id.
Id. at ¶ 48.
64
Id. at ¶¶ 49-53.
65
Id. at ¶¶ 54-58.
66
Id. at ¶¶ 59-64.
67
Id. at ¶¶ 65-75.
68
Id. at ¶¶ 76-80.
69
Id. at ¶¶ 81-84.
70
Id. at ¶¶ 85-90.
63

8

Supervision/Retention71 and Count IX - Negligence.72
As against Johnson, plaintiff claims: Count X - Negligence;73 Count XI Intentional Infliction of Emotional Distress74 and Count XII - Civil Rights Violation.75 In
Count XIII76, he alleges that MHM, as the employer, is liable for Johnson’s conduct.77
In Count XIV,78 plaintiff asserts negligence against Williams.79 Finally, he alleges,
in Count XV,80 respondeat superior liability against MHM for William’s conduct.81
III.

STANDARD OF REVIEW
In analyzing a motion to dismiss under FED. R. CIV. P. 12(b)(6), a review of Rule

8(a)(2) is necessary. It requires that a pleading contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” That standard “does not require
‘detailed factual allegations,’ but . . . demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”82 Thus, to survive a motion to dismiss under Rule
12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’”83 The purpose of a Rule 12(b)(6) motion to
dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide
the merits of the case.84 Evaluating a motion to dismiss under Rule 12(b)(6) requires
71

Id. at ¶¶ 91-103.
Id. at ¶¶ 104-14.
73
Id. at ¶¶ 115-29.
74
Id. at ¶¶ 130-34.
75
Id. at ¶¶ 135-40.
76
Mislabeled as Count XII in plaintiff’s amended complaint.
77
D.I. 1, Ex. B at ¶¶ 141-46.
78
Mislabeled as Count XIII in plaintiff’s amended complaint.
79
D.I. 1, Ex. B at ¶¶ 147-61.
80
Mislabeled as Count XIV in plaintiff’s amended complaint.
81
D.I. 1, Ex. B at ¶¶ 162-67.
82
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
72

(2007)).
83
84

Id. (citing Twombly, 550 U.S. at 570); see FED. R. CIV. P. 12(b)(6).
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).

9

the court to accept as true all material allegations of the complaint.85 “The issue is not
whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer
evidence to support the claims.”86 A motion to dismiss may be granted only if, after,
“accepting all well-pleaded allegations in the complaint as true, and viewing them in the
light most favorable to the plaintiff, plaintiff is not entitled to relief.”87
To survive a motion to dismiss under Rule 12(b)(6), however, the factual
allegations must be sufficient to “raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”88
A plaintiff is obliged “to provide the ‘grounds’ of his ‘entitle[ment] to relief’” beyond
“labels and conclusions.”89 Heightened fact pleading is not required; rather “enough
facts to state a claim to relief that is plausible on its face” must be alleged.90 The
plausibility standard does not rise to a “probability requirement,” but requires “more
than a sheer possibility that a defendant has acted unlawfully.”91 Rejected are
unsupported allegations, “bald assertions,” or “legal conclusions.”92
Further, “the tenet that a court must accept as true all of the allegations

85

Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation
marks and citation omitted).
87
Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks and citations
omitted).
88
Twombly, 550 U.S. at 555; see also Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007).
89
Twombly, 550 U.S. at 555.
90
Id. at 570.
91
Iqbal, 556 U.S. at 678.
92
Id. (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)
(citations omitted); Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d
Cir. 1997) (“unsupported conclusions and unwarranted inferences” are insufficient); Nami v. Fauver, 82
F.3d 63, 69 (3d Cir. 1996) (allegations that are “self-evidently false” are not accepted).
86

10

contained in a complaint is inapplicable to legal conclusions.”93 Moreover, “only a
complaint that states a plausible claim for relief survives a motion to dismiss,” which is a
“context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.”94 Thus, well-pled facts which only infer the “mere possibility of
misconduct,” do not show that “‘the pleader is entitled to relief,’” under Rule 8(a)(2).95
“When there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement of relief.”96
IV.

DISCUSSION
a.

MHM’s Respondeat Superior liability of MHM’s under 42 U.S.C. §
1983 for Conduct by Johnson

MHM argues it cannot be liable for civil rights claims pursuant to 42 U.S.C. §
1983 under respondeat superior and, therefore, such claims in Count XIII for the
conduct of Johnson must be dismissed.97 Plaintiff agrees.98 Consequently, Count XIII,
to the extent that it asserts a claim for respondeat superior against MHM for violations
under § 1983 committed by Johnson, is dismissed.
b.

MHM’s Respondeat Superior Liability under 42 U.S.C. § 1983 for
Actions by Amaral and Plaintiff’s Request to Amend

Plaintiff’s amended complaint alleges MHM is liable, by virtue of respondeat
superior, for violations by Amaral of his constitutional rights pursuant to 42 U.S.C. §

93

Iqbal, 556 U.S.at 663; see also Twombly, 550 U.S. at 555 (a court is “not bound to accept as
true a legal conclusion couched as a factual allegation”).
94
Id. at 678.
95
Id.
96
Id.
97
D.I. 3 at 5.
98
D.I. 11 at 3.

