Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:06-cv-00787-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM T. SMITH, Plaintiff, v. JANE BRADY, STAN TAYLOR, REBECCA MCBRIDE Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-787-GMS JURY TRIAL DEMANDED

MOTION OF DEFENDANT JANE BRADY TO DISMISS PLAINTIFF'S COMPLAINT1 Defendant, Jane Brady, by and through undersigned counsel, respectfully moves this Honorable Court to enter an Order, pursuant to Rules 12(b)(1) and 12 (b)(6) of the Federal Rules of Civil Procedure, dismissing Plaintiff's Complaint with prejudice. In support thereof, Defendant Brady represents as follows: 1. William Smith ("Plaintiff") filed a Complaint pursuant to 42 U.S.C. §

1983 and a Motion to Proceed In Forma Pauperis on December 22, 2006. (D.I. 1, 2). Plaintiff named former Attorney General Jane Brady, former Commissioner of Corrections Stan Taylor, and Department of Correction ("DOC") employee, Rebecca McBride as defendants in the action. The Court issued a service Order on February 8, 2007. Service was executed for Jane Brady ("Defendant Brady") on May 11, 2007. (D.I. 8). 2. Plaintiff's Complaint contains allegations against Defendant Brady in

paragraph No. 1 under "Statement of Claim." Specifically, Plaintiff alleges that his due
Moving defendant waives the right to file an Opening Brief and submits this Motion in lieu thereof pursuant to Local Rule 7.1.2. Moving defendant reserves the right to file a Reply Brief.
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process rights were violated by Defendant Brady because he was denied an enhanced penalty hearing before sentencing. Plaintiff alleges this "stripped [him] of his liberty to early freedom ad a lengthy 33 year sentence with 23 years mandatory." (D.I. 2 at p. 3). The Complaint contains no further allegations against Defendant Brady. The following are Defendant Brady's arguments in support of dismissal of the Complaint. 3. In deciding a motion to dismiss, the Court should dismiss the complaint

"only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint. Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). Though pro se pleadings are entitled to leniency, such pleadings must still place a defendant on notice as to what wrong he has supposedly committed. Riley v. Jeffes, 777 F.2d 143, 148 (3d Cir. 1985) ("[I]f a plaintiff presents only vague and conclusory allegations, the complaint should be dismissed."). I. Plaintiff Has No Cause of Action to Challenge the Consitutionality of His Criminal Sentence Under 42 U.S.C. § 1983 Because His Sentence Has Not Been Invalidated. Plaintiff's claims against Defendant Brady are barred by Heck v.

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Humphrey, 512 U.S. 477 (1994). Plaintiff is precluded by Heck from bringing an action for damages in federal court pursuant to 42 U.S.C. § 1983 when "a judgment in favor of the defendant would necessarily imply the invalidity of his conviction or sentence." Heck, 512 at 486-87. Claims for damages pursuant to § 1983 alleging unconstitutional conviction or imprisonment must be dismissed unless the plaintiff can prove that the conviction was "reversed on direct appeal, expunged by executive order, declared invalid

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by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of writ of habeas corpus." Id. 5. Plaintiff's conviction has not been overturned, reversed, expunged, or On the contrary, Plaintiff's conviction and sentence has been

called into question.

repeatedly upheld beginning with his direct appeal of his criminal conviction. Smith v. State, 582 A.2d 936 (Del. 1989). Plaintiff's first application for postconviction relief pursuant to Rule 61 of the Superior Court Rules of Civil Procedure was denied and that denial was affirmed on appeal to the Delaware Supreme Court. Smith v. State, 623 A.2d 1143 (Del. 1993); State v. Smith, 1992 WL 423845 (Del. Super. Ct. 1992)(Exhibit "A"). Plaintiff's second application for postconviction relief pursuant to Rule 61 was also denied in the Superior Court and that denial was also affirmed on appeal to the Supreme Court. Smith v. State, 670 A.2d 1340 (Del. 1995). Plaintiff's Motion for Correction of Sentence pursuant to Superior Court Civil Rule 35(a) was denied by the Superior Court and that denial was affirmed on appeal to the Supreme Court. Smith v. State, 738 A.2d 239 (Del. 1999). Finally, Plaintiff's habeas petition in the District Court for the District of Delaware was dismissed on September 4, 2002. Smith v. Snyder, 2002 WL 31005858 (D.Del.)(Exhibit "B"). 6. Plaintiff asserts in his Complaint that the "District Court Judge remanded

