Delaware attorneys request delay in Vaughn prison uprising lawsuit

Wilmington Attorney Thomas Neuberger in April announcing a suit filed on behalf of the Estate and survivors of a deceased correctional officer, as well as five fellow correctional officers, resulting from the Feb. 1 takeover by inmates at the prison near Smyrna. Special To The Delaware State News/Gary Emeigh

WILMINGTON — State attorneys Thursday asked judges to postpone an oral argument scheduled for Monday in the lawsuit filed by the survivors of the deadly Feb. 1 inmate uprising at James T. Vaughn Correctional Center.
A letter from the attorneys filed in federal court on Thursday reads, “Among other issues, the parties are discussing an amendment to the complaint.”
Although it was sent by the state’s legal team, the letter states that both plaintiffs and defendants “are jointly requesting a postponement of Monday’s arguments on the pending motions to dismiss. We would propose to report to the court on or before Dec. 15 regarding any issues that would need to be presented to the court.”
The state’s Department of Justice declined to comment on the letter.
The 52-page federal lawsuit, filed by Wilmington attorneys Thomas Neuberger and Tom Crumplar back in April, listed Lt. Floyd’s widow and children and the five other officers who were held hostage as plaintiffs. Defendants included former governors Ruth Ann Minner and Jack Markell, along with Department of Correction Commissioner Perry Phelps and three former commissioners, and state budget director Michael Jackson and his predecessors. Much of the complaint rested on the state’s alleged failure to provide a safe working environment for its employees and long ignored staffing issues within the Department of Correction and how these failures led to the incident on Feb. 1.
In early July, state attorneys tried to convince judges to dismiss the case, arguing in a filing that there’s no “constitutional” right to workplace safety. In late August, the plaintiffs’ attorneys fired back with a 71-page response that made the case for letting the lawsuit proceed unimpeded. That document 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 14th amendment.”
U.S. District Court Judge Richard Andrews was scheduled to hear the oral argument on the state’s motion to dismiss the lawsuit Monday. On Friday, Judge Andrews granted the request to postpone the argument, but no date was provided.

Canceled press conference
The request for postponement came on Thursday — the same day that a press conference to announce the filing of a federal complaint by Patricia May, a counselor who was held hostage during the incident, was canceled. Ms. May was not included in the initial lawsuit filed by survivors of the February siege.
When asked about the press conference, Mr. Neuberger, who is representing Ms. May separately, confirmed that it was canceled but declined to comment further on the suit.
Managers at The Westin Wilmington hotel said Thursday that their Caesar Rodney Room had been reserved for a press conference that was subsequently canceled.

Vaughn lawsuit specifics
At the April press conference — also in the Westin’s Caesar Rodney Room — that announced the original federal lawsuit, Mr. Neuberger claimed that his clients’ case would “paint a picture of widespread negligent behavior among top elected and appointed officials.”
He said then: “After an exhaustive two-month investigation, today we charge that for 16 years it has been the policy of two governors in Delaware deliberately not to employ enough officers to safely run Delaware’s prisons. Instead they spent up to $23 million per year forcing understaffed officers to work 16 hour shifts overtime to save money at the expense of putting their lives at risk.”
The lawsuit alleged that both former-Gov. Markell’s and Minner’s administrations sought to not only dismiss mounting issues within the DOC, but willfully obfuscate and hide the extent to which the state’s prison system was ailing.
In Mr. Neuberger’s August filing, he claimed that then-Gov. Markell put a policy in place that exacerbated an already dire overtime policy used by former-Gov. Minner. It was an alleged policy that included the instruction that “at least 90 vacant DOC positions must go unfilled at all times.” The filing also claimed that in 2016, then-Gov. Markell’s administration oversaw a policy that released approximately 100 of the most dangerous, violent offenders back into the general prison population at Vaughn, a majority of whom were placed in Building C — the site of the uprising — but due to the understaffing problems, they did not increase staffing or security measures.
Although Gov. Carney was not named as a defendant in the original complaint, it makes mention of an earlier request to have Lt. Floyd’s autopsy report privately released to his family that was ignored and comments on an alleged policy breach.
The DOC policy manual states that the warden of a given prison is to become the “ultimate commander” in the event of a major emergency and remains in charge until the situation is resolved. The complaint claims that former Vaughn warden David Pierce had approved a prison emergency response team to retake Building C and rescue the hostages within an hour of the uprising’s start. However, he was allegedly overruled by Gov. Carney who halted the rescue attempt “for presently unknown reasons.” This “enraged” the warden, the complaint says.
Gov. Carney has publicly denied this claim.
About 20 days after the uprising Mr. Pierce was reassigned.
DOC spokeswoman Jayme Gravell in April said Mr. Pierce “has been reassigned to the Bureau of Community Corrections and is performing duties equivalent to his merit pay grade. He retains the merit title of Warden V at a salary of $109,595.64, according to the state’s budget office.

State’s motion to dismiss
Attorneys representing the state have argued since the original filing that some of the defendants were protected by immunity and the statue of limitations. They also claimed that the Floyd family did not meet their burden to show “standing to assert their claims.”
A September motion to dismiss the lawsuit stated: “To establish standing, a plaintiff must prove that he has suffered ‘injury in fact,’ the injury is ‘fairly traceable’ to the defendants’ actions, and the injury will likely be redressed by a favorable decision.”
However, since the initial attempt to have the case dismissed in June, the state’s argument rested mostly on the claim that none of the plaintiffs were constitutionally entitled to a “workplace free from unreasonable risk.”
The initial filing reads: “Being a correctional officer is a dangerous job — exceedingly so. Correctional officers are faced with the unenviable task of dealing with society’s most depraved and violent individuals. To be sure, correctional officers’ lives are put at risk every day. However, no matter how tragic the event or sympathetic the cause, the remedy for violence by inmates against correctional officers does not lie in the 14th Amendment or any other constitutional provision. This action should be dismissed.”

Reach staff writer Ian Gronau at igronau@newszap.com

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