Rogers v. Mears
1:22-cv-00596
| D. Del. | Nov 17, 2025|
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Docket
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
D’ANDRE R. ROGERS and JERRY
McGINNIS, JR.,
Plaintiffs,
Civil Action No. 22-596-GBW
V.
TRUMAN MEARS, JOSHUA NIBLETT,
KEVIN BATES, CLAYTON MORGAN,
JOHN BECK, MARVELLA WISE, RODNEY
HUDSON, and MICHAEL MAANS,
Defendants.
Jeff Castellano, Matthew 8. Middleton, Angela C. Whitesell, DLA PIPER LLP (US), Wilmington,
DE; Derek Gretkowski, Gregory Ferroni, DLA PIPER LLP (US), Philadelphia, PA; Nancy C.
Braman, DLA PIPER LLP (US), Boston, MA.
Counsel for Plaintiffs
Lynn A. Kelly, Aaron C. Baker, STATE OF DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, DE.
Counsel for Defendants
MEMORANDUM OPINION
November 17, 2025
Wilmington, Delaware
REGORY B. WILLIAMS
UNITED STATES DISTRICT JUDGE
On September 8, 2023, Plaintiffs D’ Andre Rogers (“Mr. Rogers” or “Rogers”) and Jerry
McGinnis, Jr. (“Mr. McGinnis” or “McGinnis”) (collectively, “Plaintiffs”) filed their Second
Amended Complaint against Defendants Truman Mears (“Mears”), Joshua Niblett (“Niblett”),
Kevin Bates (“Bates”), Clayton Morgan (“Morgan”), John Beck (“Beck”), Marvella Wise
(“Wise”), Rodney Hudson (“Hudson”), and Michael Maans (“Maans”) (collectively,
“Defendants”). D.I. 51.
Pending before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second Amended
Complaint (“Defendants’ Motion”) (D.I. 53), which has been fully briefed (D.I. 54; D..56; □□□
59). For the reasons set forth below, the Court grants-in-part and denies-in-part Defendants’
Motion.
I. FACTUAL BACKGROUND
The following are allegations from Plaintiffs’ Second Amended Complaint (D.I. 51), which
are taken as true for the purpose of resolving Defendants’ Motion.
A. The Parties.
Plaintiffs: Mr. Rogers is an inmate at Sussex Correctional Institution (“SCI”). D.I. 51 9/5.
Mr. McGinnis was an inmate at SCI. D.I. 51 4 6.
Defendants: Defendants are all alleged “[u]pon information and belief” to be employees of
the Delaware Department of Correction (“DOC”) which operates SCI. D.I. 51 § 7-14. During
all relevant times, Mears was the Warden at SCI (D.I. 51 7); Niblett was a Captain at SCI □□□□□
51 4 8); Bates, Morgan, and Maans were all Lieutenants at SCI (D.I. 51 §§ 9, 10, 14); Beck was a
Deputy Warden at SCI (D.I. 51 11); Wise was a Major at SCI (D.I. 51 § 12); and Hudson was a
Sergeant at SCI (D.I. 51 § 13).
B. July 2020 — Black Mold Appears in the Shower Facility of SCI’s Medium
Security Building.
While incarcerated, Plaintiffs had access to one room with a shower within SCI’s medium
security building. D.I. 51 418. In or around July 2020, black mold began to appear on the “tile
floors and/or walls” of the shower facility. Jd. Starting around the same time, Mr. Rogers began
to experience shortness of breath while showering. D.J. 51 { 19.
In or around July 2020, Mr. Rogers requested bleach from Hudson so that he could attempt
to remove the mold, Hudson refused to provide the bleach, and Mr. Rogers filed a grievance with
SCI. D.I. 51920. No action was taken by SCI. Jd. Prior to July 2020, bleach had been provided
to inmates “upon request for purposes of cleaning the facilities.” Jd.
Due to the black mold, Mr. Rogers’s symptoms became “progressively worse”: he began
to experience chest pains and asthma attacks, faint in the shower facility, and notice other inmates
also fainting in the shower facility. D.I. 51 421. While Mr. Rogers had asthma as a child, his
attacks occurred “more frequently” once the black mold appeared. Jd. During this time, Mr.
Rogers filed several grievances. D.I. 51 922. “Defendants Mears, Niblett, Bates, Maans, Wise,
Hudson, and Beck were involved in the decision to deny Rogers’s grievances.” Jd.
Mr. McGinnis first experienced the black mold in or around August 2020. D.I. 51 4 23.
He began to experience symptoms, including trouble breathing and sinus pain, and made several
sick calls that started in or around September 2020, “but his symptoms were ignored[,] and he was
given allergy medication and nasal spray.” Jd.
