Murphy v. Delaware State Police

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

ERICA MURPHY and EDWIN )
SANCHEZ as Guardians ad Litem )
of J.S., a Minor, ALFRED EVANS, )
and KAIMYHRE IBN-BRITT- )
JACKSON, ) C.A. No. N25C-07-163-CEB
)
Plaintiffs, )
)
v. )
)
DELAWARE STATE POLICE )
OFFICER CORPORAL )
DEMPSEY R. WALTERS, )
NEWPORT POLICE OFFICER )
THOMAS D. KASHNER, )
DELAWARE STATE POLICE )
OFFICER CORPRAL EARL )
MARCHIONE, DELAWARE )
STATE POLICE DETECTIVE )
DAVID ARMSTRONG, JANE )
DOE9S0, JOHN DOE9S0, )
DELAWARE STATE POLICE )
DEPARTMENT, NEWPORT )
POLICE DEPARTMENT, and )
ELSMERE POLICE )
DEPARTMENT, )
)
Defendants. )

Submitted: October 31, 2025
Decided: November 12, 2025

MEMORANDUM OPINION
Upon Consideration of Plaintiffs’ Motion to Proceed Anonymously; GRANTED in
part, DENIED in part.
Upon Consideration of Defendants’ Motion to Dismiss; GRANTED in part,
DENIED in part.

Christofer C. Johnson and Clifford R. Wood, Jr., THE JOHNSON FIRM LLC,
Wilmington, Delaware. Attorneys for Plaintiffs.

Michael F. McTaggart and Helene Episcopo, NEW CASTLE COUNTY OFFICE OF
LAW, New Castle, Delaware. Attorneys for Defendant New Castle County Police
Department.

Scott G. Wilcox, GIORDANO & GAGNE, LLC, Wilmington, Delaware. Attorney for
Defendant Newport Police Officer Thomas D. Kashner and Newport Police
Department.

Daniel A. Griffith and Jamie L. Lenko, WHITEFORD TAYLOR & PRESTON, LLC,
Wilmington, Delaware. Attorneys for Defendant Elsmere Police Department.

Butler, R.J.

INTRODUCTION

This decision requires the Court to examine a motion to dismiss a complaint

filed against certain police officers and their government agency employers, as well

as the use of pseudonyms for Plaintiffs and fictitious names when the identity of

other police officers unknown at the time of filing the complaint.

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THE ALLEGATIONS

The Complaint recites the facts of a case that received some notoriety in the

local press. Delaware State Police (“DSP”) Corporal Dempsey Walters lived in

Elsmere. Several days before the fateful day in question, Walters, while off duty,

encountered Plaintiff Alfred Evans smoking marijuana behind a maintenance

building in Elsmere. Walters and Evans had a “negative interaction” in which

Walters called the Elsmere police department and asked them to escort Mr. Evans

home. 1 0F

Then on August 21, 2023, three young men walked past Walters’ front door.

Walters was not at home, but his girlfriend was. One of the youngsters, J.S, a

Plaintiff here, kicked the front door in a gesture called “Ding Dong Ditch.” Alarmed

at the calamity, girlfriend reviewed the Ring camera footage and called Walters, who

was on duty as a DSP officer. She provided a description of the three minors to

Walters, who in turn called 911 with a reported “attempted home invasion.”

Walters then went to Newport where he knew Evans lived. There, Walters

met with two Newport PD officers and accompanied them to Evans’ home.

Suspecting Evans as one of the “Ding Dong Ditch” perpetrators, Walters forcibly

removed Evans from the residence, took him to the ground, cuffed him and put him

1
Compl., ¶36.
3
in the patrol vehicle of Newport Officer Kashner. For reasons not explained in the

Complaint, Evans’ friend Kaimyhre Ibn Britt-Jackson, who was in the house at the

time, was also cuffed and detained in the Kashner’s police car. Again, without

explanation in the Complaint, Britt-Jackson and Evans were detained in Kashner’s

police vehicle for some two and half hours and then released without charges.

Meanwhile, Walters left Newport and went to Elsmere, where DSP Corporal

Marchione had located and detained J.S. and his friends based on the Ring doorbell

descriptions. J.S. was on the ground and handcuffed by Marchione. That

notwithstanding, upon Walters’ arrival, Walters gratuitously assaulted J.S. and, once

J.S. was secured in a police vehicle, Walters turned off his body worn camera,

entered the rear seat and again assaulted J.S. J.S. suffered numerous facial injuries

as a result.

