Grubbs v. Newark Delaware Police Department et al

Filing 184

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 3/29/2016. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

JASON W. GRUBBS,
Plaintiff,

v.
UNIVERSITY OF DELAWARE
POLICE DEPARTMENT, et al.

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Civ. No. 15-195-SLR

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Defendants.

)

Jason W. Grubbs, Plaintiff, prose.
Christofer C. Johnson, Esquire, Assistant City Solicitor, City of Wilmington Law
Department, Wilmington, Delaware. Attorney for Defendant City of Wilmington.
Joseph C. Handlon, Esquire and Roopa Sabesan, Esquire, Deputy Attorneys General.
State of Delaware Department of Justice, Wilmington Delaware. Attorneys for
Defendants Kathleen Jennings, Danielle Brennan and Michael Degliobizzi.
Richard D. Abrams, Esquire and Daniel P. Bennett, Esquire of Mintzer, Sarowitz, Zeris,
Ledva & Meyers, LLP, Wilmington, Delaware. Attorneys for Defendants Newark
Delaware Police Department, Cpl James Marconi, MS/CPL Greg D'Elia, Sgt Andrew
Rubin, George F. Stanko, Thomas J. Buglio, Michael K. Van Campen, City of Newark,
Chief Paul M. Tiernan, DC/LT Mark Farrall, Detective James Skinner and DC/LT/CPT
Kevin Feeney.
James Darlington Taylor, Jr., Esquire, Allison Jean Mccowan, Esquire and Dawn Kurtz
Crompton, Esquire, of Saul Ewing LLP, Wilmington, Delaware. Attorneys for University
of Delaware Police Department, Sgt. Maier, Chief Patrick Ogden, Detective Jay Protz,
Officer Sean Hogan, Sgt. Jeffrey Gates, Emmet M. Robinson, University of Delaware
and Udaily.

MEMORANDUM OPINION
Dated: March d-'\ , 2016
Wilmington, Delaware

~N~udge
I. INTRODUCTION
On March 2, 2015, prose plaintiff Jason W. Grubbs ("plaintiff') filed this action
against thirty-five different individuals and entities for claims emanating from his arrest
and prosecution. (D.I. 1) Plaintiff alleges civil rights violations pursuant to 42 U.S.C. §§
1983, 1985 and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution. U.S. Const. amend. IV, V, VI, VIII, XIV. Plaintiff also asserts
violations of Delaware state law, including claims of false arrest, false imprisonment,
assault, battery, defamation, invasion of privacy, negligent publication, gross
negligence, malice, negligent infliction of emotional distress, malicious prosecution,
abuse of process, conspiracy, and tortious interference.

Prior to filing an answer to

plaintiffs complaint, defendants moved for dismissal. (D.I. 13, 23, 78, 102, 112, 140,
148, 172)
By order dated November 30, 2015, the Honorable Gregory M. Sleet granted the
motions to dismiss filed by defendants Delaware Business Daily, Kennetttimes.com,
CBS Broadcasting Inc., Daily News L.P., Delmarva Broadcasting Company, Pacific and
Southern Company, Inc., Cora Van Olson, Newark Post Online, and Huffington Post.
(D.I. 177) The court found that plaintiff had failed to state viable causes of action under

§ 1983 on counts one through twelve and fourteen, and that plaintiff had filed the
complaint outside Pennsylvania's one-year statute of limitation for the actions of
defamation, and negligent, reckless and intentional publication.
On December 16, 2015, the case was reassigned to the undersigned. Pending
before the court are fully briefed motions to dismiss filed by: (1) defendants Kathleen

Jennings, Danielle Brennan, Michael Degliobizzi (collectively, "State defendants") (D.I.
140, 141, 150, 153); (2) City of Wilmington (D.I. 23, 24, 118); (3) Newark Delaware
Police Department ("NPD"), City of Newark, Cpl James Marconi, MS/CPL Greg D'Elia,
Sgt Andrew Rubin, George F. Stanko, Thomas J. Buglio, Michael K. Van Campen, City
of Newark, Chief Paul M. Tiernan, DC/Lt. Mark Farrall, Detective James Skinner and
DC/LT/Cpt Kevin Feeney (collectively, "Newark defendants") (D.I. 148, 149, 152, 155);
(3) University of Delaware Police Department ("UDPD"), Sgt Maier, Chief Patrick
Ogden, Detective Jay Protz, Officer Sean Hogan, Sgt Jeffrey Gates, Emmet M.
Robinson, University of Delaware ("UD"), and Udaily (collectively, "UD defendants").
(D. I. 172, 173, 175, 178) Also ripe for review are plaintiff's motions for default judgment
and to seal a document. (D.I. 96, 97, 156, 158, 174, 179, 181) The court has
jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1332(a)(1).

II. BACKGROUND 1

1

"On a motion to dismiss for failure to state a claim, all allegations in the
pleadings must be accepted as true and the plaintiff must be given the benefit of every
favorable inference that can be drawn from those allegations." Schrab v. Catterson,
948 F.2d 1402, 1405 (3d Cir. 1991 ).

2

Plaintiff's complaint alleges the following facts. 2 At approximately 10:30 p.m. on
April 20, 2013, plaintiff was jogging on the sidewalk in the area of the University of
Delaware ("UD") campus. 3 (D.I. 1 at~ 44, 45, 77) Suddenly, an unmarked police
vehicle drove directly toward plaintiff, sliding to a complete stop. 4 Plaintiff surmised that
the driver of the vehicle was drunk and dangerous. (Id.

at~~

77, 78, 210) Defendants

2

Throughout his complaint, plaintiff references police reports, an official NPD
news release, photographs and filings made in the underlying criminal action filed by
various officers with NPD and UDPD. Plaintiff also references an official news release
and photographs published by NOP, and filings in the criminal action brought by the
State of Delaware regarding charges emanating from his arrest on April 20, 2013. (See
e.g., D.I. 1 at~ 178) Generally, a court considering a motion to dismiss may not
consider matters outside the pleadings. "However, an exception to the general rule is
that a 'document integral to or explicitly relied upon in the complaint' may be considered
'without converting the motion [to dismiss] into one for summary judgment.' In re
Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997)
(citation omitted). A "court may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based
on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cri. 1993). Since defendants have attached to their motions to dismiss
documents from the official court proceeding, including plaintiff's plea agreement and
judgment before probation orders (PBJ), as well as the NPD news release,
photographs, and related publications at issue, the court will consider said documents.
Id.; Shellev v. Wilson, 339 Fed. Appx. 136, 137 n.2 (3d Cir. 2009) (documents related to
the underlying criminal action (forming the basis of the 1983 action) were properly
considered by the court because the documents were matters of public record,
referenced in the complaint, and/or integral to plaintiff's allegations).
3

