Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:06-cv-00743-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. COUNSELOR DOUGH PETIFORD, SUPERVISOR KATHY DOATELLI, DIRECTOR JAY SYLVESTER, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 06-743- SLR

TRIAL BY JURY OF SIX DEMANDED

DEFENDANTS, DOUGH PETIFORD, KATHY DOATELLI AND JAY SYLVESTER'S, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) Defendants, Dough Petiford, Kathy Doatelli and Jay Sylvester, move this Court to dismiss Plaintiff's Complaint, as a matter of law, and in support thereof, avers as follows: I. BRIEF PROCEDURAL HISTORY Pro Se inmate Plaintiff, Raymond L. Bruton, filed a complaint against several defendants, including Dough Petiford, Kathy Doatelli and Jay Sylvester (hereinafter referred to as "Moving Defendants") on December 7, 2006, alleging purported violations of his civil rights resulting from an altercation with another inmate, resulting in disciplinary action against him. On December 14, 2006, this Court entered an Order permitting Plaintiff to proceed In Forma Pauperis. Thereafter, on April 16, 2007, this Court, following a review of Plaintiff's Complaint dismissed all claims against all defendants, except for Moving Defendants, Dough Petiford, Kathy Doatelli and Jay Sylvester. See, Complaint, a copy of which is attached hereto marked as Exhibit "A". The Court is permitting claims for purported racial discrimination and equal

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protection violations to proceed against Moving Defendants. II. BRIEF FACTUAL HISTORY Plaintiff was incarcerated at the Howard R. Young Correctional Center. On March 16, 2006, Plaintiff had an argument with another inmate. (Complaint, Statement of Facts ¶1). Plaintiff claims the argument resulted because a disagreement with another inmate, resulting in this inmate's `attitude toward resident Bruton". (Complaint, Statement of Facts ¶3). Both inmates are white and Plaintiff Bruton is African American. (See, Complaint, Statement of Facts). During the course of the argument racial comments were directed toward Plaintiff. (Complaint, Statement of Facts ¶ 5). Plaintiff wrote a grievance following the argument. He did not receive a reply from Sgt. Moody. (Complaint, Statement of Facts ¶ 8). Burton wrote Warden William complaining about the March 21, 2006 incident. Mr. Bruton was advised that the complaint was sent to Defendant Sylvester on March 28, 2006 (Complaint, Statement of Facts ¶ 9). Mr. Sylvester also wrote to

State Director Buskirk regarding Double Jeopardy issues. (Complaint, Statement of Facts ¶ 10). Plaintiff also relates a conversation he had with Defendant Sylvester, whereby Mr. Bruton walked with Mr. Sylvester to Dorm #1. As they walked, Defendant Sylvester, in responding to Mr. Bruton's question why the incident was going to be resolved in the resident's favor responded "It's about you, not about someone else" and then also advised to "work through it". (Complaint, Statement of Facts ¶ 11). As of April 3, 2006, Plaintiff was still on the "LE" yet others who were on "LE" for far less­and more, were off the "LE". (Complaint, Statement of Facts ¶ 12).

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Plaintiff claims that Defendant Dough checked his essays, keeping him on the LE. However, the Department of Corrections moved him to Dorm #2, for no apparent reason. (Complaint, Statement of Facts ¶ 13). On April 5, 2006, Supervisor Frank removed Plaintiff from the LE and placed in him in orientation for one week. (Complaint, Statement of Facts ¶ 14). Plaintiff claims that no `accountability' was placed on the other inmates resulting from the March incident, claiming the matter was handled `very racist and discriminatory" toward Plaintiff. This includes "intimidation by c/o Burns, and this Key Program, reeks of racial discrimination toward the black residents." (Complaint, Statement of Facts ¶ 15). Plaintiff alleges that the `grievance is going to run its course, resident will not sign off on it." (Complaint, Statement of Facts ¶17). III. LEGAL ANALYSIS A. Legal Standard