Cc. June 2021 — SCI Unsuccessfully Cleans the Shower Facility, and the Shower
Facility is Inspected by the American Correctional Association.
“[I]n or around June 2021, SCI arranged for an individual to power wash the mold and then
to paint over it.” D.I. 5124. This power wash “simply covered” the black mold for a brief time
and did not “remediate the black mold.” Jd. The power wash and paint were ordered by “at least
3 .
Defendants Mears, Niblett, Bates, and Maans, not in response to Mr. Rogers’s grievances, but
because the prison was to be inspected by the American Correctional Association (“ACA’).” Id.
During that ACA inspection, Plaintiffs informed inspectors that there was black mold in the shower
facility, but “Defendants Niblett, Hudson, and Bates told the ACA inspectors that there was no
black mold.” Jd.
Ultimately, the mold returned, and so did Mr. Rogers’s symptoms. D.J. 51 4 25. Mr.
Rogers took samples of the black mold and sent them to the Occupational Safety and Health
Association (“OSHA”) for testing. D.J. 51 9 26. This testing confirmed the existence of black
mold. Jd.
D. January 2022 — Plaintiffs File Grievances Regarding the Return of the Black
Mold.
“Tn or around January 2022, Rogers filed another grievance related to the black mold.” D.I.
51 29. Bates presided over the grievance hearing and “stated that the substance in the shower
was not mold.” Jd. Bates further stated that, “if Rogers continued to file grievances[,] he would
retaliate by writing Rogers up for lying.” Jd. Mr. Rogers then showed Bates and two other officers
the mold in the shower, and they denied that it was mold; instead, they stated that the shower
needed to be power washed. Jd. That shower had been power washed the day prior. Jd.
In January 2022, Mr. McGinnis filed a grievance regarding the black mold, which was
combined with Mr. Rogers’s grievance. D.J. 51 Plaintiffs’ grievances were upheld. D.I. 51
431. In January 2022 or February 2022, Mears “claimed that he had hired an outside contractor
to remediate the showers” but instead “directed another inmate [to] spray the showers and the
floors with an orange cleaning solution.” Jd. The inmate was further ordered to “water down, thus
diluting, the orange solution.” Jd. The black mold continued to grow. Jd.
When Mr. Rogers spoke with Hudson regarding the outside contractor, Hudson stated that
SCI did not engage an outside contractor. D.I. 51 32. Rogers explained the black mold to
Hudson, reiterating his request for bleach, and explained that SCI needed to resolve the mold in
the showers. Jd. “Hudson denied Rogers[’s] request and refused to assist[,] claiming that he
(Hudson) did not have to live there.” Jd.
EK. Plaintiffs’ Allegations of Retaliation.
Following the filing of Mr. Rogers’s first grievance, Niblett “began threatening Rogers,”
telling him that Rogers’s building was “his building” and that he would “‘bring every gun’ to
protect it.” D.I. 51 934. “Following Niblett’s lead, Defendants Maans, Bates, and Hudson have
threatened and retaliated against Rogers for filing his grievances and filing the Original Complaint
in this case.” Jd. Mr. Rogers has been ordered to work in the kitchen, but should not have been,
since he was physically unable to do so. D.I. 51 435. Moreover, Mr. Rogers was written up
because he raised his medical condition; however, “the stated reason for the write up was pretext”
because he was “written up for filing his grievances to remediate the black mold.” Id.
Since the filing of the Original Complaint in this action, “Defendants Niblett, Maans, Bates,
and/or Hudson engaged in concert in a series of retaliatory activity,” including a “baseless[]” write
up for contraband possession and “additional and more frequent pat downs and searches than in
his prior years of incarceration.” D.I. 51 § 36.
Il. PROCEDURAL HISTORY
On May 2, 2022, this action was commenced by six plaintiffs proceeding pro se—Mr.
Rogers, Mr. McGinnis, Evan Dayton (“Dayton”), Jason Kashner (“Kashner”), Darnell Seeney
(“Seeney”), and La’Teef Dickerson (“Dickerson”)—against Defendants. D.I. 3 (Original
Complaint). On July 12, 2022, the Court issued an Oral Order requiring the Plaintiffs to sign the
Original Complaint. D.I. 27. Seeney was dismissed by the Court on September 16, 2022 for
failure to sign the Original Complaint. D.I. 43.
