State effort to dismiss correctional officers’ lawsuit challenged

DOVER — Lawyers who represent the estate of Lt. Steven Floyd and five other correctional officers victimized in the Feb. 1 inmate uprising at James T. Vaughn Correctional Center filed a 71-page response in federal court Monday to address the state’s attempt to have their lawsuit dismissed.

Thomas Neuberger, along with the Wilmington law firm of Jacobs & Crumplar, filed the lawsuit on behalf of the plaintiffs on April 18.

The suit 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.

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.

The document filed Monday, entitled “Plaintiffs’ Consolidated Answering Brief in Opposition to Defendants’ Motion to Dismiss,” makes a case for allowing the lawsuit to proceed unimpeded. The brief renews 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.” Their argument hinges on 12 points:

• The defense motions are premature because the Court cannot conduct the required “exact analysis” of the “totality of facts” without discovery.

• The standard of review does not impose a heightened pleading standard.

• Defendants’ actions shock the judicial conscience under the Fourteenth Amendment.

• Defendants also violated the state created danger doctrine.

• Defendants are liable for failure to train and for maintaining policies which caused plaintiffs’ injuries.

• Defendants had personal involvement in and caused the constitutional violations.

• This action was timely filed within 3 months of claim accrual.

• Sgt. Floyd’s family has standing to pursue this § 1983 wrongful death action.

• The political question doctrine does not apply.

• Legislative immunity does not apply.

• Qualified immunity does not apply.

• Eleventh Amendment immunity does not apply.

The brief insists that the plaintiffs’ full case be heard so a fair trial can be given, reading:

“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. 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.”

The attorneys single out former Governor Jack Markell for specific criticism.

“I believe that we have conclusively proven the guilt of Gov. Markell and the blood is on his hands for the torture and death of Lt. Floyd,” said Mr. Neuberger on Monday.

The brief cites several policy decisions Gov. Markell allegedly made that resulted in an unsafe workplace for Department of Corrections (DOC) staff. They include: relying on overtime “rather than filling the critical shortfall of officers,” dictating that 90 vacant DOC positions must go unfilled at all times and releasing approximately 100 of the most dangerous, violent offenders back into the general prison population, a majority of whom were placed in Building C (the site of the uprising).

As of Monday afternoon, the Department of Justice declined to comment on the brief.

Mr. Neuberger anticipates seeing a reply brief from the defendants sometime in the next 30 days.

Cassandra Arnold precedent?

For newsreaders in the state about 13 years ago, this legal exchange may seem all too 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 Mr. Miller. Ex-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. 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.

If the current lawsuit follows a similar trajectory — as it has so far — the state’s next move may be to try to quietly settle it. According to this paper’s archives, the public was unaware for four weeks that the state had settled with Ms. Arnold for $1.65 million. 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 attorneys 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. At the time, ex-Gov. Minner’s office declined to comment on the case, but later said they were in consultation with the attorney general’s office and knew the settlement information would be released.

That begs the question, whose door should reporters be knocking on now?

Attorney general’s office spokesman Carl Kanefsky, said that the information 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, but would respond to requests for specific information it was legally required to provide.

Legal contingency fund?

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.

“The line item appropriation for legal fees is funded through the Joint Finance Committee each year based on a recommendation from our office,” noted Mr. Scoglietti.

In response to a Freedom of Information Act (FOIA) request, 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.

Former OMB director Jennifer Davis told this paper in 2005 that there was about $5.4 million left in the fund after paying out the $1.65 million to Ms. Arnold.
State transparency

After Ms. Arnold’s 2005 settlement, Mr. Neuberger said the state should be announcing settlements and their amounts if it’s to be held accountable.

“Only through information can good government be achieved,” Mr. Neuberger said at the time.

Apparently, a cohort of lawmakers felt the same way, because they were floating a bill at the time to help make the settlement process more transparent. More than 20 legislators from both chambers and both parties co-sponsored House Bill 192 in 2005, which would have required the state to publish a notice and brief description of any proposed settlement and allow 30 days for the public to submit written comments on the proposed deal.

“There is some need for increased public oversight of those processes,” former-Rep. William A. Oberle, R-Newark said at the time. “What concerns me is these things happen behind closed doors. You have these ongoing and continuous string of lawsuits costing taxpayers millions of dollars and none of us knew the circumstances around what was going on.”

Ex-Rep. Oberle hoped also to create a public board to review settlements of a sensitive nature such as Ms. Arnold’s case — feeling that the state should strike a balance between the need for privacy and the publics’ right to know how its money is being spent.

According to General Assembly records, HB 192 never made it out of committee. It would seem once the idea was set down, it wasn’t picked back up either. The ACLU, who supports a requirement for the state to release settlement information as a matter of routine, says they are not aware of any such policy currently on the books.

“The ACLU of Delaware stands firmly on the side of government transparency,” said the organization’s executive director Kathleen MacRae. “If a government office or agency settles a lawsuit, the terms of the settlement should be made public, including any monetary award that must be paid.”

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