Parts of plaintiff's version of the events that transpired differs from police reports
and the NPD news release (as well as publications and broadcasts relying on said
police reports and NPD news release). The court will reference the discrepancies only
where essential to its legal analysis.
4

0fficers were responding to a 911 emergency call placed regarding a sexual
assault of two female victims on the UD campus. The victims were walking on Beverly
Road when they observed a male wearing only a shirt and no pants walking on the
opposite side of the road slapping his buttocks. The suspect then fled between two
homes. While the victims did not get a good look at the perpetrator's face, they gave a
general description of the suspect. (D. I. 104 at 4)

3

Maier5 and Marconi 6 exited the vehicle, without identifying themselves, and approached
plaintiff. 7 Plaintiff was handcuffed, thrown to the ground and placed under arrest. (Id.
at 111198, 77-79, 83-84) While on the ground, an unidentified officer struck, kicked and
twisted plaintiff's right ankle, while remarking that plaintiff would not be jogging for a
while. After defendants Maier and Marconi assisted plaintiff to his feet, a K-9 dog ran
up and bit plaintiff on the medial side of his right thigh, causing pain and injury. (Id. at

111147, 99, 229) Plaintiff requested, but was not afforded, medical care. (Id. at 1111114118)
Plaintiff was transported to NPD for processing. (Id. at 1148) Many hours after
arriving, plaintiff was moved to an interrogation room for questioning by defendants
Skinner8 and Protz. 9 Plaintiff was asked the reason he was jogging on the UD campus
and engaging in "sexually deviant activities." 10 (Id. at 1150) Questioning stopped after
plaintiff requested an attorney. Plaintiff was moved to a holding cell overnight where

5

Defendant Jon Maier is a police officer employed by UDPD.

6

Defendant James Marconi is a police officer employed by NPD.

7

Police reports state that, upon seeing the officers, plaintiff fled from the officers,
hid, and attempted to scale a wall. (D. I. 1 at 1111 93-94) Plaintiff also resisted arrest. (Id.
at 11225)
8

Defendant James Skinner is a detective with the NPD.

9

Defendant Jay Protz is a detective with the UDPD.

10

0fficers questioned plaintiff about 16 similar incidents in the UD area going
back to 2011. In most of the incidents, victims reported seeing a man (either naked or
wearing only a shirt) slapping his buttocks as he walked or stood in foliage on the UD
campus.

4

the sound of opening and closing cell doors interfered with his ability to sleep. (Id. at 1l
51)
By the next morning, the dog bite and ankle injury were causing plaintiff severe
pain. He requested medical treatment. Defendant Skinner denied his request. (Id. at 1l
52) Plaintiff was charged with 18 different criminal offenses and ordered transferred to
the UDPD for further processing. (Id. at 1l 53)
Defendant Hogan 11 transported plaintiff to the UDPD detention center. (Id. at 1l1l
55-57) During the drive, defendant Hogan addressed plaintiff as "prisoner" and took
him to a fast food restaurant to purchase a "prisoner meal." Defendant Hogan ignored
plaintiff's request for medical care for his ankle and dog bite.
Later that morning, additional criminal charges were filed, resulting in 34 counts
of conduct spanning the course of about two years on and around the area of UD's
campus. Specifically, plaintiff was charged with: two counts of possession of illegal
drugs, seven counts of criminal trespass, two counts of lewdness, one count of resisting
arrest, and twenty-two counts of indecent exposure. (Id. at 1f 58) Plaintiff was
fingerprinted, strip-searched and treated for his injuries. (Id. at 1f 59) Photographs were
taken of plaintiff's injuries. Plaintiff was forced to change in an open cell in front of men,
women and cameras. (Id. at 1f 61) At approximately 9:00 p.m., plaintiff posted bond
and was released. (Id. at 1l 60)
Sometime on April 22, 2013, defendant NPD Chief of Police Paul Tiernan issued
a five-page news release detailing the arrest and charges filed against plaintiff. The

11

Defendant Sean Hogan is an officer with the UDPD.

5

news release details the events and associated charges for multiple incidents of
indecent exposure dating back to June 2011, and accuses plaintiff of sexually
assaulting "dozens and dozens" of women through indecent exposure, groping, and
masturbation. (Id. at

,m 166-167) The news release indicated the investigation was

continuing and encouraged any additional victims to contact police, while also noting
that all defendants are innocent until proven guilty beyond a reasonable doubt. Along
with the news release, two photos (purportedly of plaintiff) were published. One of the
photos ("field photo") shows a shirtless, bald man either pulling up or down his boxer
shorts.
Later in the morning of April 22, 2013, plaintiff was informed by friends and
colleagues that there were numerous articles on the Internet, identifying him as the "UD
Flasher, Moonlight Derriere, and Naked Man." (Id. at ,-r,-r 63, 164) Defendant UDaily 12
posted an online article based on the news release. (D.I. 79 ex. 1) A note was posted
on defendant UDPD's Facebook page stating that plaintiff had been arrested on
multiple counts of indecent exposure and related charges stemming from incidents on
campus and in the area. This Facebook posting also included a link to the news
release. All publications indicated that police had finally caught their man and the
community was now safe. (Id. at ,-r 172)
Similar articles soon appeared in over "30 newspapers/online publications,"
making headlines on major networks across the nation. (Id. at ,-r,-r 64, 165) The news
release was the source of information. The field photo was published with almost every

12

The University of Delaware's daily news publication.

6

article, identifying plaintiff as the perpetrator. The stories indicated that the community
was safe because police had apprehended the perpetrator.
The intense media coverage continued for approximately one year after plaintiff's
arrest as local television stations and Internet websites and biogs reported on the
pending criminal trial and published the field photo identifying plaintiff as the
perpetrator. (Id. at 1J1J 137, 170, 174) Accompanying the coverage was information for
"victim recruitment." No additional victims came forward to identify plaintiff as the
perpetrator. (Id. at 1J1l at 65, 126, 170, 174)
Sometime during the investigation, defendants Protz and Skinner visited
plaintiff's workplace, seeking certain information and records. As a result of defendants
Skinner and Protz's inquiries and the intense media coverage, plaintiff was terminated
from his job.
The criminal trial against plaintiff was postponed five times due to the
prosecutor's requests and judge reassignment. (D.I. 1 at 1J1J 68, 321) The prosecutor
assigned to the case, defendant Degliobizzi, 13 stated that "up until the date of [plaintiff's]
arrest, there was not much evidence." (Id. at 1f 142) Defendant Degliobizzi brought the
charges against plaintiff at the behest of his supervisors defendants Brennan 14 and
Jennings. 15 Plaintiff turned down multiple plea deals offered by defendant Degliobizzi.

