Opinion
C.A. No. 06C-10-112-JOH.
Submitted: April 26, 2007.
Decided: September 27, 2007.
Upon Motion of Defendant Kay to Dismiss — DENIED WITHOUT PREJUDICE Upon Review by the Court the Actions Against Defendants Justiniano, Holden, and Pfeifer — DISMISSED WITH PREJUDICE Upon Motion of Plaintiff to Amend — DENIED Upon M otion of Plaintiff for Discovery and Request for Adm isions — STAYED
Carl J. Haskins, Jr., Wilmington, Delaware, Pro Se.
Linda M. Carm ichael, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, attorney for defendants
MEMORANDUM OPINION
Carl Haskins has filed suit against Jeff Kay and Allison Justiniano both of whom are probation officers. Subsequently he filed suit against Dwight Holden, Parole Board Chairperson, William Pfeifer, Board of Parole member and three "John Doe" Board members. He has also now moved to add another defendant, Timothy Barron, Esquire., former Deputy Attorney General. Barron was the prosecutor in the rape charges brought against Haskins in the 1980's. He has two other motions pending in this matter. He seeks a request for admissions and for discovery. The Court stayed those matters pending resolution of a motion to dismiss.
Kay, of the two probation officers, has been served. Service was non-est on Justiniano, and Haskins has made no effort at follow-up service. Holden and Pfeifer have been served. Kay has filed a motion to dismiss based on sovereign immunity. Neither Pfeifer or Holden have answered the complaint nor filed any motions. For reasons stated herein, the Court will, nevertheless, address Haskins' action against them.
Haskins filed a writ of mandamus in September 26, 2006. The respondent was the Department of Correction. On May 30, 2007 another judge entered an order ostensibly denying Haskins' request for leave of the Court to do something. Included in an order signed by that judge was sentence stating Haskins had failed to state a claim upon which relief could be granted. The order is unclear about the "reach" of that dismissal.
C.A. No. 06M-09-098.
It would appear, however, that the May 30 order did not dismiss all of Haskins' claims. On June 27, 2007, in a bench ruling dismissing the mandamus action, Haskins asked about this matter pending before me. The other judge when hearing of the separate matter before me precipitously dismissed the claims in this action. Haskins has apparently appealed the June 27th order.
That dismissal action of this action and the appeal create a confusing procedural posture for this case. The motion to dismiss which defendant has tendered is being denied without prejudice for the reasons stated in this opinion. To the extent it can, the Court is VACATING that June 27th dismissal of this action as improvidently done.
The Court has determined that Haskins' complaint meets a threshold level to initially overcome the immunity bar. On that basis, Kay's motion is denied. But it is denied without prejudice as a separate immunity issues needs now to be addressed. The Court is dismissing the action against Justiniano for lack of service sua sponte, the Court is dismissing the claims against the members of the Board of Parole.
Haskins Allegations
Haskins' many allegations can be separated into those against the two parole/probation officers and against the members of the Board of Parole. One premise of the allegations against all is that, when paroled, the Board of Parole imposed parole conditions which are the same as imposed on Level 3 probationers under current law. This, he asserts, the Board lacked authority to do because there was no Level 3 in 1985 when he raped his daughter. Among the conditions relevant to this action is one that permits a parole officer to search a parolee's residence at any time without a warrant. The contention is that since the Board lacked authority to impose this condition, the parole officers would not have had authority to enter his residence.
Haskins attached the conditions to his complaint.
Acting on that authority, Kay and Justiniano searched his residence on July 12, 2005. He claims they trashed it removing hundreds of DVDs and VHS tapes from their case, and tossed them all over his apartment and damaged them. He alleges they removed contents from various drawers, tossing and kicking them around. He also alleges the officers dumped files on the floor and also dumped on the floor contents of his closets.
There are other allegations against the probation and parole officers, such as, writing down his bank account numbers and re-entering his apartment when he alone had a key which was in storage while he was in jail. He does not specify which of the two officers did what except in one paragraph where he singles out Justiniano. He does, however, accuse the officers of theft and of damaging some of his personal property.
The claims against the Board are also premised on other, but less explicitly stated grounds. One is that his sentence for rape in the second degree is invalid because he should, at most, have been charged with incest. If so, any sentence would long ago have expired; as a misdemeanor, it would have had to expire in 1986. Another premise is that even his twenty-five year sentence for rape second degree had expired in 2002 not 2010. Because of that expiration, he argues he was no longer under anyone's jurisdiction. That means, he contends, he was and could not be placed on parole and not being on parole means he could not violate it.
