Summary
discussing use of such affidavits when defendants assert sovereign immunity
Summary of this case from Kendzierski v. De. Fed. Cred. UnionOpinion
C.A. No. OOC-06-100-JEB
Submitted: January 2, 2001
Decided: March 22, 2001
Defendants' Motion to Dismiss, Motion Granted.
Appearances:
Jaime Caraballo, Pro Se Inmate.
Robert F. Phillips, Esquire, Deputy Attorney General Attorney for Delaware Department of Corrections.
OPINION
This 22nd day of March 2001, having reviewed the parties' submissions, the Court concludes as follows:
1. Plaintiff Jaime Caraballo, an inmate at the Delaware Correctional Center, filed a complaint against the Department of Corrections and Prison Health Services (Defendants) seeking damages for failure to provide necessary medical care, resulting in the loss of vision in his right eye.
2. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Super. Ct. Civ. R. 12(b)(1). The Court infers from Defendants' arguments that the motion is also based on failure to state a claim upon which relief can be granted, under 12(b)(6). Attached to the motion to dismiss is the affidavit of Debra A. Lawhead, an insurance coverage officer with the State of Delaware.
3. In his response to the motion to dismiss, Plaintiff moved to amend the complaint by adding Warden Robert Snyder as a party defendant. The Court grants the motion to amend pursuant to Super. Ct. Civ. R. 15.
See Teat v. Neal, Del. Super., C. A. No. 93C-12-206, Quillen, J. (Letter op.) (June 8, 1995).
4. When parties to a motion to dismiss submit affidavits or other matters outside the pleadings, the motion is treated as one for summary judgment. A party is entitled to summary judgment where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The Court must view all factual inferences in a light most favorable to the non-moving party. If there is a reasonable indication that a material fact is in dispute or if it is desirable to inquire more thoroughly into the facts, summary judgment will not be granted.
See Rule 12(c) and Rule 56; Chrysler Corp. v. Aitiemp Corp., Del. Super., 426 A.2d 845, 847 (1980).
Rule 56(c); Wilmington Trust Co. v. Aetna, Del. Supr., 690 A.2d 914, 916 (1996).
Alabi v. DHL Airways, Inc., Del. Supr., 583 A.2d 1358, 1361 (1990).
Ebersole v. Lowengrub, Del. Super., 180 A.2d 467, 470 (1962), rev'd in part on proc. grounds and aff'd in part, 208 A.2d 495 (1965).
5. Defendants contend that Plaintiff attempts to raise a federal civil rights claim pursuant to 42 U.S.C. § 1983, but that a state is not a "person" for purposes of such a claim. The Court notes first that Plaintiff has not explicitly raised a § 1983 claim. Second, it is true that "[t]he State, and an individual in his or her official capacity, is not included within the definition of a "person' under 42 U.S.C. § 1983." Furthermore, a state employee cannot be held liable under § 1983 merely because those under his or her supervision violate the constitutional rights of another. Thus, the complaint in this case does not raise a viable claim under § 1983.
Dickens v. Brewington-Carr, Del. Super., C.A. No. 97C-06-063, Quillen, J. (Oct. 8, 1999) (Letter Op.) (citing Hafer v. Melo, 502 U.S. 21, 26 (1991)).
Id., at 3 (citing Sample v. Diecks, 3d Cir., 885 F.2d 1099, 1117-18 (1989)).
6. Defendants also assert sovereign immunity as a complete defense. sovereign immunity is a bar to liability claims against the State unless it is waived by the State. Under 18 Del. C. § 6511, the defense of sovereign immunity is waived "as to any risk or loss that is covered by the state insurance coverage program." Defendants submit the affidavit of Debra A. Lawhead, an insurance coverage officer with the State of Delaware, whose duties include administration of insurance coverage in instances m which the State has waived sovereign immunity pursuant to § 6511. Lawhead avers that the State has not purchased any insurance that would apply to the facts alleged in the complaint. The courts have consistently relied on such affidavits in determining that the State has not waived sovereign immunity under § 6511 because there is no insurance coverage for the risks presented. The Court concludes that sovereign immunity has not been waived.
Del. Const. of 1987, Art. I § 9; Turnbull v. Fink, Del. Supr., 668 A.2d 1370 (1995).
See also Doe v. Cates, Del. Supr., 499 A.2d 1175, 1179 (1985).
Walls v. Dept. of Corrections, Del. Supr., No. 131, 1989, Christie, C.J. (October 26, 1989)(ORDER); Reynolds v. State, Del. Super., C.A. No. 98C-021, Herlihy, J. (Nov. 10, 1999) (Mem.Op.); Jackson v. State, Del. Supr., C.A. No. 99C-12-030, Vaughn, R.J. (July 7, 2000)(ORDER).
7. The State Tort Claims Act, 10 Del. C. § 4001 § 4005, allows limited tort liability only where the State has waived immunity by some means independent of § 4001. In this case, where the State has not waived its immunity, the limited liability under the Tort Claims Act is not available to Plaintiff.
Doe v. Cates, 499 A.2d at 1181.
8. The record in its current form is at best incomplete regarding Plaintiffs medical care. However, the facts which are material to an appropriate resolution of the case are not in dispute. The Court concludes that Plaintiff has failed to raise a claim upon which relief can be granted. Further inquiry into Plaintiffs medical care could not change this result.
For all these reasons, Defendants' motion to dismiss with prejudice is hereby GRANTED .
It Is So ORDERED .