On November 14, 2022, the Court issued a Memorandum Opinion under the screening
provisions of 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(a) dismissing Dayton, McGinnis, Kashner, and Dickerson, leaving only Mr. Rogers. D.I. 44 at 9-10; Rogers v. Mears, Civ. No. 22- 596-GBW,2022 WL 16948758
, at *4 (D. Del. Nov. 14, 2022). In the accompanying Order, the
Court ordered that “[Mr.] Rogers may proceed with the conditions of confinement claims raised
against Defendants [Mears, Niblett, Bates, and Hudson].” D.I. 45. All other defendants, and the
claims against them, were dismissed. Jd. The Court further stayed the matter pending an attempt
to refer representation of Mr. Rogers. Jd.
On September 8, 2023, after having obtained counsel, Plaintiffs filed their Second
Amended Complaint which is the operative pleading. D.I. 51. The Second Amended Complaint
alleges causes of action by both Plaintiffs against all Defendants for (1) violation of the Eighth
Amendment of the United States Constitution as applied through the Due Process Clause of the
Fourteenth Amendment (D.I. 51 9] 37-44), and (2) violation of Article 1, Section 11 of the
Delaware Constitution (D.I. 51 45-48). The Second Amended Complaint further alleges a third
cause of action, brought only by Mr. Rogers against Defendants Niblett, Maans, Bates, and
Hudson, for violation of Article 1, Section 11 of the Delaware Constitution (D.I. 51 ff 49-54).
On February 2, 2024, Defendants filed their Motion. D.I. 53. Defendants’ Motion has
been fully briefed. D.I. 54; D.I. 56; D.I. 59. The Court now turns to the merits of Defendants’
Motion.
Ill, LEGAL STANDARDS
A. Motion to Dismiss for Failure to State a Claim
To state a claim on which relief can be granted, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Such
aclaim must plausibly suggest “facts sufficient to ‘draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Doe v. Princeton Univ., 30 F Ath 335, 342 (3d Cir. 2022)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678(2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Klotz v. Celentano Stadtmauer & Walentowicz LLP,991 F.3d 458, 462
(3d Cir. 2021) (quoting Jgbal,556 U.S. at 678
). But the Court will “disregard legal conclusions and recitals of the elements of a cause of action supported by mere conclusory statements.” Princeton Univ., 30 F 4th at 342 (quoting Davis v. Wells Fargo,824 F.3d 333, 341
(3d Cir. 2016)).
In evaluating a motion to dismiss, “[t]he issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Pinnavaia v.
Celotex Asbestos Settlement Tr., 271 F. Supp. 3d 705, 708(D. Del. 2017) (quoting Jn re Burlington Coat Factory Sec. Litig.,114 F.3d 1410, 1420
(3d Cir. 1997)), aff'd, No. 17-3184,2018 WL 11446482
(3d Cir. Apr. 6, 2018). Rule 12(b)(6) requires the Court to “accept all factual allegations in a complaint as true and take them in the light most favorable to [the plaintiff].” Brady v. Static Media, Civ. No. 23-1078-GBW,2024 WL 4103719
, at *2 (D. Del. Sept. 6, 2024).
“A motion to dismiss ‘may be granted only if, accepting all well-pleaded allegations in the
complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled
to relief.’” McCrone v. Acme Markets, 561 F. App’x 169, 172(3d Cir. 2014) (quoting Burlington Coat Factory,114 F.3d at 1420
). The “movant bears the burden of demonstrating that the complainant failed to state a claim upon which relief may be granted.” Abbott Diabetes Care, Inc. y. Dexcom, Inc., Civ. No. 23-239-KAJ,2024 WL 2804703
, at *1 (D. Del. May 31, 2024) (Jordan, J., sitting by designation) (citing Young v. West Coast Indus. Relations Ass'n, Inc.,763 F. Supp. 64, 67
(D. Del. 1991)).
B. Eighth Amendment Deliberate Indifference as Incorporated by the
Fourteenth Amendment
“The Eighth Amendment, which applies to the States through the Due Process Clause of
the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 666(1962), prohibits the infliction of ‘cruel and unusual punishments’ on those convicted of crimes.” Wilson v. Seiter,501 U.S. 294, 296-97
(1991). “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners.” Farmer v. Brenan,511 U.S. 825, 832
(1994) (citing Hudson y. McMillian,503 U.S. 1
(1992)). “The [Eighth] Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care and must ‘take reasonable measures to guarantee the safety of the inmates’... .” Jd (quoting Hudson v. Palmer,468 U.S. 517, 526-27
(1984)).
In the Third Circuit, “[t]o determine whether prison officials have violated the Eighth
Amendment, [courts] apply a two-prong test: (1) the deprivation must be ‘objectively, sufficiently
serious; a prison official’s act or omission must result in the denial of the minimal civilized
measure of life’s necessities’; and (2) the prison official must have been ‘deliberate[ly]
indifferen[t] to inmate health or safety.’” Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431,
441(3d Cir. 2020) (alterations in original) (quoting Farmer,511 U.S. at 834
).