Haskins alleges that at the time of his sentencing (which was in 1989 but effective 1985 — the date he was committed in lieu of bail), there was no levels of probation, such as Level 2 or 3. He contends the Board of Parole illegally imposed Level 3 parole/probation conditions on him and that in doing so, it acted to impose ex post facto punishment. He says the order imposing those conditions was neither signed by a judge nor approved by the whole Board but signed by Chairperson Holden. He says even then the Board of Parole cannot modify a sentence.
Among other special conditions which the Board imposed were (1) submission to DNA testing; (2) consent to search his residence, and (3) little or no internet contact. None of these, he asserts, were in the law when he committed his rape. They are all, therefore, ex post facto additional punishments, he contends.
Even though only one defendant, Kay, has responded to Haskins' complaint, the Court for several reasons has set out all of his allegations. One, they relate to Kay's motion to dismiss. Two, Haskins has moved to add Timothy Barron, former Deputy Attorney General, the prosecutor in his case. Three, he has also sued his members of the Board. While they have not answered the complaint or filed any motions, the Court is in a position to address Haskins' complaint against them. The factual background of this case and Haskins' current assertions assist the Court in reaching the decisions made in this opinion.
Applicable Standards
On a motion to dismiss all well-pled allegations are accepted as true. That principle does not mean the Court need blindly accept as true all allegations. A motion to dismiss for failure to state a claim will not be granted if the plaintiff can recover under any conceivable circumstances.
Ianire v. University of Delaware, 255 A.2d 687, 691 (Del.Super. 1969).
White v. Panic, 783 A.2d 543, 549 (Del. 2001).
Lord v. Souder, 748 A.2d 393, 398 (Del. 2000).
Claims Against Kay
Kay's motion to dismiss is grounded on his status as a State employee and the Tort Claims Act broadly defining immunity and setting up various exceptions to it. The Act provides that, among other immunity protections, where three specific elements are present, immunity controls. Those three elements are:§ 4001. Limitations on civil liability
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority;
(2) The act or omission complained of was done in good faith and in the belief that the public interest would be best served thereby; and
(3) The act or omission complained of was done without gross or wanton negligence, provided that the immunity of judges, the Attorney General and Deputy Attorneys General, and members of the General Assembly shall, as to all civil claims or causes of action founded upon an act or omission arising out of the performance of an official duty, be absolute; provided further that in any civil action or proceeding against the State or a public officer, employee or member of the State, the plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this section.
To remove the immunity protection, Haskins must demonstrate the absence of any of the above three elements. Kay argues Haskins' complaint fails to allege specific acts to negate any of the three criteria.
10 Del. C. § 4001; Smith v. New Castle County Vocational Technical School Dist., 574 F.Supp. 813, 820 (D.C. Del. 19830.
Kay was a probation and parole officer at the time the events took place inside Haskins' residence. His presence there was in connection with his duties as a probation/parole officer. The complaint acknowledges Kay was in the residence to perform a search. Haskins disputes the lawfulness of Kay being able to enter his residence. That issue is resolved elsewhere in this opinion. The complaint does not negate that Kay, in the performance of her duties, was not searching Haskins' residence in the belief the public interest would thus be better served.
Infra p. 18.
Haskins is an admitted child rapist. He was at the time of the search complained of operating under a set of special conditions for sex offenders. He has signed a written set of conditions allowing for the search, which was more elaborate because of his sex offender status.
Kay was there, even as the complaint and any reasonable inferences from it would indicate, performing his official duties. He was there to insure Haskins' compliance with his parole conditions. Haskins complaint does not negate the element that Kay was acting in good faith. Therefore, Haskins has not made the requisite showing on the first two elements of immunity to remove the bar.
It is the third qualified immunity element, absence of gross or wanton negligence, where Kay's motion falters. If the assertions amounted only to mere negligence they would be insufficient to overcome this third basis for immunity. The process of searching Haskins' residence may have necessitated opening drawers, looking through them or even removing some contents. So to, as a sex offender, double checking video tapes and DVDs may have required removing them from their containers or cases. But the "trashing" and damage caused, as alleged, is enough to overcome, at this stage, that the method of searching was done with more than mere negligence. Or to put it another way, Haskins allegations are enough to show the potential for gross or wanton negligence.
Shabazz v. Delaware Correctional Ctr., 1996 WL 69768 (Del. 1996).