[his] case to Superior Court for correction." (D.I. 2 at p.2). Plaintiff does not cite to any case or provide any date for this remand order. Counsel for Defendants has searched for such an order, and despite discovery of the extensive history documented above, has been unable to find any District Court order remanding Plaintiff's case for correction. 7. Plaintiff is challenging his sentence and a determination by this Court that

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Plaintiff was denied due process during his sentencing phase would imply that his subsequent sentence was invalid. Absent a showing that his conviction or sentence has been invalidated, Plaintiff's sole remedy for such a challenge is by way of habeas corpus. Preiser v. Rodriquez, 411 U.S. 475, 93 (1973). Plaintiff has no cause of action under § 1983 and Plaintiff's due process claim against Defendant Brady must be dismissed for failure to state a claim. II. 8. The Plaintiff Fails to Allege Any Personal Involvement by Defendant Brady and his Claim Must Fail Under § 1983. Regardless of the type of § 1983 claim, the plaintiff must show personal

involvement by the defendant to succeed. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The allegations of personal involvement must also be pled with particularity, "stating the time, place, and persons responsible for the violations." Boykins v. Ambridge Area School Dist., 621 F.2d 75, 80 (3rd Cir. 1980). Plaintiff can not recover against a state defendant unless he can show some causal connection between that state defendant and the alleged wrongdoing. Id. 9. Plaintiff's complaint fails to assert any personal involvement by

Defendant Brady.2 Plaintiff alleges that Defendant Brady denied him of his "enhance penalty hearing before sentencing," but he does not state a causal connection between this alleged denial and Defendant Brady. While an Attorney General supervises prosecutors and makes determinations as to criminal charges, a determination of proceedings for sentencing would be at the discretion of the presiding judge and the not the Attorney General.
It is noteworthy that Jane Brady was not the Attorney General when Plaintiff was sentenced. Plaintiff was sentenced in 1988. At this time, the Office of Attorney General was held by Charles M. Oberly, III. Defendant liberally construes the Complaint and presumes Plaintiff intended to bring the claim against the Office of Attorney General. 4
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10.

A liberal reading of the Complaint could lead to the assumption that

Plaintiff is attempting to name Defendant Brady because of her supervisory position as Attorney General; this theory of liability would be based on respondeat superior. It is well established that the theories of respondeat superior and vicarious liability are not acceptable bases for liability under § 1983. See, e.g., Polk County v. Dodson, 454 U.S. 312, 325 (1981). 11. Without identifying how she participated in or personally directed the

events which Plaintiff claims deprived him of constitutional rights, Defendant Brady cannot be held liable. Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990); Rode, supra. Plaintiff's Complaint fails to sufficiently allege personal involvement by Defendant Brady and liability in a § 1983 action can not be predicated on respondeat superior. Plaintiff's claims against Defendant Brady must be dismissed for failure to state a claim upon which relief can be granted. III. 12. Defendant Brady is entitled to Absolute Immunity for Claims Brought Against Her in Her Official Capacity. Even assuming arguendo that Plaintiff could prove personal involvement

by Defendant Brady, actions undertaken by an Attorney General in his/her official capacity to initiate and prosecute criminal charges enjoy absolute immunity under state law pursuant to 10 Del. C. § 4001. This immunity extends to federal law claims initiated pursuant to 42 U.S.C. § 1983. Weber v. Oberly, 571 A.2d 788, (Del. 1989) (citing Imbler v. Pachtman, 424 U.S. 409, 424 (1976)). 13. Decisions made by the Attorney General with respect to the prosecution of

the criminal charges against Plaintiff were made in an official capacity as Attorney General. An Attorney General is absolutely immune from suits brought through 42