“To satisfy the objective prong of this test ‘the inmate must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Porter, 974 F.3d at 441(quoting Mammana v. Fed. Bureau of Prisons,934 F.3d 368, 373
(3d Cir. 2019)). “The proof necessary to show that there was a substantial risk of harm is less demanding than the proof needed to show that there was a probable risk of harm.” Jd. (quoting Chavarriaga v. N.J. Dep’t of Corrs.,806 F.3d 210, 227
(3d Cir. 2015)).
“To satisfy the subjective prong of the Eighth Amendment test, an inmate must show that
the prison official ‘knows that inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Porter, 974 F.3d at 444(quoting Chavarriaga,806 F.3d at 229
)). “The inmate ‘may demonstrate deliberate indifference by showing that the risk of harm was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past such that defendants must have known about the risk.”” Jd. at 445 (quoting Betts v. New Castle Youth Dev. Ctr.,621 F.3d 249, 259
(3d Cir. 2010)).
IV. DISCUSSION
Defendants move to dismiss all counts in the Second Amended Complaint for failure to
state a claim. DI. 53. As discussed in more detail below, Defendants’ Motion is granted-in-part
and denied-in-part. Specifically, the Court grants Defendants’ Motion as to all Defendants with
respect to the second and third causes of action; and the Court grants Defendants’ Motion as to
Defendants Morgan, Beck, Wise, and Maans with respect to Plaintiffs’ first cause of action.
Plaintiffs have adequately stated their first cause of action against Defendants Mears, Bates,
Hudson, and Niblett.
A. Plaintiffs’ First Cause of Action, Deliberate Indifference Under the Eighth and
Fourteenth Amendments, is Partially Dismissed
All Defendants move to dismiss Plaintiffs’ first cause of action. D.I. 53. For purposes of
resolving Defendants’ Motion, Defendants have conceded the objective prong of the deliberate
indifference analysis. D.I. 54 at 12 (“For the purposes of the Motion, Defendants (as they must)
accept as true that the black mold in the showers of the Medium Building caused Plaintiffs to
experience serious medical symptoms — or an exacerbation thereof — sufficient to adequately plead
the objective component of Plaintiff[s’] conditions of confinement claim.”) (emphasis added).
Therefore, in the following subsections, the Court addresses the specific allegations brought
against each Defendant and the parties’ arguments as it pertains to the subjective prong of the
deliberate indifference analysis under the Eighth and Fourteenth Amendments of the Constitution.
1. Defendant Morgan
Defendant Morgan is named only once in the Second Amended Complaint, and only to
state his position at SCI. D.I. 51 | 10; see also D.I. 54 at 13.' There are no other allegations in
the Second Amended Complaint relating to Morgan’s involvement in the alleged deprivation of
Plaintiffs’ constitutional rights. See Hall v. Gamez, Civ. No, 23-284-GBW, 2025 WL 843277, at *4 (D. Del. Mar. 18, 2025) (“A defendant in a civil rights action ‘cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.’”) (quoting Baraka v. McGreevey,481 F.3d 187, 210
(3d Cir. 2007)). Thus, with respect to Morgan, Plaintiffs have failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 547
(2007).
' Plaintiffs do not dispute Morgan’s dismissal. See D.I. 56 at 7 (“[T]he Court should deny
Defendants’ motion to dismiss Count I as to each Defendant, with the exception of Morgan.”).
10
2. Defendants Beck and Wise
Defendants Beck and Wise, outside of the paragraphs naming their positions (D.I. 51 §{ 11-
12), are each named in only one allegation in the Second Amended Complaint. See D.I. 54 at 13-
14. That allegation states solely that, “[o]n information and belief, Defendants Mears, Niblett,
Bates, Maans, Wise, Hudson, and Beck were involved in the decision to deny Rogers’s
grievances.” D.I. 51 422.
Defendants contend that this involvement is insufficient to support Plaintiffs’ deliberate
indifference claims, asserting that such allegations are “too vague to be accepted as true” and “are
merely consistent with the possibility of liability” with respect to Defendants Beck and Wise. D.I.
54 at 13-14 (emphasis in original) (citing Iqbal, 556 U.S. at 679). Defendants add that “[t]here are
no other facts alleged against Defendants Beck and Wise that show that they had knowledge of the
‘black mold’ and its effects on Plaintiffs or others.” Jd. at 14. In opposition, Plaintiffs concede
that they have “less insight” into the conduct of Defendants Beck and Wise, but should be
permitted an opportunity to take discovery to ascertain “their knowledge at the time of the
grievance” and “test the well-pleaded allegations in the [Second Amended Complaint].” D.I. 56
at 7.