Even though Haskins has made a preliminary showing sufficient, for the moment, to meet his burden under 10 Del. C. § 4001 that one of the three elements is missing, the inquiry does not stop. Since Kay argued that the complaint did not make that showing and that he was immune, he did not argue alternatively that there is another barrier in Haskins' way. On that issue more information and briefing is needed.
That issue is that, even if a plaintiff can make the threshold showing to get around one or more of the three immunity bars, that does not alone remove the immunity bar. The open question in this case is whether the State has or has not provided insurance to cover the kinds of claims made in this case. A separate statute waives immunity for risks like those in this case if covered by a State Insurance Program. Often in cases like these, the defendant or defendants supply an affidavit on that point. As noted, because of the argument Kay initially made that there was — if anything — no more than negligence, that affidavit has not been supplied. Time will be given to Kay to provide any information and argument on this point. Haskins will, thereafter, be given time to respond.
Doe v. Cates, 499 A.2d 1175, 1181 (Del. 1985).
18 Del.C. § 6511. Other discreet statutes may, of course, waive immunity.
Kay has moved to dismiss Haskins' complaint on another ground. It is that Haskins cannot maintain an action under 42 U.S.C.A § 1983 against him. The Court has read through Haskins lengthy complaint several times. In his table of contents, he does not list that statute among twelve statutory sections itemized. Nor does he cite it in the body of his complaint. Haskins' prolonged history of litigation demonstrates his ability to make claims. Even though he alleges several incidents of constitutional violations he makes no "1983" claims. For these reasons the Court will not entertain an amendment, if one were sought, to the complaint for such a claim. Under these circumstances, the Court will not address this ground in Kay's motion.
Haskins makes an allegation of fraud against Kay. Specifically, he asserts Kay filed a "fake arrest" report with the Board of Parole. He also claims Kay furthered the fraud by presenting false statements at the hearing before the Board. Kay argues these allegations lack the necessary specificity required by the rules of this Court, particularly Civil Rule 9(b). The Court agrees. Furthermore, the vagueness of Haskins fraud allegations stands in stark contrast with a complaint otherwise replete with details and citations.
Again Haskins' history of criminal civil litigation spanning over 18 years makes him intimately familiar with what he needs to allege. If he, as an inmate, had access to the Delaware Code and Delaware cases, he had access to this Court's rules. The conclusion again, is that the Court will not entertain a motion to amend to "cure" any defect on the "fraud" allegations.
As noted earlier, Kay, of the two parole/probation officers named and sued is the only one who was served. He has, obviously, filed a responsive pleading. Alison Justiniano is the other officer. The writ for service on her was returned non-est on March 9, 2007. Haskins has undertaken no effort to seek additional service or enlargement of time for service. Haskins' complaint was filed October 10, 2006. He had 120 days from then to show the Court good cause why service was not made in that time or to seek enlargement of time. Any effort to do either or both these things would now be barred.
Superior Court Civil Rule 9(j).
For that reason Alison Justiniano is dismissed from this case.
Action Against Board of Parole Members
Haskins has sued the Board of Parole chairperson, Dwight Holden and one other member by name, William Pfeifer. He has sought to sue three other members. None of the three are named. Instead they are sued as "John Doe 1, 2, 3."
A
As to these "John Doe" defendants, it is well-settled Delaware law that fictitious name practice is not permitted. This is because there is no statute or rule specifically authorizing fictitious name practice. Filing a claim against "John Doe" has no legal effect in this State. Such action does not toll the running of the Statute of Limitations. In addition, "[i]t [is] impossible to obtain services of process on a non-existent person." Therefore, Haskins' suit against John Doe 1, John Doe 2, John Doe 3 should be dismissed. Even if identified in the future, for the reasons given for dismissing Haskins' actions against the two Board members he names, his complaint against them would be dismissed.
Hutchison v. Fish Engineering Corporation, 153 A.2d 594, 595 (Del.Ch. 1959), appeal dism., 162 A.2d 722 (Del. 1960).
Mohl v. Doe, 1995 WL 339099 (Del.Super.), at *2.
Marshall v. University of Delaware, 1989 WL 135646 (Del.Super.), at *2 n. 2.
Collins v. Liberty Mutual Insurance Co., 1991 WL 190390 (Del.Super.), at *1.
Aleem v. Taylor, 2003 WL 1851704 (Del. Com. Pl.), at *1.
Mohr v. Doe, 1995 WL 339099, at *5.