11

1983 and the Eighth Amendment.99 MHM contends because plaintiff has cited to no
policy or custom on its part, the allegations against Amaral in Count II cannot be
imputed to MHM, and must be dismissed.100 Plaintiff agrees respondeat superior
cannot be the basis for MHM’s liability for its employee’s conduct.101 Since MHM cannot
be liable through respondeat superior for claims under § 1983, any civil rights
contentions against MHM based on the conduct of Amaral in Court VII must also be
dismissed.
Plaintiff argues, however, he has sufficiently and adequately pled a direct civil
rights claim against MHM, not based on respondeat superior, and should be permitted
to amend to more adequately express his contentions.102 Because the evidence does
not show that an amendment would be inequitable, prejudicial or futile, plaintiff’s request
to amend will be granted.
The Supreme Court has consistently held that “vicarious liability is inapplicable to
§ 1983 suits.”103 “A defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior.”104 “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.”105 In Iqbal, the Supreme Court
emphasized that “in a § 1983 suit–here masters do not answer for the torts of their

99

D.I. 1, Ex. B at ¶¶ 54-58, 85-90.
D.I. 3 at 5.
101
D.I. 11 at 4.
102
Id. at 4-6.
103
Iqbal, 556 U.S. at 676.
104
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S.
527, 537 n.3 (1981); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)).
105
Rode, 845 F.2d at 1207.
100

12

servants–the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.”106 The factors necessary to establish a § 1983 violation will vary with the
constitutional provision at issue.107
The Third Circuit has reiterated a § 1983 claim cannot be premised upon a
theory of respondeat superior, and in order to establish liability for deprivation of a
constitutional right, a party must show personal involvement by each defendant.108
Under this circuit’s precedent pre-Iqbal, “there are two theories of supervisory liability.”
Supervisors may be liable if they “established and maintained a policy, practice or
custom which directly caused [the] constitutional harm.” They also may be liable if they
“participated in violating plaintiff's rights, directed others to violate them, or, as the
persons in charge, had knowledge of and acquiesced in [their] subordinates'
violations.”109 The Third Circuit recognizes the potential effect that Iqbal might have on
altering the standard for supervisory liability under § 1983, but presently has declined to
decide whether Iqbal narrows the scope of the analysis.110
Natale v. Camden County Correctional Facility determined for an employer to be
liable under § 1983, the plaintiffs must “provide evidence that there was a relevant
policy or custom, and that the policy caused the constitutional violation they allege.”111
106

Iqbal, 56 U.S. at 677 (2009).
See id.
108
See Brito v. United States Dep't of Justice, 392 F. App'x 11, 14 (3d Cir. Aug. 18, 2010) (not
published); see also Rode, 845 F .2d at 1207.
109
See Santiago v. Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir. 2010) (internal quotation
marks omitted).
110
See Santiago, 629 F.3d at 130; Bayer v. Monroe County Children and Youth Servs., 577 F.3d
186, 190 n. 5 (3d Cir. 2009) (stating in light of Iqbal, it is uncertain whether proof of personal knowledge,
with nothing more, provides sufficient basis to impose liability upon supervisory official).
111
318 F.3d 575, 584 (3d Cir. 2003).
107

13

The court further cautioned that “not all state action rises to the level of a custom or
policy.”112 A policy arises “when a decisionmaker possess[ing] final authority to
establish . . . policy with respect to the action issues a final proclamation, policy or
edict.”113 Custom can be proven by showing that “a given course of conduct, although
not specifically endorsed or authorized by law, is so well-settled and permanent as
virtually to constitute law.”114
A custom may also exist where “the policymaker has failed to act affirmatively at
all, [although] the need to take some action to control the agents of the government ‘is
so obvious, and the inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have been
deliberately indifferent to the need.’”115 “Allegations of an isolated incident . . . are not
sufficient to show the existence of custom or policy under 42 U.S.C. § 1983.”116
Consequently, in order for MHM to be liable under § 1983, the evidence must support a
finding that it, with deliberate indifference to the consequences, it established and
maintained a policy, practice or custom which directly caused plaintiff constitutional
harm.117
Here, plaintiff acknowledges respondeat superior cannot be the sole basis for
MHM’s liability for Amaral’s alleged violation of his constitutional rights.118 His present
112

Natale, 318 F.3d at 584.
Id. (quoting Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir.1996))
114
Miller v. Corr. Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D. Del. 1992) (citing Andrews v. City
of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)); see also Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658, 691 (1978).
115
Natale, 318 F.3d at 584 (internal citations omitted).
116
Jones by & Through Jones v. Berwick Area Sch. Dist., C.A. 94-1818, 1995 U.S. Dist. LEXIS
21164, at *8 (M.D. Pa. Mar. 10, 1995) (internal citations omitted).
117
Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725 (3d Cir. 1989).
118
D.I. 11 at 4.
113

14

amended complaint does not allege a custom or policy by MHM, sufficient to directly
allege a claim against it.119 As an initial matter, no proposed amended pleading was
attached to his response as required under LR 15.1(a). Plaintiff contends he asserted
adequate facts to support his request to file a second amended complaint expressly
pleading a civil rights claim against MHM, and points to paragraphs 93-95 of the
amended complaint as setting forth the relevant facts on this issue, which were not
incorporated in Count VII.120
Under FED. R. CIV. P. 15(a), “leave [to amend] shall be freely given when justice
so requires.” Under Third Circuit law, “if a plaintiff requests leave to amend a complaint
vulnerable to dismissal before a responsive pleading is filed, such leave must be
granted in the absence of undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment.”121 The amendment must be permitted unless it would be
inequitable or futile, “as when the proposed new allegations fail to state a claim upon
which relief can be granted.”122 “[T]he grant or denial of an opportunity to amend is
within the discretion of the District Court, but outright refusal to grant the leave without
any justifying reason [i.e., inequity or futility] appearing for the denial is not an exercise
of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the
Federal Rules.”123
Here, plaintiff has asserted barely sufficient facts to support his request to file a

