Free Answering Brief in Opposition - District Court of Delaware - Delaware


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Martin

Jeffrey

DEPARTMENT SERVICES; CERTAIN

EMPLOYEESOF

CORRECTION;

DELAWARE

INDIVIDUAL

MEDICAL

v.

Administratrix

and

MARJORIE

STANLEY

A. B. andJ. B.

j
Suite 1508
R. B;

[email protected]

Wilmington, Pennsylvania
& K. Wilson, and Martin, UNKNOWN SERVICES; TAYLOR; and MARJORIE DEPARTMENT EMPLOYEES of

l-C

(302) 777-4681
OF the P Esq. CORRECTIONAL CORRECTIONAL RAPHAEL

Delaware Plaintiffs,
.A. CORRECTION, Estate

IN

PLAINTIFFS'

Defendants.

Ave.
CORRECTIONAL (#2407) INDIVIDUAL CERTAIN

THE

FOR

19806

LAMB

of

UNITED

Case 1:08-cv-00324-GMS

DATED: August 11,2008
OF WILLIAMS; THOMAS MOTION OF THE OF as

THE

DISTRICT

LAMB asnext friend of

UNKNOWN

MEDICAL

STATES

DEFENDANT

STATE

ANSWERING

MEDICAL

BURNS,

TO

TO

DISMISS

OF

Document 6

OF

STATEDELAWARE OF

DISTRICT

BRIEF

DELAWARE

Wilmington, 521

The SERVICES.

Herbert

Filed 08/11/2008

(302)
IN
West Law G. Office Street

COURT

Feuerhake,
Feuerhake,

C. A. No. 08-CV

658-6101
DE

OPPOSITION

INC.

of

19801

herb [email protected]
P.A.
Herbert Esq. G. (#2590)

-00324-GMS

JURYTRIAL
DEMANDED

Page 1 of 9

Case 1:08-cv-00324-GMS

Document 6

Filed 08/11/2008

Page 2 of 9

TABLE OF CONTENTS Pageii Page1 Page1 Page1 Page2
I. CMS, Inc. can be a state actor and yet outside the protections of sovereign immunity
Conclusion

Page2 Page5 Page6

Certificateof Service

Case 1:08-cv-00324-GMS

Document 6

Filed 08/11/2008

Page 3 of 9

TABLE OF AUTHORITIES Cases
u.s. Supreme Court

101 LEd.2d 40 (1988)

West

v.

Atkins,

487

U.S.

42,

108

S.

Ct.

. . . Page4

Courts of Appeal
Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655,658 (3rd Cir.

2250,

. . . Page 3
District Courts Riley v. DelawareRiver and Bay Authority, 457 F. Supp.2d505 (D.Del. 2006)

. .. Page 2,3,4

Statutes
42 D.S.C. 42 US.C.

1981 1983

Page2, 3, Page2, 3, 4 Page2,3,4

Eleventh Amendment

1989)

11

and

customs,

against

on

Bums

of

STATEMENT

Amendment

SUMMARY

Thomas

or

a

about

survival

was

The

Among

CMS,

and

an Bums

Defendant

Plaintiff

May

to

policies

OF

inmate

Inc.

action

the

the

OF

30,

ARGUMENT

seeks

include

federal

defendants

FACTS

Marjorie

2006.

under

in

in

CMS,

a

recovery

violation

Delaware

violation

Constitution,

10

Inc.

Del.

named

for,

can

Case 1:08-cv-00324-GMS

of

C. prison

of

42

inter

be

in

3701

civil

D.S.C. and

the

a

who

alia,

state

rights

Complaint hence

for

1983, committed actor

violation

Document 6

and yet remain outside the "sovereign immunity" protections afforded to Statesby the Eleventh

unusual punishment prohibited by the Eighth Amendment, maintenance of wrongful practices,

Lamb next mend to her children and as administratrixof the estate as

1
this suit was of suicide should Defendant the civil proceed shortly rights CMS, after of against Inc. Thomas his The CMS, incarceration Bums. claims Inc. Mr.

medical

under

for

wrongful

purposes

malpractice.

death

of

42

under

Filed 08/11/2008

V.S.C.

10

1983

Del.