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U.S.C. § 1983 for such decisions. Plaintiff's actions against Defendant Brady must be dismissed. IV. Defendant Brady is Entitled to Eleventh Amendment Immunity and the Claims Should Be Dismissed For Lack of Subject Matter Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(B)(1). "The Eleventh Amendment limits federal judicial power to entertain

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lawsuits against a State and, in the absence of congressional abrogation or consent, a suit against a state agency is proscribed." Neeley v. Samis, 183 F. Supp. 2d 672, 678 (D. Del. 2002) (quoting Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-100, (1984)). The United States Congress can waive the states' sovereign immunity, and therefore, their Eleventh Amendment immunity through the Fourteenth Amendment. However, only a clear indication of Congress' intent to waive the states' immunity will produce this result. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-56 (1996). No such clear intent can be seen in 42 U.S.C. § 1983. In fact, a review of the statute demonstrates that Congress did not intend to waive the states' immunity. The statute facially allows suits only to be brought against "persons." 42 U.S.C. § 1983. 15. Plaintiff does not specify whether he names Defendant Brady in her However, inclusion of her "Attorney General" title

official or individual capacity.

compounded with claims that relate to his criminal sentencing indicate that he is naming her in her official capacity. As Attorney General, she is a state official acting under color of state law. A suit against Defendant Brady in her official capacity as Attorney General is treated as a suit against the State. In her official capacity, she is not a "person" for purposes of 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).

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16.

Defendant Brady is entitled to Eleventh Amendment Immunity for claims The

brought against her in her official capacity as Attorney General of Delaware.

Federal District Court is without subject matter jurisdiction to hear Plaintiff's officialcapacity claims against Defendant Brady and dismissal is appropriate. Conclusion 17. Plaintiff's Complaint fails to state a 42 U.S.C. § 1983 claim against Even if

Defendant Brady because his criminal sentence has not been invalidated.

Plaintiff did have a cause of action, his Complaint fails to allege the requisite personal involvement of Defendant Brady in the alleged denial of his enhanced penalty hearing. Further, even in Plaintiff had alleged personal involvement, Defendant Brady has absolute immunity protections and is further shielded from liability by the Eleventh Amendment. WHEREFORE, for the foregoing reasons, Defendant Brady moves this Honorable Court to dismiss the claims against her with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stacey Xarhoulakos________ Stacey Xarhoulakos, # 4667 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, De 19801 (302) 577-8400 Dated: May 31, 2007 Attorney for Defendant Jane Brady

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM T. SMITH, Plaintiff, v. JANE BRADY, STAN TAYLOR, REBECCA MCBRIDE Defendants. ) ) ) ) ) ) ) ) ) ) ORDER Upon Defendant Jane Brady's Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12 (b)(1) and 12(b)(6) (the "Motion"); and it appearing that good and sufficient notice of the Motion has been given; and after due deliberation thereon: IT IS HEREBY ORDERED as follows: 1. 2. The Motion is GRANTED. The Complaint filed in the above-captioned action is DISMISSED WITH PREJUDICE as to Defendant Jane Brady. SO ORDERED this _________ day of ______________, 2007.

C.A. No. 06-787-GMS

________________________________ The Honorable United States District Court

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CERTIFICATE OF SERVICE I hereby certify that on May 31, 2007, I electronically filed Motion to Dismiss of Defendant Jane Brady with the Clerk of Court using CM/ECF. I hereby certify that on May 31, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant: William T. Smith, III 108 Carvel Dr., Apt. # 2 New Castle, DE 19720 Pro Se /s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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