119

D.I. 3 at 5.
D.I. 1, Ex. B at ¶¶ 85-95.
121
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis, 371
U.S. 178, 182; In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997)). See also
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
122
Walton v. Mental Health Assn. of Se. Pa., 168 F.3d 661, 665 (3d Cir. 1999).
123
Grayson, 293 F.3d at 108 (citing Foman, 371 U.S. at 182).
120

15

second amended complaint, limited to expressly pleading a claim under § 1983 of a
practice or custom against MHM.
Plaintiff acknowledges there was no MHM policy in place that caused the
constitutional violation,124 but contends a custom of MHM caused the violation,125 as
evidenced by its failure to rectify the “blind spot” in the office in which plaintiff was
abused.126 According to plaintiff, “Amaral seemed to know where to stand in the office
to avoid being seen by passers by,” which led him to suspect there had been other
victims.127 Plaintiff also notes employees of MHM were aware that the office in which
the abuse occurred had a blind spot,128 and “some employees used that office to
engage in sexual relations with inmates in prior years.”129 Finally, plaintiff alleges
Johnson suspected Amaral was molesting an inmate, but was unaware it was
plaintiff.130
Because these allegations may plausibly rise to the level of stating a claim that a
custom of MHM resulted in a violation of plaintiff’s constitution rights, granting leave to
amend at this time, appears to be neither prejudicial nor futile. Therefore, plaintiff’s
request to amend to add a direct civil rights violation against MHM is granted. MHM’s
motion to dismiss Count XIII based on respondeat superior for civil rights violations
committed by Amaral, is granted.
c.

MHM’s Liability, by Virtue of Respondeat Superior, for Remaining

124

D.I. 11 at 4 (citing D.I. 1, Ex. B at ¶ 57).
D.I. 11 at 4.
126
D.I. 1, Ex. B at ¶ 93.
127
Id. at ¶ 33.
128
Id.
129
Id.
130
Id.
125

16

Claims Against Amaral
Finally, Count VII of plaintiff’s amended complaint alleges MHM is liable for the
remaining claims against Amaral via respondeat superior.131 MHM argues that because
Amaral’s actions were not within the course and scope of his employment as a
counselor with MHM, it is not liable for such actions, requiring the count to be
dismissed.132 The court agrees, and grants MHM’s motion to dismiss Count VII, which
relies on liability for MHM through the conduct of Amaral.
In Delaware, responsibility for an employee's tortious conduct, committed in the
scope of employment, will be imputed to the employer under the doctrine of respondeat
superior.133 It is well settled, however, that an employer is only liable for “the torts of his
employee committed while acting in the scope of his employment.”134 The term “scope
of employment” is somewhat amorphous, and Delaware courts have often looked to the
Restatement of Agency for guidance in defining and applying that term.135 Section 228
of the Restatement provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform; (b) it occurs substantially
within the authorized time and space limits; (c) it is actuated, at least in
part, by a purpose to serve the master, and (d) if force is intentionally used
by the servant against another, the use of force is not unexpectable by the
master. (2) Conduct of a servant is not within the scope of employment if
it is different in kind from that authorized, far beyond the authorized time or
131
D.I. 1, Ex. B at ¶¶ 85-90. Those claims are for assault and battery, intentional affliction of
emotional distress, medical malpractice, negligent infliction of emotional distress and invasion of privacy.
Id. at ¶¶ 49-53 and 59-84.
132
D.I. 3 at 7.
133
Doe v. Giddings, C.A. No. N10C–08–178 PLA, 2012 WL 1664234, at *2 (Del. Super. May 7,
2012).
134
Fields v. Synthetic Ropes, Inc., 59 Del. 135, 143 (Del. 1965).
135
Tell v. Roman Catholic Bishops of Diocese of Allentown, C.A. Nos. 09C-05-171 JAP, 09C-06196 JAP, 2010 WL 1691199, at *10 (Del. Super. Apr. 26, 2010); see also Wilson v. Joma, Inc., 537 A.2d
187, 189 (Del. 1988).

17

space limits, or too little actuated by a purpose to serve the master.136
It makes no difference whether the employee's tortious conduct is negligent or
intentional.137
Under § 229,
[t]o be within the scope of the employment, conduct must be of the same
general nature as that authorized, or incidental to the conduct
authorized.”138 “In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following matters
of fact are to be considered: (a) whether or not the act is one commonly
done by such servants; (b) the time, place and purpose of the act; (c) the
previous relations between the master and the servant; (d) the extent to
which the business of the master is apportioned between different
servants; (e) whether or not the act is outside the enterprise of the master
or, if within the enterprise, has not been entrusted to any servant; (f)
whether or not the master has reason to expect that such an act will be
done; (g) the similarity in quality of the act done to the act authorized; (h)
whether or not the instrumentality by which the harm is done has been
furnished by the master to the servant; (i) the extent of departure from the
normal method of accomplishing an authorized result; and (j) whether or
not the act is seriously criminal.139
The determination of whether an employee was acting within the scope of employment
is “ordinarily one for decision by the jury, unless the contrary is so clearly indicated by
the facts that the court should decide it as a matter of law.”140 Under § 245, an
employer is liable for the intentional tortious conduct of his employee “if the act was not
unexpectable in view of the duties of the [employee].”141