(Id. at 1f 66) In March 2014, prior to the commencement of trial, defendant Degliobizzi

13

Defendant Michael Degliobizzi is a Deputy Attorney General with the Delaware
Department of Justice ("DOJ").
14

Defendant Danielle Brennan is a Deputy Attorney General with the DOJ.

15

Defendant Kathleen Jennings is the State Prosecutor with the DOJ.

7

nolle prossed (dismissed) twenty-five of the thirty-four charges against plaintiff. (Id.

at~

69)

During the prosecution's presentation of evidence at trial, defendant Degliobizzi
did not present expert analysis or an expert profiler, relying instead on a "cop's hunch."

(Id.

at~~

140-141) When questioned by defendant Degliobizzi, the "star witness"

identified defendant Protz (who was sitting at counsel table) as the perpetrator, not
plaintiff. (Id.

at~~

130, 305, 354) Another witness positively identified plaintiff as the

perpetrator, but his testimony was impeached as a police report was never filed.
Sometime during the trial, plaintiff entered into plea negotiations and reached an
agreement with defendant Degliobizzi, thereby ending the trial. 16 Plaintiff agreed to
plead guilty to one count of resisting arrest 17 and no contest to one count of lewdness 18
in exchange for probation before judgment ("PBJ''). Defendant Degliobizzi agreed to
not prosecute the remaining counts against plaintiff. (D.I. 141 at ex. C) Plaintiff
describes this resolution as a complete exoneration and proof that he was innocent of

16

Plaintiff avers that he was found not guilty of all charges and that the case
against him was dismissed. However, the documents submitted by defendants reflect
that there was no verdict rendered. Instead, a plea agreement was reached prior to the
end of the trial. (D.I. 1 at~~ at 72, 73)
17

The PBJ indicates that plaintiff agreed to plead guilty to resisting arrest, a
misdemeanor, and was sentenced to placement on Level Ill PBJ for a period of one
year under the supervision of the Department of Correction. (D. I. 141 ex. C)
18

The PBJ reveals that plaintiff agreed to plead nolo contendere (no contest) to
lewdness, a misdemeanor, and was sentenced to placement on Level I PBJ for a
period of one year under the supervision of the Department of Correction. (D. I. 141, ex.
C) In addition, the following special conditions were ordered against plaintiff: (1) no
contact with the City of Newark, UD, as well as seven specifically identified victims; and
(2) evaluation for emotional and or psychological problems including sexual offender
counseling and following directions for treatment or counseling. (Id.)

8

the charged conduct. With only a few months remaining on his probation before
judgment term, plaintiff filed the action at bar.

Ill. STANDARD OF REVIEW
A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of a complaint's factual allegations. Bell At/. Corp. v. Twombly, 550 U.S. 544,
555 (2007); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). A complaint must
contain "a short and plain statement of the claim showing that the pleader is entitled to
relief, in order to give the defendant fair notice of what the ... claim is and the grounds
upon which it rests." Twombly, 550 U.S. at 545 (internal quotation marks omitted)
(interpreting Fed. R. Civ. P. 8(a)). Consistent with the Supreme Court's rulings in
Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Third Circuit requires a

two-part analysis when reviewing a Rule 12(b)(6) motion. Edwards v. A.H. Cornell &
Son, Inc., 610 F.3d 217, 219 (3d Cir.2010); Fowlerv. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir.2009).
First, a court should separate the factual and legal elements of a claim,
accepting the facts and disregarding the legal conclusions. Fowler, 578 F.3d at 210-11.
Second, a court should determine whether the remaining well-pied facts sufficiently
show that the plaintiff "has a 'plausible claim for relief."' Id. at 211 (quoting Iqbal, 556
U.S. at 679). As part of the analysis, a court must accept all well-pleaded factual
allegations in the complaint as true, and view them in the light most favorable to the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536
U.S. 403, 406 (2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

9

In this regard, a court may consider the pleadings, public record, orders, exhibits
attached to the complaint, and documents incorporated into the complaint by reference.
Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n. 2 (3d Cir. 1994).
The court's determination is not whether the non-moving party "will ultimately
prevail," but whether that party is "entitled to offer evidence to support the claims."
United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir.
2011 ). This "does not impose a probability requirement at the pleading stage," but
instead "simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting
Twombly, 550 U.S. at 556). The court's analysis is a context-specific task requiring the
court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at
663-64.
Where a plaintiff proceeds pro se, the court must "liberally construe" the
complaint and hold it to "less stringent standards than formal pleadings drafter by
lawyers." Erickson, 551 U.S. at 93-94. Even still, "prose litigants must allege sufficient
facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (citations omitted). Moreover, a prose litigant "is not absolved
from complying with Twombly and the federal pleading requirements merely because
s/he proceeds prose." Thaker v. Tan, 372 Fed. Appx. 325, 328 (3d Cir. 2010) (citation
omitted).
IV. DISCUSSION

10

A. Count One - False Arrest
Plaintiff contends that defendants Maier, Marconi, Rubin and D'Elia (collectively,
"officer defendants") violated his rights under 42 U.S.C. § 1983 by effecting his arrest
without probable cause or reasonable grounds to believe plaintiff had committed an
offense (D.I. 1 at if 74-86) Specifically, there was no outstanding sworn "complaint,
information, or indictment" pending that gave officer defendants authority to arrest
plaintiff and the description provided by the two victims was undisputedly vague and
general and did not warrant his arrest.
Generally, § 1983 does not itself create substantive rights, but provides a vehicle
for vindicating a violation of a federal right. Groman v. Township of Manalapan, 47 F.3d
628, 633 (1995). A plaintiff asserting a cause of action under§ 1983 must prove two
elements: (1) a violation of a right, privilege or immunity secured by the constitution
and laws of the United States (2) that was committed by a person acting under color of
state law. Berg v. City of Allegheny, 219 F. 3d 261, 286 (3d Cir. 2000). Plaintiff's false
arrest claims implicate the Fourth Amendment.
To state a claim for false arrest under the Fourth Amendment, a plaintiff must
establish that: ( 1) there was an arrest; and (2) the arrest was made without probable
cause. James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). An arrest
based on probable cause cannot be the source of a claim for false arrest or false
imprisonment. Groman v. Twp of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995).
Probable cause exists when "the facts and circumstances within the arresting
officer's knowledge are sufficient in themselves to warrant a reasonable person to