PROCEDURAL HISTORY

Plaintiffs filed their Complaint in July 2025, along with a Motion to Proceed

Anonymously. In August, the New Castle County Police Department moved to

dismiss the Complaint and responded to Plaintiffs’ Motion to Proceed Anonymously.

A briefing schedule ensued and the motion has been fully briefed. In September, the

Newport Police Department filed its motion to dismiss on behalf of the Police

Department and Officer Thomas Kashner, a member of the police department. That

4
motion has been answered by Plaintiffs. The Elsmere Police Department also moved

to dismiss and Plaintiffs have answered that motion as well.

The remaining individual defendants and the Delaware State Police have not

yet responded to the Complaint.

ANALYSIS

I. Plaintiffs’ Motion to Proceed Anonymously 2 1F

Plaintiffs are uncertain of the identity of several of the police officers involved

in the alleged torts against the Plaintiffs and have attempted to hold a place for their

names pending discovery of the identities of these unnamed officers. 3 Defendants 2F

urge that use of fictitious names as place holders is not permitted under Delaware

law, and those names should be stricken from the Complaint. 4 F

Support for the Defendants’ proposition is quite consistent in the case law. 5 4F

As put succinctly enough in one opinion: “[F]ictitious 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

2
Plaintiffs’ request was twofold: to allow Plaintiffs to proceed anonymously and to use fictitious
names for unidentified Defendants. As to the first request, Plaintiffs seek only to use a
pseudonym for minor Plaintiff J.S. As yet, there is no opposition from any Defendant to using a
pseudonym for Plaintiff and that request is therefore granted.
3
Pl.’s Mot. to Proceed Anonymously, ¶18.
4
Def. New Castle County’s Resp. to Pl.’s Mot. to Proceed Anonymously, ¶¶ 2-3.
5
See, e.g., Mergenthaler v. Asbestos Corp. of America, 500 A.2d 1357 (1985) (holding statute of
limitations not tolled by use of fictitious names).
5
State.” 6 It appears that this rule holds equally true regardless of whether the claims
5F

are common law torts, or “constitutional torts” brought under section 1983. 7 6F

Plaintiffs suggest that fictitious names may be used in “compelling and

unusual circumstances” and cite Clark v. Delaware Psychiatric Center in support. 8 7F

But Clark does not say that: it dismissed a pro se claim by a state hospital patient on

statute of limitations grounds. 9 The plaintiff in Clark named “John Doe” defendants,
8F

much as Plaintiffs did here, because he did not know who they were. The Clark

Court disallowed it, saying it was only permitted in compelling and unusual

circumstances, and cited – perhaps a bit loosely – the case of John Yoe #1 v. Catholic

Diocese of Wilmington, Inc. 10 But Yoe was not a case in which the Plaintiff could
9F

not identify the tortfeasor; it was a case in which the Plaintiff sought permission to

use a pseudonym to identify himself as a victim of sex abuse by a priest. The use of

pseudonym to protect a party from public embarrassment is quite different from the

use of fictitious names as a place holder for an unnamed defendant. Yoe was not a

case of “compelling and exceptional circumstances” permitting a plaintiff to use

6
Crawford v. Syngenta Crop Prot., LLC, 2024 WL 2831554, at *13 (Del. Super. May 31, 2024).
7
See Smith v. Bunkley, 171 A.3d 1118, 1125 (Del. Super. 2016) (dismissing a §1983 claim
against twenty John Does).
8
Pl.’s Resp. Br. in Opp’n to New Castle County’s Mot. Dismiss, at 9.
9
Clark v. Del. Psychiatric Ctr., 2011 WL 3762038, at *2 (Del. Super. Aug. 9, 2011).
10
John Yoe #1 v. Catholic Diocese of Wilm., Inc. C.A. No. 09C-06-188 (Del. Super. Mar. 15,
2010).
6
“John Doe” as a place holder for defendants as yet unknown. No Delaware case

brought to the attention of the Court has done so.