136

Tell, 2010 WL 1691199, at *10 (quoting Restatement (Second) of Agency § 228).
Restatement (Second) of Agency § 228 (1958); see also Simms v. Christina Sch. Dist., C.A.
02C-07-043 JTV, 2004 WL 344015, at *5 (Del. Super. Jan. 30, 2004) (quoting Draper v. Olivere Paving &
Const. Co., 54 Del. 433, 441 (1962)).
138
Id. § 229 (1958).
139
Id.; see also Draper, 54 Del. at 442.
140
Draper, 54 Del. at 442 (citing Restatement (Second) of Agency, § 228, comment d).
141
Restatement (Second) of Agency § 245 (1958).
137

18

Delaware has also adopted the dual purpose doctrine, which states that “conduct
of an employee, although done in part to serve the purposes of the servant or a third
person, may be within the scope of employment if the employer's business actuates the
employee to any appreciable extent.”142 First cited in Delaware in Wilson v. Joma, Inc.,
the Delaware Supreme Court noted that “[w]here the servant is combining his own
business with that of his master, or attending to both at substantially the same time, no
nice inquiry will be made as to which business the servant was actually engaged in
when a third person was injured; but the master will be responsible, unless it clearly
appears that the servant could not have been directly or indirectly serving his master.”143
Thus, under the dual purpose doctrine, the fact that “the primary motive of the servant is
to benefit himself or a third person does not cause the act to be outside the scope of
employment.”144
Draper v. Olievere Paving & Construction Co. outlines when an employee’s
actions fall within the scope of employment enabling respondeat superior to operate
against the employer.145 The Delaware Supreme Court reiterated that “liability for the
torts of the servant is imposed upon the master only when those torts are committed by
the servant within the scope of his employment which, theoretically at least, means that
they were committed in furtherance of the master's business.”146 The court further
commented that in the case of intentional torts, the “Restatement would impose liability

142

Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del. 1988) (citing Best Steel Bldgs., Inc. v. Hardin,
553 S.W.2d 122, 128 (Tex. Civ. App. 1977)).
143
Id. (citing Ryan v. Farrell, 208 Cal. 200, 280 P. 945 (1929)).
144
Wilson, 537 A.2d at 189.
145
Draper, 54 Del. at 433.
146
Id. at 441.

19

upon the master for his servant's intended tortious harm ‘if the act was not unexpectable
in view of the duties of the servant.’”147 The court acknowledged, however, that “the
problem of determining whether or not a particular tortious act was one performed within
the scope of the servant's employment for which the master consequently is liable is
one which, of necessity, can be answered only in the light of the particular
circumstances of the case under consideration.”148
In Draper, the employer was retained to reconstruct a street.149 Its employee was
operating a road grader on the shoulder of the road when he became involved in an
argument with a motorist, who he believed had ignored signs and barricades.150 The
argument escalated to an assault in which the employee cut the motorist severely in the
neck with a corkscrew.151 The court held summary judgment in favor of the employer
was not proper because a jury could find that the employee was acting within the scope
of his employment when he attacked the motorist.152
The court found “it will be obvious that at least part of the tests to determine if
particular conduct is within the scope of employment laid down in Restatement of
Agency (2nd), § 228, has been met without question.”153 The employee was directing
traffic when the assault occurred.154 The attack also occurred during the employee’s
work hours and on the site where he was employed, and his initial actions leading up to

147

Id. at 433.
Id. at 442.
149
Id. at 436.
150
Id. 437.
151
Id.
152
Id. at 444.
153
Id.
154
Id.
148

20

the assault were in performance of the employer’s business.155 Thus, the court found
“the only element about which there can be any real debate is whether or not
[employee’s] use of intentional force was expectable by [employer].”156 In response to
this inquiry, the court stated “we think men might differ. Certainly, there is nothing in
this record to throw any light whatsoever on the question of whether or not the use of
force by traffic directors on construction jobs is so rare as to be unexpectable.”157
The court pointed to numerous decisions from other jurisdictions involving
physical assaults committed by employees while they were on the job,158 and concluded
“it is a close and difficult question of fact as to whether the assault . . . was entirely the
product of [the employee’s] anger, which arose independently of his performance of the
duties of his employment, or whether it occurred while [employee] was in fact in the
performance of his duties, and was motivated at least in part by the desire to serve his
master's interests.”159 Because “the facts taken most favorably to the plaintiffs show a
continuous course of action which commenced initially at least with the carrying out by
[employee] of the duties for which he had been hired,”160 it found an issue of fact.
More recent case law has addressed whether sexual abuse by an employee
may be considered within the scope of employment. The relevant Delaware cases on
this issue, detailed below, have found that such conduct is never motivated by a desire
to serve the employer, and cannot properly be within the scope of employment.