11

believe that an offense has been or is being committed by the person to be arrested."
Estate of Smith v. Marasco, 318 F. 3d 497, 514 (3d Cir. 2003). In assessing probable

cause, the court considers "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." Dowling v. City of Philadelphia, 855 F.2d 136,
141 (3d Cir. 1988).
The court finds the record presented does not show that defendants Marconi or
Maier lacked probable cause to arrest plaintiff. It is undisputed that a 911 emergency
call from two victims was placed, reporting that they had observed a half-naked man
slapping his buttocks as he walked along Beverly Road in the area of UD. The victims
provided a general description of the suspect and said he fled between two homes. In
response to the 911 call, defendants Marconi, Maier, as well as other officers,
responded to Beverly Road and the surrounding area. Defendants Marconi and Maier
arrived to find plaintiff - matching the description and location provided by the victims and placed plaintiff under arrest. The court finds these facts are sufficient for a
reasonable officer to believe that plaintiff had committed an offense. Coupled with
plaintiff's guilty plea for resisting arrest and no contest plea to lewdness, there is
adequate probable cause to vitiate the claim for false arrest.
Plaintiff also claims that defendants City of Newark, NPD, Chief Patrick Ogden,
Chief Paul M. Tiernan, Stanko, Buglio, Van Campen, Gates, Farrall, Feeney and
Robinson are all liable under the doctrine of respondeat superior for unlawful arrest. In
order to prevail on a claim under§ 1983, plaintiff must assert that the individual
defendant had personal involvement in the alleged wrongs, and liability cannot be
12

predicated solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S.
362 (1976); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Viewing the
complaint, the court finds that plaintiff alleges no facts indicating any personal
involvement by the aforementioned defendants.
With respect to defendants City of Newark, NPD, and City of Wilmington, the
court finds that these claims must be dismissed because a municipality may only be
held liable under § 1983 when the "execution of a government's policy or custom ...
inflicts the injury." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990).
A plaintiff seeking to recover from a municipality must (1) identify an allegedly
unconstitutional policy or custom, (2) show that the municipality, through its deliberate
and culpable conduct, was the "moving force" behind the injury, and (3) show a direct
causal link between the municipal action and the alleged deprivation of federal rights.
Board of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997).
Here, there are no allegations of an existing policy or custom sufficiently
established to constitute law. Moreover, a municipal department is not a "person,"
separate from the municipality subject to § 1983 liability. See Adams v. City of
Camden, 461 F. Supp. 2d 263, 266 (D. N.J. 2006). Absent any allegation that a custom
or policy established by defendants City of Newark, NPD, and City of Wilmington
directly caused harm to plaintiff, plaintiff's§ 1983 claims cannot stand. 19

B. Count Two - False Imprisonment

19

The court will not exercise supplemental jurisdiction over any remaining State
law claims against these defendants. Elkadrawy v. Vanguard Grp., 584 F.3d 169, 174
(3d Cir. 2009).
13

Plaintiff alleges that defendants Skinner, Protz, and Hogan wrongfully deprived
him of his right to liberty without due process of law and his right to equal protection
under the law by falsely imprisoning plaintiff for offenses of which he was innocent. To
state a claim for false imprisonment, plaintiff must establish that he was arrested
without probable cause and was subsequently detained pursuant to that unlawful arrest.
James v. City of Wilkes-Barre, 700 F.3d at 679-681. As discussed above, plaintiff has
not alleged any facts that would support an arrest lacking probable cause. "False arrest
and false imprisonment overlap; the former is a species of the latter." Wallace, 549
U.S. at 388. Accordingly, plaintiff has failed to plead a claim of false imprisonment as
to defendants Skinner, Protz, and Hogan.
Plaintiff asserts that defendants City of Newark, NPD, UDP, Chief Patrick Ogden,
Chief Paul M. Tiernan, Stanko, Buglio, Van Campen, Gates, Farrall, Feeney, and
Robinson are also liable for false imprisonment on the basis of the doctrine of
respondeat superior. Since there are no allegations of personal involvement, these
claims are dismissed. Rizzo v. Goode, 423 U.S. 362; Rode v. Dellarciprete, 845 F.2d at
1207.
C. Count Three - Excessive Force

Plaintiff contends that defendants Maier, Marconi, Rubin and D'Elia applied
excessive force when effecting his arrest and subjected him to cruel and unusual
punishment. (D. I. 1 at ,-r,-r 90-109) He alleges he was helpless and handcuffed when an
unidentified officer struck his ankle and an unidentified K-9 handler released the K-9
that bit his thigh. Plaintiff argues that the defendants used excessive force when

14

responding to a crime involving a minor offense (indecent exposure) and where the
victims were at least 20 feet away from the perpetrator. (Id. at

,.m 92-93)

Defendants

had no reason to believe plaintiff was dangerous or a threat.
Claims that law enforcement officers have used excessive force in the course of
an arrest should be analyzed under the Fourth Amendment and its "reasonableness"
standard. Graham v. Connor, 490 U.S. 386, 395 (1989). A court should pay close
"attention to the facts and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officer of others, and whether he is actively resisting arrest, or attempting to evade
arrest by flight." Id. at 396. Applying this authority to count three, the court finds that
plaintiff has sufficiently stated a claim for excessive force against defendants Maier,
Marconi, Rubin and D'Elia. 20
With respect to the other defendants named in this count, the court finds
dismissal of the claims is appropriate against defendants City of Newark, NPD, UDP,
Chief Ogden, Chief Paul Tiernan, Stanko, Buglio, Van Campen, Gates, Feeney and
Robinson are dismissed because no personal involvement is alleged. See Rode v.
Dellacriprete, 845 F.2d 1195, 1207.

D. Count Four - Right to be Protected from Harm
Plaintiff asserts that defendants Maier, Marconi, Rubin and D'Elia violated his
constitutional rights under the 141h Amendment by failing to protect plaintiff from harm,

20

1t is noteworthy that defendants Marconi, Rubin and D'Elia did not move for
dismissal of this claim because there are "questions of fact not yet ripe for
determination." (D. I. 149 at 1, fn.2)
15

ostensibly by not intervening when an unidentified officer struck plaintiff's ankle and an
unidentified K-9 officer allowed the K-9 to bite plaintiff's thigh. "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."
Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). "However, an officer is only

liable if there is a realistic and reasonable opportunity to intervene." Id. at 651. The
court finds that plaintiff has pied sufficient facts to support this allegation.