The Court agrees with Defendants that these allegations are insufficient to show that
Defendants Beck and Wise were deliberately indifferent because mere allegations of their
“involve[ment]” are insufficient to create the inference that they acted wrongfully in the alleged
deprivation of Plaintiffs’ constitutional rights. See Flores v. Emig, Civ. No. 25-100-GBW, 2025
WL 1638366, at *7 (D. Del. June 9, 2025) (finding that an excessive force claim was not stated as
to certain prison official defendants because the complaint merely pled that they were “present”
and “involved” in the alleged attack, but did not plead any other facts to support the excessive
11
force claim). Thus, with respect to Beck and Wise, Plaintiffs have failed to plead “enough facts
to state a claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 547.
3. Defendant Mears
According to the Second Amended Complaint, Defendant Mears was (1) “involved in the
decision” denying Mr. Rogers’s grievances following the first appearance of the black mold (D.I.
51 22); (2) ordered the June 2021 power wash and paint of the showers (D.I. 51 {| 24); and (3)
claimed in January or February of 2022 that he had hired an outside contractor to clean the showers,
but instead directed an inmate to spray the showers with a watered down, orange solution (D.I. 51
q 31).
Defendants contend that Mears’ actions are insufficient to give rise to liability because (1)
they are not sufficient to show that Defendant Mears had “knowledge of the ‘black mold’ and its
effects on Plaintiffs or others,” and (2) show that Mears acted “reasonably” to abate the black
mold. D.I. 54 at 15-16.
However, the Court is not persuaded by Defendants’ contentions. According to the Second
Amended Complaint, by January or February of 2022, Mr. Rogers had filed numerous grievances,
made sick calls, was suffering serious symptoms, and had received pulmonology results indicating
that his lung age was 93 years old (when Rogers was 34 years old at the time) (D.I. 51 44 20-22,
27-28), Mr. McGinnis had made “several sick calls” and filed a grievance (D.I. 51 § 23, 30); SCI
had tried, unsuccessfully, to power wash and paint the mold (D.I. 51 424); and OSHA had tested
the mold and confirmed it was black mold (DI. 51 26). Plus, it is alleged that “Mears had
responsibility for all activity within SCL” DI. 51 see also Gibbs v. Carney, Civ. No. 20-
01301-SB, 2022 WL 3681327, at *5 (D. Del. Aug. 25, 2022) (Bibas, J., sitting by designation)
(finding that a prison warden was deliberately indifferent where the prison warden was responsible
for overseeing the prison and it was plausible that he “knew of and acquiesced” in the actions of
12
prison staff). Accepting Plaintiffs’ factual allegations as true, as the Court must, it is plausible that
Mears had knowledge of the black mold in the medium security prison shower. See Iqbal, 556
USS. at 678; see also Gibbs, 2022 WL 3681327, at *5. Moreover, it is plausible that Mears acted unreasonably to abate those conditions when he did not hire an outside contractor to remediate the black mold, despite claiming that he would do so. Thus, the Court declines to dismiss Plaintiffs’ first cause of action as against Mears because Plaintiffs have pled “enough facts to state a claim to relief that is plausible on its face.” See Twombly,550 U.S. at 547
.
4. Defendants Niblett, Bates, Hudson, and Maans
The Court has previously found, with respect to the Original Complaint, that an Eighth
Amendment claim was stated as to Niblett, Bates, and Hudson, but not Maans. Rogers, 2022 WL
16948758, at *3.
The Second Amended Complaint alleges that Defendants Niblett, Bates, Hudson, and
Maans were “involved in the decision” denying Mr. Rogers’s grievances following the first
appearance of the black mold. D.I. 51 § 22. The Second Amended Complaint also alleges that:
(1) Hudson refused to provide Mr. Rogers bleach in or around July 2020, despite bleach having
been provided to inmates upon similar requests, and denied a similar request in 2022 (D.I. 51 9
20, 32); (2) Defendants Niblett, Bates, and Maans (but not Hudson) were responsible for ordering
the June 2021 power wash and paint of the showers (D.I. 51 9 24); (3) Defendants Niblett, Hudson,
and Bates (but not Maans) told the ACA inspectors that there was no black mold, despite the fact
that the power wash and paint “did not remediate the black mold” (id.); and (4) Bates “refused to
admit” that the substance was mold in or around January 2022 (D.I. 51 4 29).
