Marsh and Mancuso v. Town of Ellendale

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVID STEPHENS MARSH, and )
DOMINIC GERARD MANCUSO, )
)
Plaintiffs, )
)
)
v. ) C.A. No. S24C-04-009 MHC
)
THE TOWN OF ELLENDALE, )
DELAWARE )
)
Defendant. )

Submitted: September 20, 2024
Decided: December 9, 2024

Defendant’s Motion to Dismiss –
GRANTED.

MEMORANDUM OPINION AND ORDER

David S. Marsh and Dominic S. Macuso, Pro Se

Thomas Wallace, Esquire, Daniel A. Griffith, Esquire, Whiteford, Taylor &
Preston, LLC, 600 North King Street, Suite 300, Wilmington, DE 19801, Attorney
for Defendant

Conner, J.

1
This matter is presently before the Court on the Town of Ellendale’s

(“Defendant”) Motion to Dismiss. Plaintiffs, David Marsh and Dominic Mancuso,

oppose the motion. Based on the filings in support and in opposition, the motion is

GRANTED.

PROCEDURAL POSTURE

On April 10, 2024, Plaintiffs filed suit against Defendant alleging various

harms. On May 31, 2024, Defendant filed its initial Motion to Dismiss. Plaintiffs

failed to file a response but did personally appear on the motion day. Therefore, the

Court requested briefing on Defendant’s motion.

FACTUAL HISTORY

The facts and incidents as alleged are both long and detailed. To not belabor

the parties with a verbatim recitation of Plaintiffs’ Complaint, this review will

summarize the main events and provide necessary context.

1) Plaintiffs assert that after the adoption of their dog, among other issues,

they became the focus of the Defendant’s negative treatment from 2020

to the present.1

1
See Pls.’ Response at ¶ 2.
2
2) Plaintiffs assert that in 2021 they were continuously harassed and

accosted by “[t]he Ellendale authorities and agents/representatives,”

regarding where they were allowed to walk their dog, how they were to

handle their dog with respect to cleaning up after it on public and

private property, and leashing their dog.2

3) Plaintiffs assert that specific Councilmembers made defamatory and

slanderous remarks, both publicly and privately, against Plaintiffs,3

which also encouraged other Ellendale residents to do the same.4

4) Plaintiffs assert that the Ellendale Police violated their Fourteenth

Amendment right to equal protection and treatment under the law

through an unequal application of the law and by refusing to accept

Plaintiffs’ contrary evidence and statements prior to Plaintiff Marsh’s

arrest for Disorderly Conduct in 2021.5

5) Plaintiffs assert that the arrest was illegitimate. Further, they allege that

Councilmembers and Chief of Police Goerres “did knowingly and with

malicious and willful intent, lie in the [p]olice [r]eport to the detriment

of Plaintiffs” and, in doing so, Goerres committed perjury.6

2
Id. at ¶ 32.
3
Id. at ¶ 5.
4
Id. at ¶ 18.
5
Id. at ¶ 8.
6
Id. at ¶ 6.
3
6) Plaintiffs assert that the arrest itself was a violation of their First

Amendment right to free speech, “in that everything I said was

legitimate discourse and my constitutional right to state and say in

public.”7

Defendant’s Motion to Dismiss is based on the following grounds:

1) The Town is immune from liability for Plaintiffs’ state law tort claims

under the Delaware County and Municipal Tort Claims Act

(“DCMTCA”);8

2) Plaintiffs’ federal constitutional claims fail because Plaintiffs do not

allege an unconstitutional policy, practice or custom on behalf of the

Town under Monell;9 and

3) The statute of limitations bars many of Plaintiffs’ additional purported

grievances in the answering brief.10

7
Id at Attach. I ¶ 5.
8
Def.’s Opening Br. at ¶ 4.
9
Id. at 5.
10
Def’s Reply Br. at ¶ 8.
4
RELIEF SOUGHT BY PLAINTIFFS

Although Plaintiffs’ allegations throughout their filings are numerous,

Plaintiffs only seek two forms of relief.