E. Count Five - Medical Care
In count five, plaintiff contends that defendants Maier, Marconi, Skinner, Protz,
and Hogan failed to provide medical assistance for the ankle injury and dog bite.
"Failure to provide medical care to a person in custody can rise to the level of a
constitutional violation under§ 1983 only if that failure rises to the level of deliberate
indifference to that person's serious medical needs." Groman v. Township of
Manalapan, 47 F.3d 628, 637 (3d Cir. 1995). Plaintiff has pied sufficient facts for this

claim to proceed.

F. Count Six - Special Relationship Doctrine
Plaintiff claims that defendants Maier, Marconi, Skinner, Protz, Hogan, Rubin,
and D'Elia are liable under the "special relationship" doctrine. (D.I. 1 at 1111119-123)
Once arrested, plaintiff claims he had a right to be protected, a right to medical care,
and a right not to be subjected to unreasonable force.
Generally, a state actor has no affirmative duty to protect an individual from the
acts of a third party. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir.1997)

16

(citations omitted). However, an affirmative duty may arise out of certain special
relationships between the State and particular individuals. Morrow v. Balaski, 719 F.3d
160, 167 (3d Cir. 2013). For example, when the State holds an individual in custody
against his will, the Constitution imposes upon the State a corresponding duty to
assume some responsibility for the individuals' safety and general well-being. Id. The
duty to protect does not emanate from the State's knowledge of the individual's
predicament or an expression of intent to assist, but from the restraints the State
imposes on the individual's ability to act on his own behalf. Kingsmill v. Szewcxak, 117
F. Supp.3d 657, 663-664 (E.D. Pa. 2015). The court finds that plaintiff has pied
sufficient facts to proceed with this claim. 21

G. Count Seven - Malicious Prosecution
Plaintiff contends that defendants Jennings, Brennan, Degliobizzi, Skinner, and
Protz maliciously prosecuted and deprived him of liberty interests to be free from false
accusations and a baseless prosecution. (D. I. 1 at 1[ 157) Specifically, plaintiff
contends that defendant Degliobizzi, the prosecuting attorney assigned to the case,
was ordered by his supervisors (defendants Jennings and Brennan) to file and pursue
unsubstantiated charges against plaintiff, despite the lack of evidence and without
requesting further investigation by law enforcement. Plaintiff alleges that while
prosecuting the case, defendant Degliobizzi wrongfully met privately with police officers,
allowed defendant Protz to sit at the prosecution counsel table during trial, corrupted

21

Defendants Marconi, Rubin, Skinner D'Elia have not moved for dismissal of the
claims, as they "involve questions of fact not yet ripe for determination." (D.I. 149 at 1,
fn. 2)
17

the transcript of the proceedings and contributed to the numerous postponements in
the case. The purportedly false charges filed became a source of the information
published on the Internet and by media outlets. According to plaintiff, defendants
Skinner, Protz, Degliobizzi, Brennan and Jennings orchestrated this alleged improper
prosecution for four reasons: (1) to cover-up plaintiff's allegations of excessive force by
officers at the time of his arrest; (2) to assure the public that the alleged sexual predator
was apprehended and no longer a danger to the community; (3) to protect the true
perpetrator; and (4) to "clear the decks of all the sexual assault cases so the UD would
have successful admission numbers." (D.I. 1 at~ 154)
Generally, "state prosecutors are absolutely immune from liability under§ 1983
for actions performed in a [judicial or] quasi-judicial role." Yarris v. County of Delaware,
465 F.3d 129, 135 (3d Cir. 2006). This immunity covers acts that are "intimately
associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424
U.S. 409, 430 (1976). Actions related to a "prosecutor's administrative duties and those
investigatory functions that do not relate to an advocate's preparation for the initiation of
a prosecution or for judicial proceedings are not protected by absolute immunity."
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

Whether a prosecutor is entitled to absolute immunity for his/her conduct is
contingent upon the nature of the function the prosecutor was performing. Kalina v.
Fletcher, 522 U.S. 118, 127 (1997); Yarris, 465 F.3d at 136 (3d Cir. 2006). In

determining prosecutorial immunity questions, the court conducts a two part analysis:
(1) what conduct forms the basis for the plaintiff's cause of action; and (2) what

18

"function (prosecutorial, administrative, investigative, or something else entirely) that act
served." Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011).
Applying this authority to the complaint, it is evident that the conduct of
defendants Degliobizzi, Jennings, and Brennan implicates prosecutorial functions.
First, with respect to plaintiff's contention that the charging document contained false
information, the Supreme Court has concluded that the filing and preparation of
charges are part of the advocate's function and protected by immunity. Kalina, 522
U.S. at 129. The decision to commence prosecution is at the core of a prosecutor's
judicial role. Imbler, 424 U.S. at 430 -31. A falsely-charged defendant has a remedy
through "safeguards built into the judicial system," such as probable cause hearings or
dismissal of the charges. Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992).
Similarly, defendants' actions related to trial strategy, investigation, and
presentation of evidence and witnesses are intimately related to the judicial phase of
the criminal process and protected by absolute immunity. Henderson v. Fisher, 631
F.2d 1115, 1120 (3d Cir. 1980). Challenges to any of the legal arguments presented by
state defendants is conduct of an advocate and afforded protection. Giuffre v. Bissell,
31 F.3d 1241, 1251 (3d Cir.1994) (citing Imbler, 424 U.S. at 430). Although the private
meeting between defendant Degliobizzi and police took place outside the courtroom,
plaintiffs description of the event does not suggest it was related to anything that was
not "intimately associated with the judicial phase of the criminal process." Van de
Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (quoting Imbler, 424 U.S. at 430).