Infra pp. 16-19.
B
Haskins' claims against Holden and Pfeifer are identical except for one. That one is that Holden signed the conditions of his parole not the sentencing judge. Holden and Pfeifer have been served but neither has filed a responsive pleading. Normally to address a plaintiff's claims, the Court would await a motion from the defendant or defendants. Judicial efficiency, however, and the status of the claims against Holden and Pfeifer enable and dictate that this Court address them now.
Before doing so, it is necessary to step back and briefly review some of the history of the case. On August 21, 1986, Haskins was indicted on two charges of rape in the first degree and one charge of attempted rape first degree. After a four-day trial, he was found guilty by a jury of all three charges on November 21, 1987. Haskins was sentenced to two consecutive life sentences for rape first degree convictions and forty years, suspended after serving ten years, for attempted rape first degree. The trial judge also ordered that, pursuant to 11 Del. C. § 4204(k), Haskins was to serve twenty minimum, mandatory years on the first rape conviction.
Haskins appealed his convictions to the Supreme Court. The Supreme Court reversed, holding that evidence of Haskins' prior unindicted sexual misconduct involving one of the victims was not properly admitted. The case was remanded for a new trial. While awaiting his second trial, Haskins, in the words of the Supreme Court, "literally flooded Superior Court with meritless pro se applications, interlocutory appeals and petitions seeking extraordinary relief."
Haskins v. State, 1988 WL 35162 (Del.).
Haskins v. State, 1989 WL 27761 (Del.). at *1.
Pending his second trial in this Court, Haskins filed three more appeals and one original action in the Supreme Court. Instead of a second trial starting July 10, 1989, Haskins elected to enter a guilty plea on June 19, 1989 to one charge of rape second degree as a lesser-included-offense of Count I of the indictment charging him with rape first degree. As part of the plea agreement, the State was to enter a nolle prosequi on the other two counts of the indictment which charged rape first degree and attempted rape first degree.
Haskins v. State, 1989 WL 8097 (Del.); Haskins v. State, 1989 WL 27642 (Del.); In the Matter of Carl J. Haskins, Jr.'s Petition for Writ of Prohibition, 1989 WL 27761 (Del.); Haskins v. State, 1989 WL 47831 (Del.).
At the time of the offenses charged occurred, 11 Del. C. § 763 read: "A man is guilty of rape in the second degree when he intentionally engages in sexual intercourse with a female without her consent. Rape in the second degree is a class B felony."
Very soon after pleading guilty, Haskins filed numerous motions and appeals. The day after signing the plea agreement, Haskins filed a motion to withdraw that plea which was eventually denied September 5, 1989. While awaiting disposition of that motion, Haskins filed additional motions (1) to dismiss the case (Moot), (2) to dismiss his counsel (Granted), (3) to compel counsel to turn over files (Denied), (4) to proceed pro se (Granted), (5) for an omnibus hearing (Denied), (6) for an evidentiary hearing (Denied), (7) to hire out-of-state counsel (Denied), and (8) to amend and change title to writ of habeas corpus (Denied). His counsel for the second trial and at the plea, Jerome M. Capone, moved to withdraw as counsel and that motion was granted.
Haskins v. State, 1989 WL 124429 (Del.Super.).
Id.
Haskins v. State, Del. Super., Cr.A. No. IN-86-08-0702 (Aug. 24, 1989).
Haskins v. State, 1989 WL 124429 (Del.Super.).
Id.
Haskins v. State, Del. Super., Cr.A. No. IN-86-08-0702 (Aug. 9, 1989).
Haskins v. State, 1989 WL 124431 (Del.Super.).
Haskins v. State, Del. Super., Cr.A. No. IN-86-08-0702 (Aug. 9, 1989).
After Mr. Capone was permitted to withdraw, new counsel was appointed. He renewed the request for an evidentiary hearing on the motion to withdraw the guilty plea. One ground of that motion was an allegation of a conflict between Capone and Haskins, and that Capone had coerced him into taking the plea. The evidentiary hearing was held on October 23, 1989. The motion to withdraw his guilty plea was again denied. On December 9, 1989 the Court sentenced Haskins to 25 years in jail effective the date of his commitment in lieu of bail, December 10, 1985. Haskins appealed the denials of his motions. The Supreme Court affirmed each of the denials.
Haskins v. State, 1989 WL 158508 (Del.Super.).