First, Plaintiffs seek $25,000 in relief “to off-set the cost of additional security

at home as well as recompense for miscellaneous costs to Plaintiffs.”11

Second, Plaintiffs seek a public apology and “in general, assurance against

retribution and the continuance of unlawful actions against Plaintiffs.”12

STANDARD OF REVIEW

Defendant’s Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6)

permits this Court to dismiss an action for failure to state a claim. A complaint will

not be dismissed for failure to state a claim unless it appears to a certainty that under

no set of facts which could be proved to support the claim asserted would the plaintiff

be entitled to relief.13 “The Court will accept all well-pleaded allegations as true and

draw every reasonable factual inference in favor of the nonmoving party.”14 “[A]

complaint will not be dismissed for failure to state a claim upon which relief can be

granted unless it appears to a certainty that the plaintiff could not recover under any

11
Pls.’ Response at ¶ 27.
12
Id. at ¶ 28 (emphasis added).
13
Klein v. Sunbeam, 94 A3.d 385, 391 (Del. 1952).
14
Gray’s Landing Dev., LLC v. Blackston Cove Dev., LLC, 2023 WL 2609633, at *2 (Del. Super.
Ct. Mar. 21, 2023).
5
reasonably conceivable set of circumstances susceptible of proof.”15 Accordingly,

“the trial court is not required to accept every strained interpretation of the

allegations proposed by the plaintiff, but the plaintiff is entitled to all reasonable

inferences that logically flow from the face of the complaint.”16

ANALYSIS

A. Immunity Pursuant to the County and Municipal Tort Claims Act

Plaintiffs’ suit against the Town of Ellendale seeking compensatory damages

is barred by the Delaware County and Municipal Tort Claims Act (“DCMTCA”).

The Act states that “[e]xcept as otherwise expressly provided by statute, all

governmental entities and their employees shall be immune from suit on any and all

tort claims seeking recovery of damages.”17

Although Plaintiffs have specifically identified various Councilmembers and

the Chief of Police throughout their complaint, Plaintiffs did not sue them nor name

them within their lawsuit against the Town. Therefore, Plaintiffs are only suing the

15
Klein, 94 A.2d 385, 391 (Del. 1952), opinion adhered to on reargument, 95 A.2d 460 (Del.
1953).
16
Malpiede v. Townson, 780 A.2d 1075, 1082 (Del. 2001).
17
10 Del. C. § 4011(a).
6
Town of Ellendale and not the specific “agents and representatives” within the

Town.18

Title 10, Section 4011 of the Delaware Code provides:

An employee may be personally liable for acts or omissions causing
property damage, bodily injury or death in instances in which the
governmental entity is immune under this section, but only for those
acts which were not within the scope of employment or which were
performed with wanton negligence or willful and malicious intent.

Plaintiffs assert that the Police Chief acted with negligence and malicious intent.19

However, if that were true and the Police Chief was a party to the suit, the actions

must be connected with either property damage, bodily injury, or death while in the

scope of employment.20 Plaintiffs have not provided any fact that would suggest

such exception applies, nor could any reasonable inference find the same.

18
Plaintiffs have also asserted a respondeat superior claim in their Complaint. Because 10 Del.
C. § 4011 preempts Plaintiffs’ claims, respondeat superior is not viable. See Farris v. Moeckel,
664 F. Supp. 881, 897 (D. Del. 1987) (holding that “[g]iven the plain wording of the statute, it
would be inappropriate to engraft respondeat superior liability onto § 4011(c), which addresses
itself solely to employees, not municipal entities.”); accord Schuler v. Martin, 674 A.2d 882, 889
(Del. Super. Ct. 1996) (holding “the court in Farris rejected the argument that local government
entities are liable by virtue of respondeat superior if one of its employees engaged in reckless
conduct.” (emphasis in original). Moreover, Plaintiffs also claim constitutional violations against
the Chief of Police through their respondeat superior theory in conjunction with 42 U.S.C. §
1983. This also fails as Delaware does not recognize such a legal remedy. See McCaffrey v. City
of Wilmington, 133 A.3d 536, 542 (Del. 2016).
19
Pls.’ Response at ¶ 5, 6, 8, 9, Closing Statement; Attach. I at ¶ 3–4.
20
10 Del. C. § 4011(c).
7
There are three statutory exceptions to immunity pursuant to the Act. Title

10, Section 4012 states:

A governmental entity shall be exposed to liability for its negligent acts
or omissions causing property damage, bodily injury or death in the
following instances:
(1) In its ownership, maintenance or use of any motor vehicle,
special mobile equipment, trailer, aircraft or other machinery or
equipment, whether mobile or stationary.
(2) In the construction, operation or maintenance of any public
building or the appurtenances thereto, except as to historic sties
or buildings, structures, facilities or equipment designed for use
primarily by the public in connection with public outdoor
recreation.
(3) In the sudden and accidental discharge, dispersal, release or
escape of smoke, vapors, soot, fumes, acids, alkalines and toxic
chemicals, liquids or gases, waste materials or other irritants,
contaminants or pollutants into or upon land, the atmosphere or
any watercourse or body of water.