Considering this authority against plaintiffs allegations, the court finds that absolute

19

immunity applies because the claims against defendants Degliobizzi, Jennings, and
Brennan implicate a prosecutor's advocacy function.
Moreover, plaintiff's claims against defendants Jennings and Brennan fail
because they are premised on their roles as supervisory attorneys. Van de Kamp, 555
U.S. at 345 (supervisory prosecutors also receive absolute immunity for conduct
implicating their advocacy function). In order to prevail on a claim under§ 1983,
plaintiff must assert that the individual defendant had personal involvement in the
alleged wrongs, and liability cannot be predicated solely on the operation of respondeat
superior. Rizzo v. Goode, 423 U.S. 362 (1976); Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir.1988). Viewing the complaint, the court finds that plaintiff alleges no facts
indicating any personal involvement by defendants Jennings and Brennan.
With respect to the substantive claim for malicious prosecution against
defendants Skinner and Protz, plaintiff must demonstrate: (1) the defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in 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. DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).
Plaintiff asserts defendants did not thoroughly investigate the crimes, consult
expert witnesses, or study the evidence before filing the baseless charges against him.
Relying on defendant Degliobizzi' statement that, "up until the date of the arrest, there
wasn't much evidence," plaintiff claims this proves there was nothing to support the
charges. (D.I. 1 at 11142) This statement, however, demonstrates only that before
20

plaintiff was arrested there was not much evidence. It does not mean that there was
insufficient evidence when the charges were filed after plaintiff's arrest. The issue is
whether there was probable cause at the time the charges were filed.
Similarly, plaintiff's assertion that his prosecution was based on an
unsubstantiated narrative lacking probable cause is a legal conclusion. On a motion to
dismiss, "we are not compelled to accept usupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski,
719 F.3d 160, 165 (3d Cir. 2013). Plaintiff describes the charges as "completely and
utterly wrong" and "improper," yet does not identify the misrepresented facts.

D.I. 1

,-m

141, 149) These "naked allegations, without some kind of elaboration, are just more
colloquial ways of saying that the charges lacked probable cause." Gebhart v. Steffen,
574 Fed. Appx. 156, 159 (3d Cir. 2014).
Moreover, plaintiff cannot establish the second element (favorable termination)
of malicious prosecution. The Third Circuit has concluded, that in order to satisfy the
favorable termination rule, a plaintiff claiming malicious prosecution must prove actual
innocence as an element of his prima facie case. White v. Brown, 2010 WL 1740717
(D. Del. 2010). Pleading nolo contendere precludes a claim for malicious prosecution
on favorable outcome. Crock v. Pennsylvania, 397 Fed. Appx. 747, 750 (3d Cir. 2010).
A sentence of probation before judgment is not considered a favorable outcome for
purposes of a malicious prosecution claim. Ferguson v. Town of Dewey Beach, 2006
WL 1174017 (Del. Super. 2006). Additionally, the fact that charges were nolle prossed

21

pursuant to the plea agreement is not considered a favorable outcome disposition.
Pittman v. Metuchen Police Dept., 441 Fed. Appx. 826, 829-830 (3d Cir. 2011).

Despite his protestations to the contrary, plaintiff was not exonerated by a not
guilty verdict. The record reflects that plaintiff pied guilty to one count of resisting arrest
and pied no contest to one count of lewdness. (D.I. 141, ex. C) On the same date,
March 24, 2014, plaintiff entered into a PBJ agreement for the charge of resisting arrest
and entered into a PBJ agreement for the charge of lewdness. He was placed on Level
I PBJ for one year. A supplemental order entered with the PBJ set special conditions of
probation which prohibit plaintiff from having contact with the "victims," including the
City of Newark, University of Delaware, seven females, one male and his family. (Id. at
ex. C 2-3) The court finds that this record does not substantiate plaintiff's
proclamations of exoneration.

H. Count Eight - Defamation
Plaintiff avers that all named defendants violated his rights by publishing untrue,
"lengthy and disgustingly descriptive" information and photographs falsely identifying
him as the perpetrator, "accused of assaulting dozen and dozens of women through
indecent exposure, groping and masturbation." (D. I. 1 at iI 167) As a result, plaintiff
lost his job and suffered "massive injury to his reputation and spirit." (Id. at iI 176)
It is undisputed that defamation, standing alone and apart from any other
governmental action, is insufficient to state a claim for relief under 42 U.S.C. § 1983.
Paul v. Davis, 424 U.S. 693, 706 (1976). To make out a due process claim for

deprivation of a liberty interest in reputation, a plaintiff must demonstrate a stigma to his

22

reputation plus deprivation of some additional right or interest. Dee v. Borough of
Dunmore, 549 F. 3d. 225, 233 (3d Cir. 2008). This is known as the "stigma-plus" test.
Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). To establish stigma, the

relevant statements must be both made publicly and false. Id. The second or plus
requirement pertains to the additional deprivation needed to transform a stigmatizing
statement into a§ 1983 action. Id. "The stigma-plus test requires that the defamation
be accompanied by an injury directly caused by the government, rather than an injury
caused by the act of some third party." D&D Associates, Inc. v. Board of Educ. Of
North Plainfield, 552 Fed. Appx. 110, 114 (3d Cir. 2014).

Applying this authority to plaintiff's allegations, the court finds that this claim
cannot succeed because the statements were not false as plaintiff was arrested on the
enumerated charges. Accordingly, the court does not reach the second element of
"stigma plus" analysis.

I. Counts Nine through Twelve
Plaintiff groups these claims together because they are similar and involve the
same circumstances, to wit, that defendants Newark, NPD, UDP, Chief Ogden, Chief
Tiernan, Stanko, Buglio, Van Campen, Gates, Feeney, Farrall, and Robinson failed to
discipline or investigate defendant Protz even though a victim, under oath, identified
him as the perpetrator. (Id. at

,m 194-195) More specifically, plaintiff avers that

defendants failed to instruct, supervise, control, and discipline on a continuing basis
subordinate police officers for: unlawful and malicious harassment; unlawful and
malicous prosecution; conspiracy to violate rights and otherwise depriving citizens of

23

their rights. These claims are clearly based on supervisory conduct, devoid of any
specific personal involvement, and are appropriate for dismissal. Dellarciprete, 845
F.2d at 1195.
J. Counts Thirteen and Fourteen - Conspiracy under§ 1983 and 1985(3)

With respect to the conspiracy claims, plaintiff asserts that all named defendants
engaged in a conspiracy as evidenced by the following overt acts:
(1) the prosecution charged 34 counts and they were all dismissed;
(2) charging plaintiff with crimes they knew or should have known
were false; (3) covering up excessive force, 'strike and bite,' by
not recording it in any/all police reports; (4) calling 'plant,' a man, to
testify as to plaintiff's guilt when all the crimes were allegedly
committed against women ... no women witnesses, just one
man; (5) police, prosecutors, and media acted as one entity,
pushing forth a demented, false narrative to humiliate and
intimidate plaintiff in order to try and 'clear the decks' of
sexual assault charges. Coverage was not 'full, accurate
and fair' and it all happened less than 36 hours after arrest. This
must have been coordinated; (6) defendant Degliobizzi at the
criminal trial called the police officers into a conference room,
there he conferred with the police instead of victims; (7) there
was not investigation into defendant Protz, even after a victim,
under oath, identified him as the perpetrator; and (8) plaintiff,
to this day, is not able to listen to the audio transcript of his trial.
The written transcript is missing 'certain exchanges' between
counsel and witnesses. The fact that statements were omitted
from the written transcript demonstrates a deep-seated conspiracy
to hide the truth.
(D.I. 1 at~ 203) Plaintiff submits that the aforementioned acts implicate violations of§§
1983 and 1985(3).
To prevail on a conspiracy claim under§ 1983, a plaintiff must demonstrate that
persons acting under color of State law conspired to deprive him of a federally
protected right." White v. Brown, 408 Fed. Appx. 595, 599 (3d Cir. 201 O); Gibbs v.

