File photo of former Gov. Jack Markell. ()
Attorneys for former Govs. Jack Markell and Ruth Ann Minner this week sought to avert discovery in a case brought by the family of a correction officer killed in the Feb. 1 takeover of a Smyrna prison, stressing precedent from a similar case over the rape more than a decade ago of a counselor at the same jail.
The 2005 ruling has resurfaced at the center of a wrongful death case accusing Minner, Markell and other state officials of failing to address critical security concerns at James T. Vaughn Correctional Center’s Building C, leading to the death of Lt. Steven Floyd Sr. earlier this year.
Attorneys for Saundra Floyd, Steven Floyd’s widow, and five officers who survived the siege have alleged that both former governors hid chronic understaffing from lawmakers and the public, and they accused Markell specifically of enacting policy that left corrections guards outmanned and overworked. Markell’s eight years in office ended in January, and Minner has not served in the post since 2009.
Last month, Stephen and Thomas Neuberger, of the Neuberger Firm, pointed to former U.S. District Judge Joseph J. Farnan Jr.’s 2005 decision as cause for their case to survive a motion to dismiss.
Farnan in the rape case denied a motion to dismiss federal substantive due process claims against Minner and representatives of the Delaware Department of Correction for allegedly allowing the brutal assault to occur. In a 29-page opinion, Farnan wrote that he could not conclude from the limited evidence that Cassandra Arnold, the JTVCC counselor, had failed to state a claim against the individual state defendants, and he allowed the case to proceed to discovery. Federal claims against the DOC, however, were dismissed.
Arnold, who survived the attack, quietly settled with the state for $1.6 million.
The attorneys for Floyd’s widow and the officer argued in a brief that they needed to access state documents in order to fully build their case against Markell and Minner and other current and state officials, and they faulted Minner and Markell’s Richards, Layton & Finger lawyers for glossing over the ruling.
“This appears to be the implicit and underlying reason why Judge Farnan denied a similar motion to dismiss filed in the earlier companion case by two of our same defendants and instead allowed discovery to proceed,” they wrote. “Seventy allotted pages of defense briefing failed to make any mention of this key legal precedent.”
Counsel for the governors responded on Wednesday, saying in their final round of briefing that their clients were protected by qualified immunity and under no constitutional duty to ensure workplace safety for prison guards.
In a 20-page reply brief, C. Malcolm Cochran IV, director of Richards, Layton & Finger, argued that federal pleading standards had changed since Farnan’s decision in Arnold, in light of the standard set by U.S. Supreme Court decisions Bell Atlantic v. Twombly and Ashcroft v. Iqbal.
Farnan’s ruling, he said, came at a time when claims could be only dismissed if it appeared beyond doubt that plaintiffs could not prove that they were entitled to relief.
“Today, under the Twombly/Iqbal standard it is clear that a plaintiff must first plead facts that would warrant relief, in order to avoid dismissal,” Cochran wrote. “The plaintiffs have failed to do so here. Their concession that they require discovery in order to state a claim essentially concedes the point.”
Cochran attacked the causal connection Floyd’s attorneys tried to draw between actions taken by both administrations and the Feb. 1 takeover. He cited funding increases for DOC prison staff enacted under Minner and argued that Markell’s reliance on forced overtime could not have caused inmates in Building C to rise up violently against staff.
Stephen and Thomas Neuberger maintain that the state bound itself to provide a “safe, secure and healthy work environment for all correctional officers” when it signed contract collective bargaining agreements with a union representing prison workers.
And, in their briefing, they denied that Twombly and Iqbal instituted a heightened pleading standard.
The suit, captioned Floyd v. Minner, also names three former commissioners of the Delaware Department of Correction, current Commissioner Perry Phelps and three directors of the Office of Management and Budget as defendants.
The DOC and current state officials filed a separate brief on Wednesday, also claiming immunity.
The sides have agreed to stay discovery in the case, pending a ruling on the motions to dismiss. However, third-party discovery, relating only to damages, has been allowed to proceed.
The case is assigned to U.S. District Judge Richard G. Andrews of the District of Delaware.