In 1991, Haskins again returned to this Court. Among other things, he claimed "that he was illegally prosecuted because his re-indictment was illegal." The Court held:
Haskins v. State, 1991 WL 113347 (Del.Super.), at *3.
Section 5. Sections 751 to 775 of Title 11 of the Delaware Code as amended by the enactment of this law shall apply to all such offenses committed, or alleged to have been committed, on or after the date of the enactment by the amendments.
Section 761 to 774 of Title 11 as they were in effect prior to the date of the amendments enacted today shall govern all offenses committed, or alleged to have been committed, before the date of the enactment of these amendments. Offenses which were committed, or which were alleged to have been committed, during a course of conduct covering a time period both before and after the date of the enactment of these amendments shall be governed by Sections 761 to 774 of Title 11 as they were in effect on the date prior to the enactment of these amendments.
Count I of the re-indictment charged rape first degree of defendant's minor daughter Rosemary on or about February 1985. This is the count to which the defendant pled guilty to the lesser-included offense of rape second degree. The savings clause just-quoted preserved the ability to prosecute the defendant, contrary to what he argues. He also contends, that the amendment enhanced the penalty he faced for rape second degree. It did not. Again, contrary to what defendant argues, the State's nolle prosequi of the first indictment did not bar it from re-indicting him.
Therefore, this ground of defendant's motion is meritless.
Id., at *3.
His fourth motion asking for postconviction relief was also denied. In 1992, this Court denied other Haskins' motions for postconviction relief on several occasions. On June 12 of that year, this Court denied Haskins' Motion for Certification.
Haskins v. State, 1991 WL 269960 (Del.Super.).
State v. Haskins, 1992 WL 19975 (Del.Super.); State v. Haskins, Del. Super., Cr.A. No. IN-86-08-0702-R7 (May 20, 1992); and State v. Haskins, Del. Super., Cr.A. No. In-86-08-0702-R8 (June 4, 1992).
State v. Haskins, Cr.A. No. IN-86-08-0702-R8 (June 12, 1992).
Haskins has twice challenged his re-indictment as defective. Twice the Supreme Court has ruled that, if defective he waived any defects by his guilty plea. He has also repeatedly challenged this Court's jurisdiction over him, asserting the most he could be charged with was incest. Incest is a misdemeanor, and Family Court has original jurisdiction of it. This Court's denial of that contention was affirmed on appeal.
Haskins v. State, 1991 WL 165563 (Del.); In re Haskins, 1995 WL 13441 (Del.).
11 Del. C. § 766.
In re Haskins, 1994 WL 10822 (Del.).
Haskins' action against Holden, Pfeifer, and the three "John Doe" Board members is premised, in part on the above two alleged deficiencies. That is, because of them, the Board lacked jurisdiction over him. But since those contentions have been ruled against him, his action against the Board members founded on those grounds is equally devoid of merit.
His next basis for suing Holden and Pfeifer is that the Board had no jurisdiction over him in 2001 or 2005. The premise for this argument is that, with earned good time deducted from his 25 year Level 5 (jail) sentence, he had passed the maximum expiration date of his sentence by the time he came up for parole consideration in 2001. His premise is wrong. His sentence of twenty-five years in jail began December 10, 1985. The maximum expiration date is December 9, 2010. As required by law, when Haskins was sentenced, the Court fixed the maximum term of incarceration. Haskins was awarded good time on his 25 year sentence and became "eligible" for parole prior to the full 25 years.
11 Del. C. §§ 4346, 4347.
By law, even when paroled, a defendant, in this case Haskins, remains under the orders of the Board of Parole (custody of the Department). Further, "Except when discharged herein a person on parole. . .shall be on parole until the maximum term for which the person is sentenced." There is no claim or evidence Haskins was or has been discharged early. The result is, of course, that his maximum expiration date is December 9, 2010. He is in the "custody" (whether in jail or not) of the Department of Correction and he is subject to orders by the Board of Parole until then.
Any claim in his current complaint which is founded on the assertion that his sentence expired in 2001 and that he was not subject to any Board of Parole order is likewise devoid of merit.
Haskins' current complaint contains yet another basis for claims which has been litigated and ruled against him. He makes many assertions that when he was paroled in 2001, the Board unlawfully imposed conditions on him. These conditions, such as placing on him the equivalent of Level 3 probation conditions, a sex offender tier status and having to supply a DNA sample, were ones created by statutes enacted after his 1985 rape. As they are ex post facto, he asserts the Board lacked authority to impose them.