155

Id.
Id.
157
Id. at 445-46.
158
Id. at 446-48.
159
Id. at 445.
160
Id. at 448.
156

21

In Simms v. Christina School District, the Superior Court found a school
residential advisor was not acting within the course and scope of his employment when
he sexually assaulted a student at the school.161 The plaintiff, who attended the school,
was hearing and mentally impaired, and the facility was the designated public
educational institution for children with hearing impairments.162 The employee was a
residential advisor, employed to supervise older male students, who resided in the
dormitory. The employee’s job duties included “p]rovid[ing] a safe and orderly homelike environment for students,” “[d]evelop[ing] and monitor [ing] behavior management
systems,” and “[d]evelop[ing] and implement[ing] programs to promote student growth
(linguistic, social, emotional and intellectual).”163
While living in the school dormitory, the plaintiff was repeatedly sexually
assaulted by the residential advisor.164 In his complaint, the plaintiff alleged the school
district and officials were vicariously liable for the sexual abuse committed by the
employee.165 The court found that while the employee was “clearly taking advantage of
his position as a residential advisor during work hours and at the workplace, no
employment related activity was even remotely taking place when [the employee] was
sexually abusing the plaintiff.”166
The court in Simms distinguished the facts from those in Draper,167 because the

161

Simms, 2004 WL 344015, at *8.
Id. at *1.
163
Id.
164
Id. at *2-3.
165
Id. at *4.
166
Id. at *5.
167
Draper, 54 Del. at 443.
162

22

assault in Draper “occurred in the context of employment related activity.”168 Simms,
however, involved continuous sexual abuse which did not occur in the context of
otherwise authorized acts.169 Granting the defendant’s motion for summary judgment,
the court determined “a jury could not find that [employee’s] continuous sexual abuse of
the plaintiff was actuated, at all, by a purpose to serve his employer, or that his
misconduct was, in any way, expectable by his employer.”170
In Tell v. Roman Catholic Bishops of Diocese of Allentown, the issue was
whether a Delaware court could assert personal jurisdiction over two out-of-state
Catholic dioceses and a Catholic parish in Maryland.171 Both matters arose from
alleged sexual abuse occurring in Delaware by priests employed by one of the out-ofstate entities.172 The plaintiff argued the employer should be held vicariously liable for
the priests’ conduct.173 The court held “if the moving defendants are liable under the
doctrine of respondeat superior, the conduct of the abusing priest is attributable to his
employer and will determine the jurisdictional issue.”174
In determining whether the priest’s conduct was within the scope of employment,
the court stated “as one court aptly put it, sexual abuse by a priest “‘represent[s] the
paradigmatic pursuit of some purpose unrelated to his master’s business.’”175 It further
noted “the cases which have considered the issue have uniformly rejected the

168

Simms, 2004 WL 344015, at *7.
Id.
170
Id.
171
2010 WL 1691199, at *1.
172
Id. at *1-3.
173
Id. at *9.
174
Id.
175
Id. at *11 (quoting Tichenor v. Archdiocese of New Orleans, 32 F.3d 953, 960 (5th Cir.1994)).
169

23

contention that a priest is acting within the scope of his employment when he sexually
abuses a minor because the priest was not hired to engage in such conduct and
because the abuse is not motivated by a purpose to serve the church.”176 Concluding
the sexual abuse as outside of the scope of employment, the court found “it is difficult, if
not impossible, to envision how the assaults furthered the church's purpose . . . Neither
plaintiff offers any suggestion how their abuser's conduct furthers the church's business.
Indeed, both concede that their abuser's conduct was for his own purpose and not that
of the church.”177 Consequently, the plaintiffs’ jurisdictional claims could not be base on
the conduct of the priests.178
In a similar matter, Doe v. Giddings, the plaintiff accused an on-duty state police
officer of rape while being detained on shoplifting charges.179 She claimed respondeat
superior against the state for the officer’s actions.180 In granting summary judgment, the
court found the officer’s “conduct falls outside the scope of his employment as a matter
of law.”181 It further noted despite being a police officer, who maintained custody over
the plaintiff at the time of the alleged incident, nothing in the record supported the
defendant’s conduct was consistent with the scope of his employment. “Common
sense dictates that sexually assaulting a crime suspect, a clear abuse of police authority
under any circumstances, is not incidental to the arrest and detention of a suspect,”182
finding the crime alleged “is so outrageous, and such a clear abuse of [the officer’s]

176

Id. at *10.
Id. at *11.
178
Id. at *12.
179
Doe, 2012 WL 1664234, at *1.
180
Id. at *1.
181
Id. at *3.
182
Id.
177

24

position and authority . . . that it would be unreasonable as a matter of law for a jury to
find that [the officer] acted in the scope of his employment.”183
Here, nothing alleged “raise[s] a reasonable expectation that discovery will reveal
evidence”184 that Amaral’s sexual abuse was within the scope of his employment.
Because acting within the scope of employment is a necessary element for respondeat
superior to apply, plaintiff has failed to state a claim under Rule 12(b)(6). This
conclusion is supported by an application of the factors found in the Restatement of
Agency, as well as the relevant case law.
Applying Restatement of Agency § 228, Amaral’s conduct was not within the
scope of employment, because it was not of the kind he was employed to perform as a
counselor in the Key program. According to plaintiff, Amaral’s services were required to
be consistent with standards,185 which expressly prohibit “sexual intimacy with clients
[as] unethical,” and “certified counselors will not be sexually, physically, or romantically
intimate with clients.”186 The standards also provide “certified counselors do not
condone or engage in sexual harassment, which is defined as unwelcome comments,
gestures, or physical contact of a sexual nature.”187 Although the alleged abuse
occurred in Amaral’s office on the prison grounds during working hours as required
under § 228(1)(b), the continuous course of abuse would not serve a purpose of MHM.
As admitted by plaintiff, Amaral took extensive measures to secrete his conduct from his
employer, as he forced plaintiff to “lie to his first counselor at SCI, Mr. Mike Miller, to
183