C.

liability

Page 4 of 9

42 D.S.C. 1983, including cruel and

3724,

regarding



employment

Delaware

i.e.

whether

ARGUMENT

which

psychiatric summarize, Complaint

1983.

sovereign

should

For

I.

Defendant

The

The

an

"state

River

are

problems

the

entity issue Plaintiffs

answer

and

have

immunity.

to

purposes

actors"

and

be

a

on

is

DRBA

hostile

and

to

taken

a

Bay

this

and

assert

immunity

"state that

would

in

of

The

Motion

Authority

vulnerability

was

as

work question

Section

this

that

actor,"

true

difference

have

clearly

Motion

environment,

decedent

to

Case 1:08-cv-00324-GMS

and

"Bl"

Dismiss

(hereinafter

differs is

prevented

viewed

viewed

yes.

to

to

between

ofthe

suicide,

Thomas

Dismiss,

The

from

is

in

as

Mr.

as a

opinion

analysis

the

"DRBA"), the simple

a

well

Document 6

by the Eleventh Amendment to the federal Constitution.

can be a state actor for the purpose of the application of the civil rights laws, and yet

failed to engagein appropriate conduct or maintain appropriate customs, policies, and training

CMS. Inc. can be a state actor and vet outside the protections of soverei2:n

opinion of this Court in the case of Riley v. Delaware River and Bay Authority, 457 F. Supp.2d
the

simultaneously outside the protection of sovereign immunity afforded to states and state agencies

505 (D.Del. 2006). In that case,plaintiff had brought a multi-count lawsuit against the defendant

2
analysis two one: applicable standards we applicable must to is the detennine demonstrated to first the question, second whether by question, the i.e. an entity

and

Burns's

state

Burns

we

light

as

yet

submit

(457

actor

claims

most

was

defendants

suffering

alleging,

F.Supp.2d

therein.

readily

that

favorable

under

the

inter

and

(including identifiable

In

42

facts

at

particular,

to

suicide.

V.S.C.

Filed 08/11/2008

page

alia,

Plaintiffs.

as

alleged

discrimination

512)

CMS,



as

1981

the

exhibiting

flows

To

in

Inc.)

discussion

and

Page 5 of 9

the

out

in

of

2

include

immunity.

v.

pay factors

agency

against

when state

an

noting separate

Fitchik

Delaware agency

the

agency

a

that

taken the

judgment

judgment

is

in issue

v.

in

of

its the state

The

New

effect is

River

both

from

motion

of

"Delaware-New

entitled

opinion

itself,

sovereign

Jersey

against

would

Delaware

and

existing

the

an

alter the

Bay

to

relies

Transit

attack

come

it

immunity

opinion

Third ego

would

immunity

Authority

and

upon

applicable to such a state actor.!

on

from

Rail

of

Jersey

New

Circuit

plaintiff the nevertheless

Case 1:08-cv-00324-GMS

have

several

from

the

Operations,

under

Jersey,"

holds

state,"

Having accepted the DRBA that

compact

had

state;

was

what degree of autonomy the agency has.
precedent,2 suit

s grounds

essentially

the

that

a

457

in

1983

(2)

457

state

held

which

Eleventh

a

the

873

Document 6

resolved by the language of the compact, but rather "the inquiry must focus on whether the
F.Supp.2d

the notion that the DRBA is indeed a state actor, posing the question whether 42 V.S.C. 1981 is

determining whether an agency is entitled to state immunity: (1) whether the money that would
the

state treasuries were not responsible for judgments against the DRBA, that the DRBA had the

1Seein particularfootnote7 (457 F.Supp.2dat 512),which indicatesthat defendant not did

Interestingly,in applying thesefactorsto the analysisof stateactor DRBA (an entity, it

mustbe emphasized, was purely the creationof statelegislative action),the opinion in Riley that

occurred because,the issue of "state actor" being a foregone conclusion, the 1983 claims were not attackable on a motion to dismiss but would have to await the development of an evidentiary record and a later motion for summary judgment.