As to Defendant Maans, a claim has not been stated, as his mere involvement in the
decision to deny Mr. Rogers’s grievances is insufficient to establish deliberate indifference. See
Flores, 2025 WL 1638366, at *7. Similarly, Maans’s alleged participation in ordering the June
13
2021 power washing and painting is insufficient, since Plaintiffs have not alleged facts showing
that this was not a “reasonable measure[] to abate [the black mold].” See Porter, 974 F.3d at 444(quoting Chavarriaga,806 F.3d at 229
). Thus, with respect to Maans, Plaintiffs have failed to plead “enough facts to state a claim to relief that is plausible on its face.” See Twombly,550 U.S. at 547
.
As to Defendants Niblett, Bates, and Hudson, Plaintiffs have adequately pled a cause of
action. Niblett, Hudson, and Bates told inspectors during the ACA inspection that there was no
black mold in the showers, even though the June 2021 power wash and paint failed to remediate
the black mold. Drawing all reasonable inferences in favor of Plaintiffs, as the Court must, it is
plausibly alleged that Niblett, Hudson, and Bates knew that the power wash and paint had failed
to remediate the black mold, but still told the inspectors that there was no black mold in the
showers. Moreover, Hudson twice-denied Mr. Rogers access to bleach to clean the shower facility;
and, despite having been shown the black mold, Bates refused to admit the existence of the black
mold in or around January 2022. Thus, the Court declines to dismiss Plaintiffs’ first cause of
action as against Niblett, Bates, and Hudson because Plaintiffs have pled “enough facts to state a
claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 547.
B. Plaintiffs’ Second Cause of Action, Alleging Violations of Article I, Section 11
of the Delaware Constitution, is Dismissed with Prejudice
The dispositive issue with respect to Plaintiffs’ second cause of action, arising under
Article I, Section 11 of the Delaware State Constitution (“Article I, Section 11”),” is whether a
private right of action exists under that provision. However, “Delaware law does not recognize
? Article I, Section 11 states: “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel punishments inflicted; and in the construction of jails a proper regard shall be had to the
health of prisoners.” Del. Const. art. I, § 11.
14
private causes of action” for violations of Article I, Section 11. Rodriguez v. Cahall, Case No.
N20C-01-201-FJJ, 2023 WL 569358, at *6 (Del. Super. Ct. Jan. 27, 2023) (citing Winter v. Richman, Civ. No. 17-1322-LPS,2020 WL 6940760
, at *3 (D. Del. Nov. 25, 2020) (predicting
that “Delaware state courts would decline to find a private right of action with respect to Article I
Section 117).
Defendants contend that this claim should be dismissed for the reasons stated in Winter v.
Richman, where the court held no private right of action exists under Article I, Section 11. D.I. 54
at 16 (citing 2020 WL 6940760, at *3). This Court agrees.
In Winter, the court analyzed whether Delaware state courts would recognize a private right
of action under Schueller v. Cordrey, where the Delaware Superior Court found that there was no
private right of action under Article I, Section 6 of the Delaware State Constitution. See id.(citing Schueller v. Cordrey, No. N14C-10-201-EMD,2017 WL 568344
, at *2 (Del. Super. Ct. Feb, 13,
2017)).
The Winter court interpreted Schueller to set forth four “factors” to be considered when
deciding whether to recognize a novel cause of action under the Delaware State Constitution:
whether
(i) the plaintiff had alternative remedies available to him through a
common law tort action for battery or gross negligence, both of
which allowed the plaintiff the opportunity to recover damages for
the unlawful or excessive use of force, and the plaintiff had brought
such common law tort claims against the defendants; (ii) unlike in
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), there is no state statute similar to section 1983
of the federal Civil Rights Act, which defines the scope and limits
of the requested new cause of action; (iii) creating a new cause of
action under Article I Section 6, which does not mention excessive
force or the requirements for bringing such a cause of action, could
impose huge financial burdens on municipal, local, and state
government entities by opening them up to lawsuits for damages
which lack defined boundaries; and (iv) the [Schueller court]
15
believed the Delaware Legislature was the entity best suited to
create a new cause of action, if it wished to do so.
Winter, 2020 WL 6940760, at *2 (quoting Schueller,2017 WL 568344
, at *2 & n.4). The Winter court then applied these factors to Article I, Section 11 and came to the “same conclusion.” Jd. Specifically, the Winter court found that (i) the plaintiff had alternative remedies (e.g., claims under the Eighth Amendment), (ii) there is no similar state statute to section 1983 of the Civil Rights Act that would serve to define the scope and limits of the action, (iii) the cause of action could impose “huge financial burdens on municipal, local, and state government entities by opening them up to lawsuits for damages which lack defined boundaries,” and (iv) the Delaware State Legislature “is the entity best suited to create a new cause of action in this instance.” Jd. (quoting Schueller,2017 WL 568344
, at *2).