Id. at *4 (emphasis added).
Twombly, 550 U.S. at 555.
185
D.I. 1, Ex. B at ¶ 11.
186
Id. at ¶ 11.
187
Id. at ¶ 70.
184

25

cover up his abuse.”188 Finally, although force and intimidation were used by Amaral, no
facts are alleged that such conduct was expectable by MHM. As previously discussed,
it was contrary to the expectations of MHM. While physical force may be required or
foreseeable by a prison guard, MHM had no reason to anticipate that a counselor would
engage in sexual activity against an inmate.
Under § 229, sexual abuse is not an acceptable act commonly occurring with
counselors, is outside the enterprise of MHM, nor are any facts alleged that MHM would
expect such conduct to occur. Sexual abuse is not similar in quality to the counseling
authorized, and is an extreme departure from appropriate psychological treatment.189
Finally, Amaral’s actions likely constitute criminal activity since sexual relations
between inmates and employees of contractors at a detention facility is a crime.190
Pursuant to 11 DEL. C. § 1259, “a person is guilty of sexual relations in a detention
facility when, being . . . a contractor or employee of a contractor at a detention facility
. . . the person engages in consensual sexual intercourse or sexual penetration with a
person in custody on the premises of a detention facility.”191 If consensual sexual
relations are prohibited, then such nonconsensual activities would constitute serious
criminal conduct under § 229(2)(j), which takes Amaral’s behavior outside scope of
employment.
Under § 245,192 Amaral’s misconduct was directly counter to his role as a

188

D.I. 1, Ex. B at ¶ 27.
Restatement (Second) of Agency, § 229 (1958); see also Draper, 54 Del. at 442.
190
11 DEL. C. § 1259.
191
Id.
192
Restatement (Second) of Agency § 245 (1958) (an employer is liable for the intentional tortious
conduct of his employee “if the act was not unexpectable in view of the duties of the [employee]”).
189

26

counselor and is an extreme departure from the expected proper behavior for that
position. As alleged by plaintiff, rather than acting in furtherance of MHM’s purpose of
providing mental health, substance abuse and sex offender treatment,193 Amaral sought
to fulfill “his own needs and desires in his ‘counseling’ of [plaintiff] at [plaintiff’s]
expense,”194 making his actions fall outside the scope of employment.
Plaintiff further argues the dual purpose doctrine operates against MHM because
“the abuse occurred in the midst of authorized, employment-related activities . . . that
being the provision of counseling to a patient-inmate.”195 The factual allegations do not
suggest MHM’s business actuated Amaral “to any appreciable extent.”196 In Simms, the
court found that “no employment related activity was even remotely” occurring when the
sexual abuse happened.197 Similar to the facts in Simms, in which the residential
advisor was hired to provide assistance to residential students living in the dorm rooms,
Amaral was employed as a counselor. However, although the abuse occurred within
the prison, Amaral was not plaintiff’s primary counselor, since he was employed as a
counselor/administrator for Phase III of the KEY Program at SCI, while plaintiff was
participating in Phase I.198
Assuming Amaral was assigned to provide mental health treatment to plaintiff, no
employment-related activity was taking place when the sexual abuse occurred. Amaral
clearly “could not have been directly or indirectly serving”199 MHM. Thus, the dual

193

D.I. 1, Ex. B at ¶ 7.
Id. at ¶ 74.
195
D.I. 11 at 9.
196
Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del. 1988).
197
Simms, 2004 WL 344015, at *5.
198
D.I. 1, Ex. B at ¶ 18.
199
Wilson, 537 A.2d at 189 (citing Ryan v. Farrell, 208 Cal. 200, 280 P. 945 (1929)).
194

27

purpose doctrine is inapplicable, and Amaral’s actions were outside the scope of
employment.
Delaware case law establishes that sexual assault and sexual abuse committed
by an employee, regardless of the context, falls outside of the course and scope of
employment, and does not further the work or interests of the employer.200 The
circumstances in the instant matter are analogous to those in Simms, Doe, and Tell,
which demonstrate that Amaral’s continuous sexual abuse of plaintiff did not promote
the purposes of MHM.
Although Simms and Doe involved motions for summary judgment, Tell,
however, concerned a motion to dismiss for lack of personal jurisdiction,201 which
recognized all factual allegations in the complaint as true and viewed all factual
inferences in the favor of the plaintiff-nonmoving party.202 These three cases address
the application of respondeat superior in sexual abuse matters under Delaware law, and
demonstrate that plaintiff, in the instant matter, has not alleged a claim for relief against
MHM.
Simms, Doe, and Tell establish that sexual abuse is not within the scope of
employment. In Tell, the court referenced voluminous case law in numerous
jurisdictions who have “overwhelmingly, if not uniformly . . . held that a priest who

200

See supra notes 166-88 and accompanying text.
Tell, 2010 WL 1691199, at *8.
202
Id. at *3 (citing Daily Underwriters of America v. Maryland Auto. Ins. Fund, C.A. No. 07C-08208 RRC, 2008 WL 3485807, at *2 (Del. Super. July 31, 2008); Wright v. American Home Products Corp.,
768 A.2d 518, 526 (Del. Super. 2000)).
201

28

sexually abuses another is not acting within the scope of its employment.”203 Similar to
203