3
for DRBA which status this holding, was are of at the 513-514. used not agency entitled including to guide The under to Court a the sovereign court state fact relies in law; that on and the three (3)

federal

F.Supp.2d

claims;

actor,

that

F.2d

created

the

the Amendment.

court the

655,658

same

we

issue

opinion

513. the

can

under

consequences

DRBA

of

While

surmise

(3Td

sovereign

the then

The

Cir.

eleventh states

Filed 08/11/2008

further

turned

opinion

that

1989).

as

immunity

that

this

noting

a

to

amendment

judgment

begins

the

omission

the

DRBA

that

entirely

Page 6 of 9

was

by

a

not

is

this

business

the

concede,

behalf (1988)

rather

result,

opportunity state,

Delaware from

true

Dismiss

contracts,

an

independent,

issue

District

status

paying

affairs.

and

an

of The

we

does The

stage,

entity of indeed the independent

not River etc.

would

of

Defendant

sovereign

Supreme to

Court

not

judgments

state

CMS,

entitled

The

determine

we

such

compel

and

outside

we

submit,

was most

have

have

Inc.

insist, Bay

as

Court

to

immunity

organization

CMS,

a

CMS, not out

proceeded a sovereign Noting

important

company,

state

that whether

Authority

different

that

of

yet

case

Inc.

is

Inc. actor; their

CMS,

had

more

that

is

of

in

CMS,

Case 1:08-cv-00324-GMS

can

circumstance

presumably

immunity.

against result. fully West found treasuries,"

a

the

"the

the

wholly

the

Inc.

likely

be

recourse

instant

issue Inc.

in

purpose

v.

a

was

That

that

CMS,

"person" charge

Atkins,

given

separate

is

The

of the

a

with

cas'e

the 457

matter

to for

state

sovereign

Document 6

capacityto raiseits own revenue,andthe DRBA had significant autonomy to manage its own

independent as to stand outside the protections of Eleventh Amendment sovereign immunity (a

Correctional Medical Services. Inc., 493 F.Supp.2d 740 (D.Del. 2007).
of

Finally, it is worth noting that, for purposes of analysis under 42 V.S.C. 1983, a

4
the plaintiffs of alter 487 merely determination. its actor fact V.S. ego own that immunity subject found herein of 42, affairs). CMS, the 108 that state, must to was S. Inc. 42 a Ct. physician be or V.S.C. is not is afforded 2250, not sufficiently addressed. an 1983; 101 acting agency the LEd.2d but We on but again, 40

Inc.

agency

discovery

F.Supp.2d

us

the

the

subject

under

is

to

capacity

Eleventh

not

note

therein

1983,

to

a

that

herein

creation

at

statutory

to

was 514-515,

Amendment

will

hire

see

is

not

presumably

of

for

that, and

liability.

Filed 08/11/2008

the

a

the

example

state

fire,

at

alter

court is

the

enter

legislature;

to

Indeed,

ego ferret

Motion

prevent

Price

in

into

of Riley

out

the

cases

v.

Page 7 of 9

to

states

the

it

v.

is

in

Case 1:08-cv-00324-GMS

Document 6

Filed 08/11/2008

Page 8 of 9

CONCLUSION

For all of the reasons set forth herein, it is respectfully submitted that the Motion to
Dismiss (D.I. #3) filed by Defendant Correctional Medical Services, Inc. should be DENIED.

DATE:

August 11,2008

THE PLAINTIFFS
K. Martin
K. Martin, Esq. By: s/Jeffrey Jeffrey

& Wilson, P.A.
1508 Pennsylvania l-C Delaware 19806 Ave.

Martin

Suite

Wilmington,

(302) 777-4681

i

[email protected]

s/Herbert

G.

By:

Herbert

G.

Feuerhake,

Feuerhake

Esq.

(#2407)

521 West Street
Wilmington, Delaware

(302)

658-6101

herb [email protected]

5

19801

(#2590)

Case 1:08-cv-00324-GMS

Document 6

Filed 08/11/2008

Page 9 of 9

Certificate of Service
I hereby certify that I have causedthe foregoing Plaintiffs' Answering Brief In
Opposition To Motion To Dismiss Of Defendant Correctional Medical Services, Inc. to electronically filed on August 11, 2008, and thereby served electronically upon counsel of be

record.

/s/ Herbert G. Feuerhake
Herbert G. Feuerhake, Esq.

6