Again it should be noted there is no civil rights claim invoking § 1983. Haskins' claims are based on exceeding statutory authority. Also, as indicated earlier with claims against Kay, Supra p. 1, this Court will not allow Haskins to amend his complaint to make such a claim. There is an additional reason for saying this and it relates to earlier filed litigation discussed in the opinion.
Unfortunately for Haskins' current complaint, he filed an earlier action in this Court seeking review of the Board of Parole's 2005 revocation of his parole. He made basically the same claims then as now: (1) his 1989 sentence expired in 2001, (2) the Board had no authority to impose the equivalent of Level 3 probation conditions, and (3) the 2001 parole conditions were illegal ( ex post facto).
This Court rejected all those claims. The Supreme Court affirmed that rejection. In that affirmance, the Supreme Court noted: (1) Haskins maximum expiration date is December 9, 2010, (2) the Board of Parole was within its jurisdiction to impose conditions on his parole, and (3) once the Board held it vioalated his parole, it had the authority to revoke it. One of the conditions this Court and the Supreme Court said the Board properly placed on Haskins parole was the right of the parole officers to enter his residence without a search warrant. This means that when Kay did so, he was acting under that authority from the Board to do so.
State v. Haskins, Del. Super. Cr.A. No. IN-86-08-0702.
Haskins v. Williams, 2007 WL 704122 (Del.)
Id.
The consequence of this prior litigation history, against the Board is this: except for one claim against Holden, Haskins is collaterally estopped from re-litigating all the same claims against Holden and Pfeifer as individuals.
Sanders v. Malik, 711 A.2d 32 (1998).
Haskins makes one claim against Holden which may or may not be collaterally estopped, but which the Court will address, nevertheless. It is that Holden signed the conditions of his parole and not the sentencing judge. Haskins, of course, could have raised that issue in the above-referenced litigation but did not. His current complaint, stating he learned of this in August 2005, shoes he knew it in time to raise it earlier in the action seeking review of the Board's revocation of his parole.
Haskins complaint about Holden's signature and not the sentencing judge's is misplaced. He was acting under the authority of the Board, not the sentencing judge, when the parole conditions were imposed. Consequently, this claim against Holden lacks merit.
Motions for Leave to Add Defendant
Haskins asks the Court to grant him leave to amend his complaint to add former Deputy Attorney General Timothy Barron as a defendant. Barron was the prosecutor and co-signed (with the Attorney General the indictment and re-indictment). He maintains that Barron amended the indictment to include the phrase "in that she was less than 16 years old." He also asserts the phrase "and has not previously permitted him sexual contact" was omitted from the re-indictment. The State asserts that this motion should be denied as amending the complaint would be futile as Barron was at all relevant times employed by the State as a Deputy Attorney General. As such, the State asserts Barron has absolute immunity from liability for civil claims founded upon an act rising out of the performance of an official duty.
Vick v. Haller, 1986 WL 17348 (Del.).
Barron was a Deputy Attorney General at the time in question. As such his conduct came under 10 Del.C. § 4001. Thus, Haskins has not claimed in any civil suit, such as here, for an official act done by Barron. There is no indication other than mere statements that there was any gross or wanton negligence on the part of Barron. Haskins has not proved that Barron's amendment of the indictment was not done in good faith or in the belief that public interest not would be best served thereby. Thus, Barron's immunity is absolute.
See n. 23.
There is additional reason for not adding Barron. Haskins' complaint, once again, is really that the re-indictment was defective. As noted earlier, he waived any defect by his guilty plea. When doing so, he waived any ability to pursue a claim, if there ever as one, against Barron. This holding is separate and distinct from Barron's immunity noted above.
Other Matters
Haskins has filed two other pleadings. One is a "Request for Admissions" and the other is a "Motion for Discovery." Both were stayed pending the outcome of the motion to dismiss. The Court's disposition of Kay's motion to dismiss means these two pleadings remain open for the moment. They will be addressed once that remaining issue is resolved.Conclusion
For the reasons stated herein:
1. Kay's motion to dismiss is DENIED without prejudice with leave to file additional information and a supplemental brief. Haskins will have an opportunity to respond;
2. The action against Allison Justiniano is dismissed, with prejudice;
3. The actions against the "John Doe" defendants are dismissed, with prejudice;
4. The actions against Holden and Pfeifer are dismissed, with prejudice;
5. Haskins' motion to add Barron is denied; and
6. Haskins' discovery motions and request for admissions are stayed.
IT IS SO ORDERED.