Tell, 2010 WL 1691199, at *11 (citing Mark K. v. Roman Catholic Bishop, 67 Cal. App. 4th 603,
609 (Cal. Ct. App.1998) (allegations of sexual abuse of a minor were outside the scope of the clergy
member's employment); Moses v. Diocese of Colorado, 863 P.2d 310, 329 (Colo.1993) (alleged sexual
misconduct of priest not within course and scope of employment); Destefano v. Grabrian, 763 P.2d 275,
287 (Colo.1988) (“When a priest has sexual intercourse with a parishioner it is not part of the priest's
duties”); Dewaard v. United Methodist Church, 793 So.2d 1038, 1041 (Fla. App. 2001) (church not held
liable for pastor's sexual misconduct because “the sexual conduct alleged by plaintiffs was for the
personal motives of the pastor, and not designed to further the interests of the church”); Alpharetta First
United Methodist Church v. Stewart, 472 S.E.2d 532, 535-36 (Ga. Ct .App.1996) (granting judgment in
favor of church on claim for alleged sexual misconduct by minister, holding “it is well settled under Georgia
law that an employer is not responsible for the sexual misconduct of an employee” and “[t]his is especially
true of the sexual misconduct of a minister”); Konkle v. Henson, 672 N.E.2d 450, 457 (Ind. Ct. App.1996)
(“The unauthorized acts committed by [the priest] are not similar to his duties as a minister. [The priest]
may have had access to [the plaintiff] because of his position as pastor, but he was not engaging in
authorized acts or serving the interests of his employer at the time he molested [the plaintiff]. Thus, we
conclude that summary judgment in favor of the Church Defendants on the issue of respondeat superior
liability was proper.”); Gagne v. O'Donoghue, No. CA 941158, 1996 WL 1185145, at *5 (Mass. Super.
June 26, 1996) (holding, in sexual abuse context, “there is little likelihood that the instant plaintiff will
prevail upon a ‘scope of employment’ theory of vicarious liability because the torts he alleges fall well
outside the scope of the perpetrators' employment”); H.R.B. v. J.L.G., 913 S.W.2d 92, 97 (Mo. Ct.
App.1995) (affirming dismissal of claims against archdiocese because the priest's sexually abusive acts
“clearly were not part of defendant's duties as a priest or as a teacher, nor were they intended to further
any religious or educational interests of the Catholic Church”); Joshua S. v. Casey, 615 N.Y.S.2d 200, 201
(N.Y.1994) (priest's alleged sexual assault of child is neither within the scope of employment nor in
furtherance of the employer's business); Byrd v. Faber, 565 N.E.2d 584, 588 (Ohio 1991) (“The Seventhday Adventist organization in no way promotes or advocates nonconsensual sexual conduct between
pastors and parishioners [, and t]he appellants did not hire [the priest] to rape, seduce, or otherwise
physically assault members of his congregation.”); N.H. v. Presbyterian Church, 998 P.2d 592, 599
(Okla.1999) (“Ministers should not molest children. When they do, it is not a part of the minister's duty nor
customary within the business of the congregation . . . No reasonable person would conclude that [the
priest's] sexual misconduct was within the scope of employment or in furtherance of the national
organizations' business.”); R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 700 (Pa. Super. 2000)
(affirming dismissal of claim against church based on alleged sexual misconduct by minister by holding
“[n]othing about [the priest's] sexual abuse of R.A. had any connection to the kind and nature of his
employment as a minister”); Howard v. Guidant Mut. Ins. Group, 785 A.2d 561, 563 (R.I. 2001) (“Clearly, a
sexual liaison with a parishioner falls outside of the scope of a minister's employment; Dausch v. Rykse,
52 F.3d 1425, 1428 (7th Cir.1994) (affirming dismissal of claim against church based on alleged sexual
misconduct by pastor because “the church defendants could not be held vicariously liable for actions done
by [the priest] solely for his own benefit and not as a part of his ministerial duties”); Tichenor, 32 F.3d 953
at 959-60 (“It would be hard to imagine a more difficult argument than that [the priest's] illicit sexual
pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of
St. Rita's, his employer. Instead, given [the priest's] vow of celibacy and the Catholic Church's unbending
stand condemning [sexual] relations [outside of marriage], [the priest's] acts represent the paradigmatic
pursuit of some purpose unrelated to his master's business.”); Olinger v. Corp. of the Pres. of the Church
of Jesus Christ of Latter-Day Saints, 521 F. Supp. 2d 577, 582 (E.D. Ky.2007) (granting judgment in favor
of church for alleged sexual misconduct by missionary, determining “no reasonable jury could find that
[missionary] was acting within the scope of his missionary work or that he was acting to advance any
cause of the COP when he allegedly molested ‘A’); Doe v. Catholic Soc. Of Religious and Literary Educ.,
CA. No. H-09-1059, 2010 WL 345926 (S.D .Tex. Jan. 22, 2010) (outside scope of employment and did not
further employer's interests); Doe v. Capuchin Franciscan Friars, 520 F. Supp. 2d 1124, 1131-32 (E.D.
Mo. 2007) (holding a priest's alleged sexual abuse of a minor “clearly reflects ‘purely private and personal