In determining whether a motion to dismiss should be granted, a district court must accept as true, "all factual allegations in the Complaint and all reasonable inferences that can be drawn from them." Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988). The court should grant the motion to dismiss if, "no relief could be granted under any set of facts which could be proved." Id. (Citing D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3rd Cir. 1984)). Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Thomas v. Ford Motor Company, 70 F.Supp.2d 521 (E.D. 1999) (citing Neitzke v. Williams, 490 U.S. 319, 326-327 (1989). The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the

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case. Kost v. Kozakiewicz, 1 F.3d 183 (3d Cir. 1993). In particular, the Court looks to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988). However, the Court need not "credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3rd Cir. 1997). Defendants Dough, Petiford and Sylvester assert that Plaintiff's Complaint, taking the allegations as true for purposes of this motion, without admitting the same, fail to state a claim upon which relief may be granted. Therefore, for the reasons set forth below, Plaintiff's claims should be dismissed as a matter of law. B. Plaintiff Failed to Exhaust His Administrative Remedies As Required By The Prison Litigation Reform Act Pursuant to the Prison Litigation Reform Act, prisoners must exhaust "such administrative remedies as are available" before bringing actions "with respect to their prison conditions." 42 U.S.C. § 1997e(d)(2). In an opinion authored by Justice Ginsburg, the United States Supreme Court held that this exhaustion requirement applies to all inmate suits seeking redress for prison circumstances or occurrences, whether the suits involved general circumstances or particular episodes, and whether the suits alleged excessive force, actual physical prison conditions, or some other alleged wrongdoing. Correction Officer Porter, et. al. v. Nussle, 534 U.S. 516 (2002). The exhaustion requirement is mandatory. Id. Moreover, exhaustion of administrative remedies means completing all available appeals, even if prison officials do not respond. See Davis v. Warman, et. al., 49 Fed. Appx. 365, 366 (3d Cir. 2002); Brown v. Morgan, F.3d 595, 596 (6th Cir. 2000).

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Taking the facts as alleged by Plaintiff as true, for purposes of this motion only, without admitting the same, Plaintiff claims that he complained about the incident which was sent to Defendant Sylvester for a response. He also wrote to State Director Buskirk. He later states that the grievance "is going to run its course, resident will not sign off on it". Plaintiff has failed to pursue the administrative process, through appeal. In fact, Plaintiff has plead that he will not `sign off on it', and therefore, is thwarting the administrative process. Because he has not exhausted his administrative remedies, through appeal, his Complaint must be dismissed, as a matter of law. See, Davis, supra. C. Plaintiff's Claims for Equal Protection/Race Discrimination Should be Dismissed as a Matter of Law.

Plaintiff makes a claim for purported violations of the Equal Protection clause due to his race ­ African American. As succinctly set forth by Judge Farnan in a recent decision: "Prisoners are protected under the Equal Protection clause of the Fourteenth Amendment from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed. 2d 935 (1974). In order to raise a valid equal protection claim, a plaintiff must show that "he has been treated differently from others with whom he is similarly situated and that the unequal treatment was a result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). To demonstrate a violation of the Equal Protection clause, a plaintiff must show more than discriminatory impact. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed. 2d 450 (1977). "[A] official act is not unconstitutional solely because it has a racially disproportionate impact." Williams v. Federal Bureau of Prisons and Parole Comm'n, 85 Fed.Appx. 299, 305 (3rd Cir. 2004) (citations omitted). Dickens v. Commissioner Stan Taylor, et al., 464 F.Supp.2d 341 (D.Del. 2006). A review of Plaintiff's Complaint fails to reveal any allegations, even taken as true, of intentional or purposeful discrimination directed to Mr. Bruton. For example, Plaintiff claims, as a result of the altercation with the two white residents, that he is being discriminated against as