Proceeding from the unfounded assumption that Delaware recognizes a

“compelling and exceptional circumstances” exception to the prohibition on

fictitious names, Plaintiffs argue that the Law Enforcement Officers Bill of Rights

(“LEOBOR”) presents such a compelling and exceptional circumstance. 11 10F

Plaintiff says that “LEOBOR impedes any plaintiff’s ability to timely identify

and serve culpable officers, thereby frustrating their right to recovery and rendering

fictitious name practice a necessary procedural safeguard in cases involving

unknown actors within law enforcement agencies.” 12 This broadside on a statute
1 F

may be fair or not, but the statute is the law of Delaware and the Court is not in a

position to override it. The Court notes that the LEOBOR was recently amended by

the General Assembly to include “Authorized Disclosures.” 13 Whether Plaintiffs fit
12F

within or without such authorized disclosures is not an issue before the Court. The

point is, LEOBOR says whatever it says and following the statute leaves no room

for the Court to determine what is “compelling and exceptional.”

11
Pl.’s Resp. Br. in Opp’n to New Castle County’s Mot. Dismiss, at 10-11.
12
Id. at 10; 11 Del. C. §§9200-11.
13
See 11 Del. C. §9210 (effective Aug. 7, 2023).
7
For these reasons, the John and Jane Doe allegations are stricken from the

Complaint.

II. Defendants’ Motions to Dismiss

A. Immunity Under the County and Municipal Tort Claims Act

New Castle County, the Town of Elsmere and the Town of Newport are all

“governmental entities,” as are their respective police agency “instrumentalities.” 14 13F

Under the County and Municipal Tort Claims Act (“CMTCA”) all governmental

entities and their instrumentalities are immune from suit “on any and all tort claims

seeking recovery of damages.” 15 Despite this general bar on liability, Plaintiffs
14F

argue that they “do plead sufficient facts to satisfy the carve out exception under 10

Del. C. § 4012, where liability may attach when a government employee, including

a police officer, commits a negligent act in the performance of their duties.” 16 15F

Plaintiffs’ reading of the statute is incomplete– section 4012 does not provide a

general “carve out” for negligent acts, but instead provides three limited instances

in which negligent acts or omissions may lead to liability. Plaintiffs do not

adequately plead that any of these three narrow instances apply to the present facts.

Plaintiffs have not articulated any relevant exceptions to the CMTCA’s bar on

14
See 10 Del. C. §4010(2).
15
Id. §4011(a).
16
Pl.’s Resp. Br. in Opp’n to New Castle County’s Mot. Dismiss, at 8.
8
liability, so the governments and their police departments are therefore dismissed as

to the state law tort claims in the Complaint.

The same cannot be said for the individual police officer defendants. 10 Del.

C. §4011(c) provides that:

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 wilful and malicious intent.
Of the individual Defendants named in the Complaint, only Newport Police

Officer Kashner has moved to dismiss, but his stated grounds are that there is no

allegation that he did anything at all, not that he is immune under the CMTCA. We

will therefore deal with Officer Kashner separately from the immunity issues.

B. Liability Under 42 U.S.C. §1983 and Monell

42 U.S.C. §1983 provides that any person who, under color of law, deprives a

citizen “of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.” Plaintiffs in this action have levelled several claims

against both the governmental entity defendants and the individual named police

officers alleging violation of their civil rights secured by section 1983.

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1. Governmental Entities Immune From State Tort Claims

We have already discerned that the government entity defendants are immune

under state law for common law torts. Section 1983 provides a cause of action for

violations of federal constitutional rights. But section 1983 does not grant what state

law denies: just as the government is immune under the CMTCA, “ordinary” torts,

committed by the state through its agents, are not cognizable under section 1983.

Plaintiffs here appear to understand this concept: the state tort claims in the

Complaint, such as battery and false imprisonment, do not name the governmental

defendants.

2. Monell Liability Requires a “Policy or Custom”

In Monell v. Department of Social Services of the City of New York, 17 the U.S.
16F

Supreme Court examined an allegation that a municipal agency was violating the

civil rights of New Yorkers through the denial of services. The Court first concluded

that liability could not be imputed to a municipality for the tortious acts of its

employees- “in other words, a municipality cannot be held liable under §1983 on a

respondeat superior theory.” 18 Therefore, the government entities named in the
17F

Complaint may not be held liable through respondeat superior.

17
436 U.S. 658 (1978).
18
Id. at 691.
10
But the Court did hold that section 1983 liability may be imputed through other

means: “[A] local government may not be sued under §1983 for an injury inflicted

solely by its employees or agents. Instead, it is when execution of a government’s

policy or custom . . . inflicts the injury that the government entity is responsible

under §1983.” 19 So, while a single incident of violation of civil rights by an isolated
18F

employee would not trigger local government liability, a “policy or custom” of the

employee – or several employees – may be evidence that the local governmental

entity has either promoted the practice or at least acquiesced in it. 20 This liability
19F

may be termed “Monell liability” or “policy or custom liability” and it is actionable

under section 1983.

