Shotwell v. State of Delaware

Filing 25

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/3/2017. (crb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARK J. SHOTWELL,
Plaintiff,

v.

Civ. No. 16-441-RGA

IVIIDDLETOWII..J POLICE
DEPARTMENT, et aI.,
Defendants.

Mark J. Shotwell, Newark, Delaware. Pro Se Plaintiff.
Herbert Weiswasser Mondros, Esquire, and Sarah Michelle Ennis, Esquire, Margolis
Edelstein, Wilmington, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

J,

August
2017
Wilmington, Delaware

A~Sj~:

Plaintiff Mark J. Shotwell, who appears pro se and has been granted leave to
proceed in forma pauperis, filed this action on June 15, 2016, followed by an amended
complaint on October 31,2016. (0.1. 2, 11). Defendants move to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). (0.1.21). Plaintiff opposes. (0.1.23). Briefing on the motion
is complete.

BACKGROUND
Named as Defendants are Middletown Police Department, Officer Jordan
Douglass, Officer Michele Wharton, and Detective Stafford. 1 Plaintiff alleges violations
of his Fourth Amendment rights by reason of an unlawful search and seizure. Plaintiff
was arrested on October 16, 2015 for violating a protection from abuse order that had
been entered in mid-August 2015. (0.1. 11 at p.3). Wharton went to the residence of
the complainant on October 13, 2015, who alleged that Plaintiff had violated the
protection from abuse order when Plaintiff both telephoned the complainant and had his
mother telephone the complainant. (ld. at pp.1-2). Wharton applied for, and obtained a
search warrant for the forensic examination of Plaintiff's cell phone to obtain the phone
call history from October 13,2015. (0.1. 11-1 at pp.1-4).
When Plaintiff turned himself in on October 16, 2015, he advised Douglass that
he owned multiple cell phones and they were in his vehicle. (Id. at pp.5-8). In turn,

1 Plaintiff also named the State of Delaware and the Delaware Department of
Justice as defendants, both of whom have been dismissed as they are immune from
suit. (See 0.1. 9, 10, 12, 13). The Court docket incorrectly lists the Chief Executive
Officer of the Town Middletown, Delaware as a defendant. The Chief Executive Officer
is not a defendant, but was served as is required by the Federal Rules of Civil
Procedure when serving a local governmental entity. The Clerk of Court will be directed
to correct the docket.

Douglass sought, and obtained, a search warrant for Plaintiff's car to retrieve any cell
phones located in the vehicle in order to execute the forensic examination search
warrant on the phones. (/d.). Plaintiff alleges that Detective Stafford performed a
Cellebrite extraction report on three of Plaintiff's cell phones in a manner that exceeded
the warrant when information from August 14, 2015 until October 15, 2015 was
extracted, instead of only October 13, 2015 as set forth in the warrant. (D.1. 11 at 3).
The matter was set for trial on March 14, 2016. (D.1. 11-1 at p.28). Plaintiff alleges that
the charges were nolle prossed later that month. (/d. at p.29). He seeks $825,000 in
compensatory damages and the return of his property.
Plaintiff raises claims pursuant to 42 U.S.C. § 1983 for violations of his
constitutional rights. The Court screened his claims on November 22, 2016, pursuant
to 28 U.S.C. § 1915(e)(2), and found that Plaintiff alleged what to appear to be
cognizable and non-frivolous claims against Middletown Police Department, Officer
Jordan Douglass, Officer Michele Wharton, and Detective Stafford. (D.1. 12, 13).
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that:
(1) Plaintiff fails to state a claim under 42 U.S.C. § 1983; (2) the Middletown Police
Department is an improperly named defendant; (3) Wharton, Douglass, and Stafford
are protected from liability by reason of qualified immunity from suit; and (4) Plaintiff
fails to state claims under Delaware law for defamation and infliction of emotional
distress.
STANDARDS OF LAW

Plaintiff proceeds pro se and, therefore, his pleadings are liberally construed and
his complaint, "however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that those allegations "could not raise a
claim of entitlement to relief." Bell At!. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
The legal standard when ruling on Rule 12(b)(6) motions is identical to the standard
used when screening a complaint pursuant to 28 U.S.C. § 1915(e)(2)(8)(ii). See

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P.
12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(8)).
"Though 'detailed factual allegations' are not required, a complaint must do more
than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action.'" Davis

V.

Abington Mem'l Hosp., 765 F.3d 236,241 (3d Cir. 2014)

(quoting Twombly, 550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to
show that a claim has substantive plausibility. See Johnson

V.

City of Shelby,

_U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
When reviewing the sufficiency of a complaint, a court should follow a three-step
process: (1) consider the elements necessary to state a claim; (2) identify allegations
that are merely conclusions and therefore are not well-pleaded factual allegations; and
(3) accept any well-pleaded factual allegations as true and determine whether they
plausibly state a claim. See Connelly V. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.

2016); Williams

V.

BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014). Deciding

whether a claim is plausible will be a "context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S.
662,679 (2009).
DISCUSSION
The Court previously reviewed Plaintiffs allegations and found that he stated
what appear to be cognizable and non-frivolous claims. (See 0.1. 12). Nothing has
changed since that ruling. The Court has revisited the allegations, liberally construes
them, as it must, and finds that Plaintiff adequately alleges Fourth Amendment claims.
Therefore, the Court will deny that portion of the motion to dismiss that seeks dismissal
of the 42 U.S.C. § 1983 claims for failure to state a claim upon which relief may be
granted.
Plaintiff has named the Middletown Police Department as a defendant.
Defendants move to dismiss the Police Department, arguing that it is not a proper party
as it is an arm of the local municipality. This appears to be an accurate statement, see

Thomas v. Wilmington Police Oep't, 1994 WL 315232, at *2-3 (Del. Super. 1994) ("the
Wilmington Police Department may not be sued as a separate entity"); Washington v.

Wilmington Police Oep't, 1995 WL 654158, at *3 (Del. Super. 1995) (same). Therefore,
the Court will grant the motion to dismiss the Police Department and will allow Plaintiff
leave to amend his complaint to substitute the proper party in interest, the Town of
Middletown. See Boyd v. Wilmington Police Oep't, 439 F. Supp. 2d 343, 345 n.3 (D.
Del. 2006).
Defendants also seek dismissal of the claims raised against Douglass, Wharton,
and Stafford by reason of qualified immunity. The doctrine of qualified immunity shields
government officials who perform discretionary functions "from liability for civil damages

5

insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S.
800,818 (1982). "Under the two-step sequence for resolving claims of qualified
immunity, [Courts] must determine whether the alleged or proven conduct of the
defendant violated the plaintiff's constitutional rights." Carroll v. Clifford Twp., 625 F.
App'x 43,47 (3d Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009».
Second, Courts ask whether the right was "clearly established at the time of [the]
defendant's misconduct." Id. (internal quotation marks and alterations omitted). Courts
have "discretion to perform [this] inquiry in the order [they] deem most appropriate for
the particular case before [them]." Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir. 2015)
(citing Pearson, 555 U.S. at 236).
Wharton sought, and procured, a search warrant for the forensic examination of
Plaintiff's phone to obtain the phone call history from October 13, 2015, after she was
advised by Plaintiff and Plaintiffs mother that Plaintiff had asked his mother to contact
the complainant in violation of the protection from abuse order. (See 0.1. 11-1 at 4.)
Douglass sought and obtained a search warrant for Plaintiff's vehicle, after Plaintiff
informed him that he owned multiple cell phones and that the phones were located in
his vehicle. (Id. at 8).
Based upon the circumstances and facts as alleged and known to Wharton and
Douglass and included in their affidavits of probable cause, probable cause existed to
conduct a forensic examination of Plaintiffs cell phone and to search his vehicle for cell
phones. Moreover, even if probable cause did not exist, Wharton and Douglass are
entitled to qualified immunity because a reasonable officer could have believed that

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there was probable cause to support their applications, and no rational fact finder could
conclude otherwise. See, e.g., Malley v. Briggs, 475 U.S. 335, 341 (1985); Orsatti v.
New Jersey State Po/ice, 71 F.3d 400, 483 (3d Cir. 1995).

Plaintiff's factual allegations support the § 1983 claims raised against Detective
Stafford and, as to the claim against him, the Court concludes that the issue of qualified
immunity is premature. This is so in light of the warrant that the forensic examination
was for the phone call history from October 13, 2015, as opposed to the allegations that
Stafford conducted an overly invasive retrieval for cell phone information from August
14,2015 until October 15,2015. The issue is better addressed at the summary
judgment stage. See Suero v. Watkins, 2016 WL 8716667, at *9 (E.D. Pa. Feb. 12,
2016) (testimony, coupled with factual allegations, supports Plaintiff's argument that
summary judgment on the grounds of qualified immunity is premature). For these
reasons, the Court will grant the motion to dismiss on the grounds of qualified immunity
as to Wharton and Douglass and will deny the motion to dismiss as to Stafford.
Finally, Defendants move to dismiss supplemental State claims of defamation
and infliction of emotional distress. In reviewing Plaintiff's allegations, it is far from clear
that he intended to raise supplemental state claims. Nor, at the time of screening, did
the Court consider that Plaintiff raised such claims. If this is the case, then as
Defendants correctly argue, the allegations do not adequately state claims for
defamation or intentional in'fliction of emotional distress. Therefore, the Court will
consider that defamation and infliction are not raised by the complaint. To the extent
that Plaintiff intended to raise such claims, he is given leave to do so if he chooses to
file a second amended complaint.

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CONCLUSION
For the above reasons, the Court will deny in part and grant in part Defendants'
motion to dismiss. (D.1. 21). Plaintiff will be given leave to file an amended complaint.
An appropriate order will be entered.

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