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he is being held accountable, yet the other (white) residents did the same thing but "nothing is being said or done to them". (See Complaint, Statement of Facts). Plaintiff then alleges that "the matter was handle very racist and discriminatory toward Petitioner, which was blatent and outrageous violations." (See Complaint, Statement of Facts). He also alleged that while he was still in LE, several others, with "far less and more" were off LE. (See Complaint, Statement of Facts). Additionally, Plaintiff alleges that Defendant Sylvester stated "it's about you, not about someone else". (See Complaint, Statement of Facts). Plaintiff simply sets forth bald allegations that his treatment was racist and discriminatory, yet fails to set forth any specific allegations that the actions taken were intentional or purposeful. Even Director Sylvester's comment fails to evidence any intentional or purposeful conduct to discriminate against Plaintiff. Furthermore, Plaintiff has not set forth any allegations to support that he was treated differently than others ­ similarly situated. Finally, as noted above, an act is not unconstitutional simply because it has a racially disproportionate impact. See, Williams, supra. Accordingly, just because the result appears racially disproportionate does not support a finding of unconstitutional activity. Furthermore, there are no allegations set forth against Defendant Petiford in the body of the complaint. Accordingly, all claims against her must be dismissed, with prejudice. The only allegation against Defendant Dough is that he checked the residents "essays" and kept Plaintiff on the LE. There are no allegations that his conduct was racially motivated. Taking Plaintiff's allegations as true, for purposes of this motion only, without admitting the same, Plaintiff's Complaint fails to set forth a meritorious claim for a purported violation of the equal protection clause, and therefore, must be dismissed, as a matter of law.

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IV.

CONCLUSION For all of the foregoing reasons, Defendant's Motion to Dismiss should be granted, as a

matter of law, and, Plaintiff's claims against Defendants Dough Petiford, Kathy Doatelli and Jay Sylvester should be dismissed as a matter of law, with prejudice. Reger Rizzo Kavulich & Darnall LLP

By:

/s/ Rochelle Libid Gumapac Rochelle Libid Gumapac, Esquire Bar I.D. No. 4866 Suite 202 1001 Jefferson Street Wilmington, DE 19801 (302) 652-3611 (phone) (302) 652-3620 (fax) [email protected] Attorneys for Defendant, Jay Sylvester

Dated: June 15, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. COUNSELOR DOUGH PETIFORD, SUPERVISOR KATHY DOATELLI, DIRECTOR JAY SYLVESTER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ORDER AND NOW, this ____ day of __________, 2007, upon consideration of Defendants, Dough Petiford, Kathy Doatelli and Jay Sylvester's Memorandum of Law in Support of their Motion to Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6) and Plaintiff's response thereto, if any, it is hereby ORDERED and DECREED that said Motion is GRANTED and Plaintiff's Complaint is dismissed, with prejudice. By The Court:

C.A. No.: 06-743- SLR

TRIAL BY JURY OF SIX DEMANDED

_________________________________ J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RAYMOND L. BRUTON, Plaintiff, v. COUNSELOR DOUGH PETIFORD, SUPERVISOR KATHY DOATELLI, DIRECTOR JAY SYLVESTER, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 06-743- SLR

TRIAL BY JURY OF SIX DEMANDED

CERTIFICATE OF SERVICE I, Rochelle Gumapac, Esquire hereby certify that on the 15th day of June 2007 a true and correct copy of Defendants Dough Petiford, Kathy Doatelli and Jay Sylvester's Memorandum of Law in Support of Their Motion to Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6) was served electronically and via first class mail, postage prepaid, upon: Raymond L. Bruton SBI #069025 Unit 2-Q-21 H.R.Y.C.I. PO Box 9561 Wilmington, DE 19809

Reger Rizzo Kavulich & Darnall LLP By: /s/ Rochelle Libid Gumapac Rochelle Libid Gumapac, Esquire Bar I.D. No. 4866 Suite 202 1001 Jefferson Street Wilmington, DE 19801 (302) 652-3611 (phone) (302) 652-3620 (fax) [email protected] Attorneys for Defendant, Jay Sylvester

Dated: June 15, 2007

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