24

Hartsky, 2004 WL 1328278, at *3 (D. Del. 2004). Moreover, a conspiracy claim
requires more than mere conjecture as to an agreement. Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 178- 179 (3d Cir. 2010). Plaintiff must
provide facts establishing the time of the agreement, the parties involved, the duration
of the agreement and the object of the agreement. Id.
Having concluded that plaintiff's claims for malicious prosecution and defamation
fail, plaintiff's conspiracy claim under § 1983 fails because of the absence of an
underlying constitutional violation. Plaintiff's claim under§ 1985(3) must be dismissed
because plaintiff has not alleged that he was discriminated against because of race or
other class-based factor subject to protection. Lake v. Arnold, 112 F.3d 682, 685 (3d
Cir. 1997).

K. Supplemental Jurisdiction
Having concluded that dismissal of the federal claims against defendants City of
Wilmington, Jennings, Brennan, Degliobizzi, NPD, Stanko, Buglio, Van Campen, City of
Newark, Tiernan, Farrall, Feeney, UDPD, Odgen, Gates, Robinson, UD, and Udaily is
appropriate, the court declines to exercise supplemental jurisdiction over the remaining
State law claims asserted against the aforementioned defendants. 28 U.S.C. §
1367(c)(3). The "district court may decline to exercise supplemental jurisdiction over a
claim if 'the district court has dismissed all claims over which it has original jurisdiction."

Elkadrawy v. Vanguard Grp., 584 F.3d 169, 174 (3d Cir. 2009). "If it appears that the
federal claim is subject to dismissal under Fed. R. Civ. P. 12(b)(6), then the court
should ordinarily refrain from exercising jurisdiction in the absence of extraordinary

25

circumstances." Cito v. Bridewater Twp. Police Dep't., 892 F.2d 23, 25-26 (3d Cir.
1989). There are not extraordinary circumstances at bar that require the court to
entertain the State law claims asserted against the aforementioned defendants. Since
the claims for excessive force, medical care and special relationship are not dismissed,
the court turns to the State common law claims asserted against the remaining
defendants, Maier, Marconi, Rubin, D'Elia, Skinner, Protz, and Hogan,
L. Counts Fifteen, Sixteen and Thirty-Two

In counts fifteen, sixteen, and thirty-two, plaintiff contends that he was falsely
arrested, falsely imprisoned, and maliciously prosecuted in violation of Delaware law.
Like the allegations found in the federal claim premised on the same legal theories,
plaintiff again avers that there was no probable cause to support his arrest or
imprisonment.
"[T]he tort of false arrest differs from the tort of false imprisonment only in
terminology." Hunt ex rel. DeSombre v. State, 69 A.3d 360, 368 (2013) (citations
omitted). "False imprisonment or false arrest is generally defined as the deprivation of
the liberty of another without his consent and without legal justification. Legal
justification is held to be the equivalent of legal authority and judged by the principles
applicable to the law of arrest." Id. Pursuant to Delaware law, an arrest by a police
officer without a warrant for a misdemeanor is lawful "whenever the officer has
reasonable ground to believe that the person arrested has committed a misdemeanor
[o]ut of the officer's presence and within the State for any misdemeanor occurring on
school property." 11 Del. C. § 1904(a)(6). Given plaintiffs arrest on UD grounds,

26

dismissal of both claims against defendants Maier, Marconi, Rubin, D'Elia, Skinner,
Protz, and Hogan is warranted. 22

M. Count Seventeen - Assault and Battery
In count seventeen, plaintiff alleges conduct by defendants Maier, Marconi,
Rubin, and D'Elia caused injury to his ankle and thigh. "To bring a successful claim for
assault in Delaware, plaintiff must prove that a specific defendant intentionally caused
plaintiff to be in fear of an immediate harmful or offensive contact, without plaintiff's
consent." Smith v. Delaware State Police, 2014 WL 3360173, at *6 (Del. Super. 2014).
"The tort of battery is 'the intentional, unpermitted contact upon the person of another
which is harmful or offensive."' Hunt ex rel. DeSombre, 69 A.3d at 368. Under 11 Del.
Code § 467, the use of force is justifiable when the defendant is "making an arrest or
assisting in making an arrest and believes that such force is immediately necessary to
effect the arrest." 11 Del. C. § 467(a)(1 ). The court finds plaintiff has sufficiently stated
this claim to preclude dismissal at this time. 23

N. Counts Eighteen to Twenty-One - Defamation
Plaintiff avers that defendants Skinner and Protz were the source of all
information published in the media. (D.I. 1 at 1f 261) By failing to adequately
investigate the charges, defendants acted with "gross and wanton disregard for the

22

Alternatively, the court's finding regarding the absence of probable cause with
respect to the federal claims for false arrest, false imprisonment, and malicious
prosecution applies with equal force for dismissal of the same theories under State law.
23

Defendants Marconi, Rubin, and D'Elia do not move for dismissal of this claim
because there are "questions of fact not yet ripe for determination." (D.I. 149 at 1, fn.
2)
27

truth." Plaintiff references "[m]ost publications and stories featured the alleged sexual
assault the night of plaintiffs arrest" and "were part of the counts that were nolle
prossed right before the criminal trial." (Id.

at~

242)

To state a cause of action for defamation under Delaware law, a plaintiff must
plead five elements: (1) the defamatory character of the communication; (2) publication;
(3) that the communication refers to the plaintiff; (4) a third party's understanding of the
communication's defamatory character; and (5) injury. Wright v. Pepsi Cola Co., 243 F.
Supp.2d 117, 124 (D. Del. 2003). Libel is written defamation and slander is oral
defamation. Stiner v. Univ. of Delaware, 243 F. Supp.2d 106, 115 (D. Del. 2003) (citing
Spence v. Funk, 396 A.2d 967, 970 (1978)). Truth is an absolute defense.
DeBonaventura v. Nationwide Mutual Ins. Co., 428 A. 2d 1151, 1155 (1981 ). If the

alleged defamatory statement is demonstrated not to be false, it is unnecessary to
consider any of the additional factors. Id.
Plaintiff charges defendants Skinner and Protz as the source of the information
published by the media. He does not, however, identify the exact comments or specific
publication attributable to defendant Skinner or Protz. Although plaintiff indicates the
materials will be provided, there is nothing of record for the court to review. 24 (D.I. 1 at~
245) Accordingly, absent the materials, the court cannot evaluate counts eighteen,
nineteen, twenty and twenty-one, and dismissal is appropriate. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 564.