3. Monell Liability Does Not Attach to the Moving Defendants

Plaintiffs have invoked section 1983 in naming governmental entity Defendants

in several of the counts in their Complaint. The most obvious is Count V, which

claims section 1983 liability “[c]aused as a result of a government custom, even

though such custom has not received formal approval through decision-making

channels.” Armed with our understanding that liability for these entities must spring

not from the singular conduct of the police officers named in the complaint, but from

19
Id. at 694.
20
Id. at 690 (“Although not authorized by written law, such practices of state officials could well
be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)).
11
the entities’ custom or practice of authorizing, encouraging or allowing violations of

the type alleged in the Complaint, we review the allegations of the Complaint

specifically.

Count V alleges that the Delaware State Police failed to properly “train,

supervise and discipline their employees and agents.” 21 Notably, these allegations
20F

are specific to the Delaware State Police and are not levelled at Defendants Newport,

Elsmere or New Castle County. None of those defendants are mentioned at all in

Count V. The Delaware State Police has not entered any pleadings in this matter.

Count VIII charges that “all named Defendants” conspired to violate

Plaintiffs’ civil rights, in violation of 42 U.S.C. §1985. But the only activity

allegedly part of this conspiracy relates to the fact that Walters allegedly “recruited

the officers over the radio and continued to receive their help.” 22 That allegation
21F

may involve individual officers in a conspiracy, it does not imply any custom or

practice of any of the governmental agencies.

Count X charges that “all named Defendants” violated the 14th Amendment

Equal Protection Clause by failing to provide medical care. Again, the allegation is

supported only by a claim that J.S. was held in a patrol car for a time before being

21
Compl., ¶95.
22
Compl., ¶112.
12
taken for medical care. There is no claim that doing so was part of any custom or

practice by any of the governmental agencies that employed the police officers

involved.

It thus appears that no moving Defendant (New Castle County, Elsmere or

Newport) are identified in any of the Counts as having any custom or practice that

might implicate section 1983 liability under Monell.

Because New Castle County, Elsmere, Newport and their police departments

are all governmental entities, immune from suit under the CMTCA for common law

torts and no custom or practice of any of these agencies have been identified that

would support Monell liability under section 1983, the Complaint will be dismissed

as to these Defendants.

V. Individual Defendant Kashner

The only individual named in the Complaint that has moved for dismissal is

Officer Kashner of the Newport Police Department. He is named in Count IV (false

imprisonment) insofar as Walters placed Evans and Britt-Jackson in Kashner’s patrol

car and they were kept there for two and a half hours before being released. He is

also named in Count VI for a violation of section 1983 insofar as the detention of

Evans and Britt-Jackson in Kashner’s patrol car was also an unlawful arrest in

13
violation of the 14th Amendment. He is named in Count IX (failure to intervene) and

Count X (failure to provide medical care).

The issue here, of course, is not whether Kashner is in fact liable for some or

any of these allegations. Rather the question is whether he is immune from such

complaints and whether they are sufficiently pled to move the case through to

discovery, at which point we will presumably learn if there is any evidence to support

the allegations.

It is difficult at this early stage to piece together who did what and when. We

do not have, for example, a description of why Kashner was on the scene at all or

why his patrol car was used to place Evans and Britt-Jackson, or why they were left

in the car for two and half hours. The reasons may be completely benign, or Kashner

may have kept them in the patrol car for motives other than faithful execution of his

duties as a law enforcement officer.

The Court’s duty at this early stage is to read the Complaint in a light most

favorable to the Plaintiffs. When so read, Plaintiffs present at least a conceivable

basis for relief: that Kashner colluded with Walters to violate the rights of Evans and

Britt-Jackson by imprisoning them in Kashner’s vehicle. If those facts prove out,

they could make out a case of a state tort claim for which immunity is waived under

14
the CMTCA or a violation of civil rights under section 1983 for which Kasher is

personally liable.

The motion to dismiss the Complaint as to Defendant Kashner must therefore

be DENIED.

IT IS SO ORDERED.

/s/ Charles E. Butler
Charles E. Butler, Resident Judge

15