Lewis v. Dover Police Department

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GARY LEWIS, ) ) Plaintiff, ) ) v. ) C.A. No. K23C-01-019 NEP ) DOVER POLICE DEPARTMENT, ) ) Defendant. )

Submitted: May 25, 2023 Decided: August 2, 2023

ORDER

Upon Defendant’s Motion to Dismiss

GRANTED

Before this Court is the motion of Defendant City of Dover (hereinafter “Defendant”)1 seeking dismissal of a defamation action brought by Plaintiff Gary Lewis (hereinafter “Plaintiff”). Defendant asserts immunity from suit under the County and Municipal Tort Claims Act (hereinafter the “CMTCA”), 10 Del. C. §§

1 Defendant is correct that the City of Dover, rather than the City of Dover Police Department, is the appropriate entity for suit. “It is well established that municipal police departments are ‘not separate entities for the purpose of suit, but rather, are distinct departments or entities of the [city or municipal] government [themselves].’” Gregory v. Dover Police Dep’t, 2012 WL 6915204, at *2 n.7 (Del. Super. Dec. 31, 2012) (alterations in original) (quoting Breitigan v. State of Delaware, 2003 WL 21663676, at *2 (D. Del. July 16, 2003)); see also Thomas v. Wilmington Police Dep’t, 1994 WL 315232, at *3 (Del. Super. June 3, 1994) (“This Court finds that the Wilmington Police Department may not be sued as a separate entity.”). However, “[g]iven the liberal standard for construing pro se pleadings, the Court will treat [Plaintiff’s] claims against the [Dover] Police Department as claims against the [City of Dover].” Strong v. Dunning, 2013 WL 3481452, at *1 n.1 (Del. Super. June 27, 2013).

4010–4013. Since Defendant is immune from suit under the CMTCA, Defendant’s motion to dismiss is GRANTED.2 BACKGROUND 1. Plaintiff filed a one-page complaint and multiple exhibits on January 13, 2023.3 The Complaint alleges that on January 14, 2021, the City of Dover Police Department (hereinafter the “Department”) posted Plaintiff’s image in a news bulletin “associated with Operation Rise and Shine” despite knowing that Plaintiff was not a co-defendant in, or otherwise associated with, Operation Rise and Shine.4 The image was uploaded on the Department’s official website and distributed by various news outlets.5 Plaintiff seeks an order asking Defendant to remove, retract, or redact his image “from all new media sites associated with the Rise and Shine [sic]” and seeks one million dollars in damages.6 2. Defendant filed a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6) on February 16, 2023.7 Plaintiff filed a response on March 2, 2023.8 At Defendant’s request, the Court heard oral argument on this motion and a pending motion to dismiss an action against the Smyrna Police Department9 on May 25, 2023.

2 Defendant also suggested at oral argument that it might be entitled to dismissal based on the statute of limitations, but this argument was not raised in Defendant’s written motion, and the Court need not reach it in any event in light of the dismissal of the action on immunity grounds. 3 Compl. (D.I. 1). 4 Id. ¶ 3. The press release at issue described “Operation Rise-N-Shyne” as a multi-jurisdictional investigation of illegal drug and gang activity leading to over 50 arrests, and includes Plaintiff’s photograph among the photographs of individuals arrested in the course of the operation. Id. Ex. L at 2–3, 6. Plaintiff has also attached a transcript of a hearing in which a Deputy Attorney General stated that he was not consulted regarding the contents of the press release and that he did not understand why some of the names were included. Id. Ex. N at 21:5–15. 5 Compl. ¶ 3. 6 Id. ¶¶ 4–5. 7 Def’s Mot. to Dismiss Pl.’s Compl. (D.I. 6). 8 Resp. to Def. Mot. to Dismiss Claim (D.I. 8) [hereinafter “Pl.’s Resp.”]. 9 See Gary Lewis v. Smyrna Police Department, K23C-01-017 NEP (Del. Super.).