Winter’s holding and analysis regarding Article I, Section 11 has been cited approvingly
by other courts, including the Delaware Superior Court. Rodriguez, 2023 WL 569358, at *6 (citing Winter favorably and stating that “Schueller applies equally to the constitutional violations alleged [under, inter alia, Article I, Section 11]”); see also Evans v. Dematteis, Civ. No. 20-1663-EJW,2024 WL 1885554
, at *11 (D. Del. Apr. 30, 2024) (Wallach, J., sitting by designation) (agreeing
with Winter’s result and rationale, dismissing the Article I, Section 11 claims with prejudice).
In an attempt to distinguish the Schueller-Winter line of cases, Plaintiffs contend that the
last clause of Article I, Section 11 provides Plaintiffs “additional protections, at least expressly,
that the U.S. Constitution does not.” D.J. 56 at 8. As Plaintiffs claim, Winter addressed only the
“cruel and unusual” clause of Article I, Section 11. Jd. However, the Court is not persuaded.
First, the courts addressing this issue, including Winter, have generally discussed the cause
of action in light of the entire provision—Article I, Section 1 1—not the individual clauses thereof.
Winter, 2020 WL 6940760, at *2 (“The Delaware state courts have not recognized a private right
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of action under this Delaware Constitution provision and this Court predicts that they would not
do so were the instant case pending in state court.”) (emphasis added); Evans, 2024 WL 1885554,
at *11 (agreeing with Winter).
Second, Delaware courts have stated that the Eighth Amendment and Article I, Section 11
provide the “same rights.” State v. Desmond, No. 91009844DI, 2024 WL 3456225, at *6 (Del.
Super. Ct. July 16, 2024) (“Under Delaware Supreme Court preceden[t], Article I, Section 11
provides the same rights as the Eighth Amendment.”) (citation omitted).’
Third, even if the last clause of Article I, Section 11 was interpreted to be more expansive
of the protections set forth in the Eighth Amendment, the remainder of the Schueller factors
counsel against creation of a novel private right of action: (i) there is no statute similar to section
1983, (ii) the cause of action could create significant financial burdens on municipal, local, and
state governments, and (iii) the Delaware State Legislature is the entity most-suited for crafting
the contours of such a cause of action. See Schueller, 2017 WL 568344, at *2 & n.4; Winter,2020 WL 6940760
, at *2 (similar).
In sum, Article I, Section 11 of the Delaware Constitution does not provide a private right
of action that would support Plaintiffs’ second cause of action. Thus, the Court dismisses
Plaintiffs’ second cause of action with prejudice.
3 Cf Fatir v. Recs., Civ. No. N23C-06-026, 2023 WL 6622214, at *4 (Del. Super. Ct. Oct. 11,
2023) (“Article I § 11’s intended meaning refers to considerations for the health of prisoners when
building new prisons, which Plaintiff fails to allege.”) (emphasis added). The Court notes that, to
the extent that the Delaware Supreme Court would interpret the provision as conferring rights with
respect to the building of new prisons, Plaintiffs’ Second Amended Complaint contains no
allegations that SCI’s construction would violate the Delaware Constitution.
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C. Plaintiffs’ Third Cause of Action, Alleging Retaliation Under Article J, Section
11 of the Delaware Constitution, is Dismissed without Prejudice
Plaintiffs’ Second Amended Complaint alleges that Plaintiffs’ third cause of action is
brought under “Article I, Section 11 of the Delaware Constitution.” D.I. 51 at 10. Defendants
move to dismiss this cause of action because (1) Article I, Section 11 does not permit a private
right of action, (2) there is no support for a retaliation claim under Article I, Section 11, and (3)
even if Article I, Section 11 did provide such authority, Plaintiffs’ allegations fail to support a
retaliation claim because they only allege the “mere possibility” of retaliation. D.I. 54 at 16-17.
For the reasons set forth in the preceding section, the Court agrees with Defendants that this cause
of action should be dismissed because Article I, Section 11 does not permit a private right of action.
Plaintiffs’ opposition brief does not articulate any basis for Plaintiffs’ retaliation claim
arising under Article I, Section 11. Instead, Plaintiffs’ opposition brief concedes that the Second
Amended Complaint “incorrectly states that the retaliation claim is raised under Article I, Section
Il of the Delaware Constitution, when instead it should read as a violation of the First Amendment
of the United States Constitution.” D.I. 56 at 1 n.1; see also id. at 9 & n.3 (asserting that this was
“erroneous” and offering to file a “corrected” version). Plaintiffs therefore request that the Court
either construe the Second Amended Complaint to include a claim stated under the First
Amendment or grant Plaintiffs leave to amend. D.I. 56 at 9-10.