0. Counts Twenty-Two and Twenty-Three
24

Plaintiff suggests at least thirty publications relied on information from
defendants Skinner and Protz.
28

Plaintiff contends that defendants Skinner and Protz invaded his privacy when
the NPD press release negligently included information about his private life. (D.I. 1 at
1111269-279) To establish a claim for improper public disclosure, a plaintiff must show
"four elements: (1) public disclosure (2) of a private fact (3) which would be offensive
and objectionable to the reasonable person and (4) which is not of legitimate public
concern. A failure to prove any of these elements is a complete bar to liability."
Espinoza v. Hewlett-Packard Co., 2011 WL 941464, at *7 (Del. Ch. 2011). The court
concludes that the NPD press release constitutes "the dissemination of truthful,
newsworthy material [that] is not actionable as a publication of private facts." Id.
Likewise, plaintiff's claim for invasion of privacy fails because the NPD press release
reflects a matter of public record and concern. Barbieri v. News-Journal Co., 189 A. 2d
773 (1963).

P. Counts Twenty-Four to Thirty-One
With respect to counts twenty-four to twenty-six, plaintiff asserts that a person
negligently publishes a defamatory communication when a reasonable person under
the circumstances would not have published the communication. Plaintiff seeks to hold
defendants Skinner and Protz liable, but has failed to present any facts describing their
conduct in support of these claims. Although the court is required to construe a pro se
plaintiffs allegations broadly, liberal construction does not require the court to credit a
pro se plaintiff's bald assertions or legal conclusions. Morse v. Lower Merion Sch. Dist.
132 F.3d 902, 906 (3d Cir. 1997). Similarly, plaintiff's claims in counts twenty-seven to

29

thirty recite the elements of negligence, willful and wanton conduct, and malice without
providing specific facts about defendant Skinner or Protz. 25
Regarding count thirty (actual malice), this claim is an element of a defamation
action. Notwithstanding the lack of a separate legal claim, the court finds that plaintiff
has not presented facts that defendants Skinner and Protz actually published anything
in the first instance, or acted with reckless disregard for the truth or knew of the falsity
of the information published. See Parisi v. Sinclair, 774 F. Supp. 2d 310, 319 (D. D.C.
2011 ).
In count thirty-one, plaintiff states that all defendants are guilty of "outrageous"
conduct causing severe emotional distress, which is "tantamount to an extreme form of
torture." Under Delaware law, a claim for negligent infliction of emotional distress
requires: (1) negligent conduct that proximately causes emotional distress; and (2) the
emotional distress is accompanied by non-transitory, recurring physical phenomena.
Greene v. U.S. Postal Serv., 462 F. Supp. 2d 578, 580 (D .Del. 2006) (citing Lupo v.
Med. Ctr. of Del., Inc., 1996 WL 111132, at *3 (Del. Super. 1996)). Considering that
plaintiff provides no specific conduct by defendant Skinner or Protz, this claim is
dismissed.
Q. Counts Thirty-Three to Thirty-Five

Plaintiff asserts an abuse of process claim by defendants Skinner and Protz in
count thirty-three. (D.I. 1 at 1J1J 333-343) The elements a plaintiff must prove in an
abuse of process claim in Delaware are: "(1) an improper or wrongful purpose in using

25

Plaintiff alleges that "all defendants, at all times were guilty of AT LEAST gross
negligence, in every count." (D.I. 1 at 1J1J 289, 294 (emphasis in original))
30

legal process; and (2) a willful act in the use of the system not proper in the regular
conduct of legal proceedings." Adams v. Aidoo, 2012 WL 1408878, at *13 (Del. Super.
2012). The court finds that plaintiff has failed to state a claim because the legal
proceedings were not improper, in fact, plaintiff pied guilty to one of the charges
(resisting arrest) and pied no contest (lewdness) to another.
In count thirty-four, plaintiff contends that defendants Protz and Skinner were
part of a conspiracy to arrest, detain, and confine plaintiff without probable cause and
maliciously charge and prosecute him for crimes. (D.I. 1 at 1J1J 344-350) Under
Delaware law, civil conspiracy requires: "(1) a confederation or combination of two or
more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) actual
damage." Digene Corp. v. Ventana Medical Systems, Inc., 476 F. Supp. 2d, 446 (D.
Del. 2007). "Civil conspiracy is not an independent cause of action in Delaware, but
requires an underlying wrong which would be actionable absent the conspiracy." This
count is appropriate for dismissal because plaintiff has not stated an actionable
underlying wrong.
Plaintiff alleges a claim for tortious interference against defendants Protz and
Skinner. Plaintiff contends that defendant Protz wanted to disrupt a beneficial business
relationship between plaintiff and his former employment in order to frame plaintiff.
Defendants Protz and Skinner visited plaintiff's place of employment, requesting
immaterial documents and criminalizing him, resulting in the plaintiff's termination.
To succeed on a claim for tortious interference with prospective business
relations, a plaintiff must prove: "(a) the reasonable probability of a business
opportunity, (b) the intentional interference by defendant with that opportunity, (c)
31

proximate causation, and (d) damages." Images Hair Solutions Medical Center v. Fox
Television Stations, Inc., 2016 WL 425158, at *4 (Del. Super 2016). The court finds
plaintiff has not adequately pied facts to support the elements required to prove a claim
for tortious interference.

V. CONCLUSION
For the foregoing reasons, defendants City of Wilmington and state defendants'
motions to dismiss are granted. 26 The motions to dismiss filed by Newark and UD
defendants are granted in part and denied in part. An appropriate order shall issue.

26

Plaintiffs motions for entry of default are denied as moot. (D.I. 96, 156)
Plaintiffs motion to seal all pleadings that indirectly or directly reference his expunged
record is denied. (D.I. 174)

32