STANDARD OF REVIEW 3. When deciding a 12(b)(6) motion to dismiss, the Court accepts all well- pleaded factual allegations as true and will grant the motion only if the plaintiff cannot recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.10 ANALYSIS11 4. 10 Del. C. § 4011(a) provides that “[e]xcept as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages.” 10 Del. C. § 4012, however, creates three exceptions to that immunity, pursuant to which a governmental entity “shall be exposed to liability for its negligent acts or omissions causing property damage, bodily injury or death in the following instances:” (1) In its ownership, maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft or other machinery or equipment, whether mobile or stationary. (2) In the construction, operation or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation. (3) In the sudden and accidental discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. 5. The Delaware Supreme Court has made clear that “the activities listed

10 Anthony v. City of Dover, 2015 WL 511170, at *1 (Del. Super. Jan. 29, 2015) (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)). 11 While the cases have not been consolidated, Plaintiff’s case against the Town of Smyrna (pleaded as a suit against the Smyrna Police Department), see supra note 9, is subject to dismissal for nearly identical reasons.

in § 4012 are the only activities as to which municipal immunity is waived.”12 Moreover, “the wording of the § 4012 exceptions are [sic] ‘subject to strict construction’ so as not to undermine the broad immunity granted by the Act.”13 6. In addition, 10 Del. C. § 4011(c) provides that a government employee “may be personally liable for acts or omissions causing property damage, bodily injury or death in instances in which the governmental entity is immune under this section, but only for those acts which were not within the scope of employment or which were performed with wanton negligence or wilful and malicious intent.” 7. Here, Plaintiff seeks damages for defamation arising from one of the Department’s online press releases. He has not attempted to argue that any of the § 4012 exceptions apply, and the Court agrees with Defendant that none of the exceptions can reasonably be read to apply to a defamation claim. Plaintiff argues that Defendant can be held liable because individual Department officers acted with willful and malicious intent within the meaning of § 4011(c).14 That provision, however, provides only for the personal liability of government employees and does not expose government entities to liability for acts of their employees for which they are otherwise immune.15 Since Plaintiff’s action is against the City of Dover and not any individual government employees, 10 Del. C. § 4011(c) has no bearing on the immunity question presented here.

12 Fiat Motors of N. Am., Inc., v. Mayor & Council of City of Wilmington, 498 A.2d 1062, 1066 (Del. 1985). 13 Walls v. Rees, 569 A.2d 1161, 1167 (Del. 1990) (quoting Sadler v. New Castle Cnty., 565 A.2d 917, 923 (Del. 1989)). 14 See Pl.’s Resp. at 4–5. 15 See Robinson v. Clemons, 987 F. Supp. 280, 284 (D. Del. 1998) (“Contrary to plaintiff’s assertion, the courts have held [§ 4011(c)] was not intended to strip the governmental entity of its immunity. . . . In addition, given the sweeping immunity granted by the Tort Claims Act, the more reasonable interpretation is that the exception refers only to direct liability, not to derivative liability.”); Schueler v. Martin, 674 A.2d 882, 889 (Del. Super. 1996) (“A local government remains immune under §§ 4011 and 4012 even if its employee’s conduct is reckless/wanton or willful and malicious.”).

8. Because the City of Dover is immune from damages liability and no exception to immunity applies, Plaintiff cannot recover damages under any reasonably conceivable set of circumstances and Defendant is thus entitled to dismissal of the damages claim.16 Wherefore, for the foregoing reasons, Defendant’s motion to dismiss is GRANTED, and Plaintiff’s Complaint is therefore DISMISSED. IT IS SO ORDERED.

NEP:tls oc: Prothonotary cc: Gary Lewis, Pro Se – Via U.S. Mail Daniel A. Griffith, Esquire - Via File & ServeXpress Thomas Wallace, Esquire - Via File & ServeXpress

16 While not addressed by the parties, the Court notes that the CMTCA provides immunity only from damages liability, and thus has no applicability to Plaintiff’s request for the removal of his image. See 10 Del. C. § 4011(a) (“[A]ll governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages.” (emphasis supplied)). However, that request is a request for injunctive relief, which “is not relief which the Superior Court, a court of law, can grant.” Phillips v. Conley, 2004 WL 692656, at *2 (Del. Super. Mar. 2, 2004), aff’d, 860 A.2d 811 (Del. 2004) (TABLE).