As the Third Circuit has stated, “[i]t is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.” Com. of Pa. ex rel. Zimmerman v. PepsiCo,
Inc., 836 F.2d 173, 181(3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co.,745 F.2d 1101, 1107
(7th Cir.1984), cert. denied,470 U.S. 1054
(1984)). This flows from the rationale that a complaint must “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Jd. at 179 (quoting Conley v. Gibson,355 U.S. 41, 78
(1957)). Following
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Zimmerman, many courts have rejected attempts by plaintiffs to assert new facts or theories in a
brief opposing a motion to dismiss.‘
Here, the Second Amended Complaint does not allege a cause of action under, or even
mention, the First Amendment of the United States Constitution, which was cited for the first time
in Plaintiffs’ opposition brief. D.J. 56 at 1. As a result, Defendants primarily defended this cause
of action as if it arose under the Delaware State Constitution. D.I. 54 at 16-17. The Court
recognizes that federal pleading standards are primarily focused on the factual assertions of a
pleading, not the legal theories asserted therein. Fed. R. Civ. P. 8(a)(2). However, it is not clear
from the face of the Second Amended Complaint how Defendants would address this third cause
of action, especially where Plaintiffs’ cited authority cannot support it. Thus, the Court dismisses
Plaintiffs’ third cause of action without prejudice.
D. Plaintiffs May Move for Leave to Amend
Plaintiffs have requested leave to amend their pleading, in the event the Court dismisses
Plaintiffs’ claims for failure to state a claim under the first and third causes of action. D.I. 56 at 7,
10. As Defendants point out (D.L. 59 at 7), Plaintiffs may move to amend their pleading. See Fed.
R. Civ. P. 15(a)(2); see In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434(3d Cir. 1997) (noting that “leave [to amend] shall be freely given when justice so requires”) (quoting Glassman v. Computervision Corp.,90 F.3d 617, 626
(1st Cir. 1996)). 4 See, e.g., McCoy v. Favata, Civ. No. 17-1046-MN,2019 WL 1429570
, at *8 (D. Del. Mar. 29, 2019) (“Plaintiff cannot, however, use his brief opposing a Rule 12(b)(6) motion to dismiss to assert new theories or factual matter omitted from the Complaint.”); Wooten v. City of Wilmington, Civ. No. 19-2133-RGA,2021 WL 411707
, at *3 (D. Del. Feb. 5, 2021) (declining to consider a hostile work environment theory under Title VII raised in the plaintiffs opposition briefing that was not claimed or alleged in the complaint); Singh v. Hlusory Sys., Inc.,727 F. Supp. 3d 500
, 514
n.15 (D. Del. 2024) (dismissing claim where plaintiff argued a theory of “negligence per se” in
their opposition brief but the words “negligence per se” were “nowhere” in the complaint).
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The Court will defer on Plaintiffs’ request for leave to amend until the parties brief the
issue. While motions for leave are “freely given,” Burlington, 114 F.3d at 1434, the Court will also have to address whether, inter alia, “the amendment [would be] futile.” Soria v. App Holdco, LLC, Civ. No. 24-692-GBW,2025 WL 2614104
, at *4 (D. Del. Sept. 10, 2025) (declining to grant a request for leave to amend within an opposition brief); see also Ranke v. Sanofi-Synthelabo Inc..,436 F.3d 197, 205-06
(3d Cir. 2006) (upholding the district court’s decision in not granting leave to amend the complaint because the request was “nothing more” than two sentences in a response to a motion to dismiss); Ramsgate Ct. Townhome Ass’n v. W. Chester Borough,313 F.3d 157, 161
(3d Cir. 2002) (same); Posner v. Essex Ins. Co., Ltd.,178 F.3d 1209
, 1222 (11th Cir. 1999)
(“Where a request for leave to file an amended complaint simply is [e]}mbedded within an
opposition memorandum, the issue has not been raised properly.”) (citation omitted).
V. CONCLUSION
For the above reasons, Defendants’ Motion is granted-in-part and denied-in-part. In
granting-in-part Defendants’ Motion, Plaintiffs’ First Cause of Action is dismissed without
prejudice as to Defendants Morgan, Beck, Wise, and Maans. Plaintiffs’ Second Cause of Action
is dismissed with prejudice in its entirety. Plaintiffs’ Third Cause of Action is dismissed without
prejudice in its entirety. Defendants’ Motion is otherwise denied. Plaintiffs may file a motion for
leave to amend the Second Amended Complaint for the Court’s consideration by no later than
thirty (30) days from the entry of this Memorandum Opinion. An Order consistent with this
Memorandum Opinion will be entered.
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