Court date set in challenge to Vaughn prison officers’ lawsuit

WILMINGTON — U.S. District Court Judge Richard Andrews on Nov. 20 will hear oral arguments on the motion to dismiss the lawsuit brought against the state in connection with the Feb. 1 inmate uprising at James T. Vaughn Correctional Center (JTVCC).

The lawsuit was originally filed on April 18 by the estate of Lt. Steven Floyd and five other correctional officers victimized in the incident.

The plaintiffs are represented by Thomas Neuberger and the Wilmington law firm of Jacobs & Crumplar.

The lawsuit claims Delaware officials’ neglect of safety in prisons for more than a decade led to the uprising that left Lt. Floyd dead and the other hostages tortured and beaten. It names former governors Ruth Ann Minner and Jack Markell, along with Department of Correction Commissioner Perry Phelps and three former commissioners, state budget director Michael Jackson and his predecessors as defendants.

Responding to the lawsuit in early July, attorneys representing state officials tried to convince judges to dismiss the case, arguing that there’s no “constitutional” right to workplace safety. Court papers indicated attorneys argued that the defendants are immune from liability because they didn’t violate a clearly established right.

The plaintiffs’ lawyers hit back in late August by filing a 71-page response in federal court arguing that the case should proceed unimpeded.

The response renewed Mr. Neuberger’s push to demonstrate that the correctional officers’ were injured in the workplace by defendants’ actions and policies which “violated plaintiffs’ substantive due process rights under the fourteenth amendment.”

“The Fourteenth Amendment standard of review requires an ‘exact analysis’ of the ‘totality of facts.’ Ours is a substantive due process play containing many scenes and acts, but one which cannot be properly understood unless viewed as part of the larger scenario of the overall story,” read the response. “This is a story about public officials whose actions and policies over 16 long years destroyed the DCC.

For the last 13 of those years, they ignored repeated warnings of where their new policies would lead and instead doubled down and plowed ahead. Thus this story is a tragedy, because the end was avoidable. When such extended opportunities to do better are teamed with protracted failure even to care, such indifference is truly shocking.”

Judge Andrews will hear the argument at 11 a.m. in Courtroom 6A of the United States District Court for the District of Delaware on 844 North King St. in Wilmington. The hearing is open to the public.

Cassandra Arnold precedent?

For readers in the state about 13 years ago, this legal exchange may seem familiar. The proceedings bear a notable resemblance to the state’s handling of the lawsuit brought against it in 2005 on behalf of Cassandra Arnold, a prison counselor who was held hostage and assaulted by convicted rapist Scott Miller. Ms. Arnold escaped the 2004 incident after correctional officers stormed the room she was being held in and fatally shot Miller. The then-Gov. Minner, the former Commissioner of Correction Stanley W. Taylor and 11 others as defendants were named in that lawsuit.

As with the current lawsuit, the state’s first move was to argue for dismissal. Attorneys claimed that Ms. Arnold knew she would be working in a dangerous environment when she was hired, was paid for hazardous duty and voluntarily accepted known risks from inmates.

Again an 80-page argument brief was filed, insisting that the lawsuit be allowed to proceed. In response to the arguments, judges decided that Ms. Arnold could not sue the DOC, because the agency was constitutionally protected, but the lawsuit against the individuals was allowed to proceed.

After that decision, the state quietly settled the lawsuit with Ms. Arnold for $1.65 million.

According to this paper’s archives, the public was unaware for four weeks that the state had settled. Details emerged only after the Delaware State News pressed state officials, four weeks after the settlement occurred.

“That’s the Delaware way, to keep the public in the dark,” Mr. Neuberger, said at the time, “Open government and sunshine laws should require (settlements to be made public). Unfortunately, Delaware’s sunshine laws are very ineffective. In Delaware, only by pulling teeth does the media learn about some settlements.”

Although state agencies are required to provide settlement information if asked, then, and now, it seems the information must be directly solicited rather than being released as a matter of routine.

In Ms. Arnold’s lawsuit, her lawyers reached a settlement with the state on Nov. 1, but the arrangement was unknown to the public until Nov. 30 when a reporter asked the attorney general’s office about the case.

Attorney general’s office spokesman Carl Kanefsky said in August that information in the current suit wouldn’t be the Department of Justice’s to disseminate.

“The DOJ serves as legal counsel to state agencies, providing advice and representation as any lawyer would to a client,” he said. “Any request for information regarding settlements against state agencies should come from the agency itself.”

Except for the DOC and the State of Delaware, all other defendants in the lawsuit are individuals rather than agencies.

“Generally, the DOC does not affirmatively take steps to announce that a case has settled,” said DOC spokeswoman Jayme Gravell. “Regarding cases of interest to the public, the DOC would consider using a press release to announce a case has settled. The DOC may also refer interested persons to courts’ websites that contain publicly available information.”

According to director of policy and external affairs Bert Scoglietti, the Office of Management and Budget (OMB) doesn’t have a policy that requires them to announce large deductions from their legal contingency fund in the case of a settlement, but would respond to requests for specific information it was legally required to provide.

When the state loses a civil suit or settles a case, it pays the plaintiff out of a fund specifically used for lawsuits involving state agencies and outside legal counsel.

The state’s legal contingency fund is funded annually through the budget process.

In response to a Freedom of Information Act (FOIA) request earlier this year, the OMB said this fund was appropriated $1,071,000 for FY 2018 and that they expected to have approximately $3.2 million in it already from “carryover” funds from previous fiscal years.

According to the OMB, the state spent $3.9 million out of this fund during FY 2017. To Mr. Scoglietti’s knowledge, the fund has never been drained completely.

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