29

Tell, Amaral’s repeated sexual abuse of plaintiff represents “the paradigmatic pursuit of
some purpose unrelated to his master’s business.”204 Rather than being tangentially
related to MHM’s goals of providing mental health and substance abuse treatment,205
Amaral’s repeated misconduct was committed solely in furtherance of his own
purposes.
Doe established the time and space parameters of an improper sexual act are
not necessarily determinative of whether the conduct falls within the scope of
employment. In Doe, the sexual assault committed by the police officer occurred in his
police car.206 Despite the location of the act, the court in Doe found the definitive factor
to be that the act was so far outside the scope of the officer’s employment that “it would
be unreasonable as a matter of law for a jury to find [officer] acted in the scope of his
employment.”207 Like the conduct in Doe, “common sense dictates that sexually
assaulting” an inmate is not incidental to providing treatment and counseling.208
Therefore, the inappropriate actions as claimed by plaintiff are similarly outside the

desires and not Defendants' business or interests”); Doe v. Liberatore, 478 F. Supp. 2d 742, 758 (M.D.
Pa.2007) (“[I]t is clear that [the priest's] sexual molestation of Plaintiff was not within the scope or nature of
his employment as a priest. Indeed, ‘[t]he activity of which [Plaintiff] now complains is wholly inconsistent
with the role of one who is received into the Holy Orders as an ordained priest of the Roman Catholic
Church.’”); Graham v. McGrath, 363 F. Supp. 2d 1030, 1034 (S.D. Ill.2005) (“Taking into consideration [the
priest's] vow of celibacy and the Catholic Church's stance of condemning homosexual relations, [the
priest's] actions represent the paradigmatic pursuit of some purpose unrelated to his master's business.”);
Wilson v. Diocese of New York of Episcopal Church, No. 96 Civ. 2400 JGK,1998 WL 82921, at *5
(S.D.N.Y. Feb. 26, 1998) (“[A]cts of sexual misconduct by priests such as those alleged here are outside
the scope of the priests' employment and are clearly not in furtherance of either the Diocese's or the
Trinity Defendants' business.”); Nutt v. Norwich Roman Catholic Diocese, 921 F. Supp. 66, 70-71 (D.
Conn.1995) (“[S]exual abuse . . . cannot be said to further the defendant's business and therefore is
outside the scope of employment[.]”)).
204
Tell, 2010 WL 1691199, at *11.
205
D.I. 1, Ex. B at ¶ 7.
206
Doe, 2012 WL 1664234, at *1.
207
Id. at *4.
208
Id. at *3.

30

scope of Amaral’s employment as a counselor, because they are directly counter to
MHM’s purpose of providing mental health care and treatment to inmates.
Unlike Draper, where the court found “a continuous course of action which
commenced initially . . . with the carrying out by [employee] of the duties for which he
had been hired,”209 Simms concluded sexual abuse does not occur in the context of
otherwise authorized acts of a residential counselor.210
Finally, plaintiff maintains whether an employee is acting within the scope of his
employment is a question of fact for the jury.211 Although scope of employment may be
a jury determination, as recognized in Draper, it is not where “the contrary is so clearly
indicated by the facts that the court should decide it as a matter of law.”212 Similarly,
comment d to § 228 of the Restatement acknowledges the “question of whether or not
the act done is so different from the act authorized that it is not within the scope of the
employment is decided by the court if the answer is clearly indicated.” As previously
addressed herein, the factual contentions demonstrate Amaral’s inappropriate conduct
was “in no way motivated at least in part by the desire to serve [MHM’s] interests,”213
and contrary to his role as a counselor.
Consequently, because establishing that Amaral acted within the scope of
employment is a necessary element for a respondeat superior claim, under FED. R. CIV.
P. 12(b)(6), Count VII of the amended complaint does not survive a motion to dismiss,214

209

Draper, 54 Del. at 448.
Simms, 2004 WL 344015, at *7.
211
D.I. 11 at 12.
212
Draper, 54 Del. at 442 (citing Restatement (Second) of Agency, § 228, comment d).
213
Id. at 445.
214
Iqbal, 556 U.S. at 678.
210

31

and MHM’s motion to dismiss this count, inclusive of all claims against Amaral as
imputed under respondeat superior is granted.
V.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, it is recommend that:
(1) MHM’s motion to dismiss Count XIII of the amended complaint pursuant to

FED. R. CIV. P. 12(b)(6) based on respondeat superior liability for civil rights violations
committed by Johnson (D.I. 3) be granted.
(2) MHM’s motion to dismiss Count VII of the amended complaint pursuant to
FED. R. CIV. P. 12(b)(6) based on respondeat superior liability for civil rights violations
committed by Amaral be granted.
(3) Plaintiff’s request to amend his amended complaint to state a direct civil rights
claim against MHM be granted. Plaintiff shall file his amended complaint consistent with
the findings herein and D. DEL. LR 15.1, on or before August 2, 2013. Attached as an
exhibit to the amended complaint shall be a marked up amended complaint indicating in
what respect it differs from the pleading it amends consistent with LR 15.1(b). Any
response to the amended complaint shall occur within the time frame required under the
Federal Rules of Civil Procedure and this court’s local rules.
(4) MHM’s motion to dismiss Count VII of the amended complaint pursuant to
FED. R. CIV. P. 12(b)(6) based on respondeat superior liability for all other claims against
Amaral be granted.
Pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72 (b)(1), and D. DEL. LR
72.1, any objections to the Report and Recommendation shall be filed within fourteen
(14) days limited to ten (10) pages after being served with the same. Any response
32

shall be limited to ten (10) pages.215
The parties are directed to the Court’s Standing Order in Non-Pro Se Matters for
Objections Filed under FED. R. CIV. P. 72 dated November 16, 2009, a copy of which is
found on the Court’s website (www.ded.uscourts.gov.)
Date: June 28, 2013

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

215

FED. R. CIV. P. 72(b)(2).

33