Again, Plaintiffs have not asserted any facts within their filings establishing these

exceptions.

In sum, Plaintiffs are seeking compensatory damages against the Town of

Ellendale. Since the Town is immune from liability, Plaintiffs’ claims for damages

must be dismissed.

Plaintiffs are also seeking a public apology from the Town as well as general

assurances against retributive actions. This Court is without authority to order

remedies of this nature.

8
Accordingly, Defendant’s Motion to Dismiss for failure to state a claim is

granted pursuant to 10 Del. C. § 4011.

B. Constitutional Claims Fail Pursuant to Monell

Defendant has properly asserted that Plaintiffs’ constitutional claims must fail

because the pleadings do not state a claim for which relief can be granted. To state

a viable constitutional claim against a governmental entity under 42 U.S.C. § 1983,

a plaintiff must show that “it is when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury that the government as an entity is

responsible under § 1983.”21 In other words, as applied here, the Town of Ellendale

must have adopted an official policy that can be clearly traced to the Plaintiffs’

grievances, i.e., a policy or adopted practice that violates their First and Fourteenth

Amendment rights. It is a requirement that the pleadings must be specific as to what

the custom or policy was. In evaluating any § 1983 claim, the first question the

Court must consider is “whether there is a direct causal link between a municipal

policy or custom and the alleged constitutional deprivation.”22

21
Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978).
22
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
9
The first constitutional deprivation Plaintiffs assert is that the detention and

arrest of Plaintiff Marsh violated his First Amendment right to free speech.23 To

support this claim, Plaintiffs, only broadly and indirectly, purport that it was the

actual arrest itself coupled with the arresting officer not wanting to listen to Plaintiff

Marsh’s statements that constituted the First Amendment violation.24 Plaintiffs did

not list, claim, or refer to any practice or custom to support their First Amendment

claim. Therefore, this claim fails.

The second constitutional deprivation Plaintiffs assert is a violation of their

Fourteenth Amendment right to equal protection.25 More particularly, Plaintiffs

claim that their equal protection rights were violated by the Chief of Police by way

of “a) refusing to view or consider evidence Plaintiff informed GOERRES [sic] he

had which contradicted the claims of WELLER and SHORT, and b) failure to [sic]

due diligence and a duty to seek the truth.”26 Additionally, Plaintiffs also claim that

they received unequal treatment regarding a fine and citation for their loose dog

while their reports of their neighbor’s dogs being loose on Plaintiffs’ property went

unaddressed by the police.27

23
Pls.’ Response at ¶ 11, Attach. I at ¶ 5.
24
See id. at ¶¶ 10–11, Attach. I at ¶ 5.
25
Pls.’ Response at ¶¶ 8, 19, 21, 24, Attach. I at ¶¶ 3 (3), 5.
26
Pls.’ Response at ¶ 8.
27
See id. at ¶ 19.
10
Again, to survive a § 1983 claim, Plaintiffs must allege an adopted custom or

practice. They have not. Moreover, Plaintiffs’ pleadings alone are not sufficient by

itself to establish a custom or practice under § 1983 as their “one-off experience

cannot suffice to establish a City’s ‘custom’ under the law.”28

For these reasons, Plaintiffs’ claims not only fail for the procedural matters,

but also for their substantive pitfalls as well.

C. Statute of Limitations

Finally, Delaware’s statute of limitations bars both Plaintiffs’ state tort claims

as well as the constitutional claims arising from any event preceding two years of

the date of Plaintiffs’ filing of this suit. “In determining the length of the statute of

limitations for a claim arising under § 1983, courts must apply the limitations period

applicable to personal-injury torts in the State in which the cause of action arose.”29

In Delaware, the statute of limitations for a personal injury claim is “2 years from

the date upon which it is claimed that such alleged injuries were sustained….”30

28
Bolden v. City of Wilmington, 2019 WL 133314 at *3 (D. Del.) (citing Groman v. Twp. of
Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (holding “that ‘a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.’”)).
29
Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 859 (3d Cir. 2014) (citing
Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.E.d2d 973 (2007).
30
10 Del. C. § 8119.
11
Accordingly, any incident listed prior to April 10, 2022 (two year prior to the filing

of this suit) is barred by the Delaware statute of limitations.

For the reasons state above, the Court GRANTS Defendant’s Motion to

Dismiss.

IT IS SO ORDERED.

/s/ Mark H. Conner
Mark H. Conner, Judge

cc: Prothonotary

12