From an opinion in Valentin v. Wysock handed down Wednesday by Third Circuit Judge Stephanos Bibas, sitting by designation in the District of Delaware:
I have already written two opinions describing this case’s facts. Here is the gist: Valentin and Matos played Spanish music at home. Their neighbors, Michael and Patricia Wysock, disliked hearing it, so they complained to the police. After the police visited Valentin and Matos’s home fourteen times, officer Christopher Hewlett arrested Valentin for violating a county noise ordinance. Ultimately, the county dismissed the charge. Upset, Valentin and Matos then sued the Wysocks, Hewlett, and the county. I dismissed the claims against the county. There are still a few claims left against the Wysocks and Hewlett….
First things first: the claims against the Wysocks are based on state law. Though the Wysocks happen to be police officers, the complaint “does not allege that they were acting under the color of state law, as [42 U.S.C.] § 1983 requires.” Valentin and Matos do not dispute this. See D.I. 54; D.I. 60, at 2. So Delaware law governs.
And Delaware does not recognize either a statutory or common-law cause of action for harassment. In Delaware, statutory harassment is a crime. 11 Del. C. § 1311. As the Delaware Supreme Court has explained, criminal statutes like § 1311 “impose general prohibitions,” suggesting that they do not “create rights for a particular group of citizens, but … protect the public at large.” Given § 1311’s “penal focus,” it “cannot be stretched to include civil redress for personal damages.” So Valentin and Matos cannot sue the Wysocks for harassment under this statute.
Nor does Delaware common law create a harassment cause of action. Valentin and Matos cannot cite any Delaware case sustaining such a cause of action….
Sensing this, Valentin and Matos now ask me to let them change their claim from harassment to intentional infliction of emotional distress. I decline their invitation. Justice does not require allowing this amendment. Valentin and Matos make no effort to explain how the pleaded facts would support an intentional-infliction claim. And letting them change theories now, after discovery has closed, would prejudice the Wysocks. Plus, Valentin and Matos have “had multiple opportunities to state a claim but ha[ve] failed to do so.” Neither their initial complaint nor their first amended complaint mentioned intentional infliction of emotional distress….
Valentin alone brings a malicious-prosecution claim. Unlike harassment, Delaware recognizes a cause of action for malicious prosecution. To bring a malicious-prosecution suit, Valentin must plead that a criminal proceeding (1) was brought against her (2) “by, or at the instance of the [Wysocks],” (3) was “terminated in [her] favor,” (4) was brought with malice and (5) without probable cause, and (6) resulted in “injury or damage.” The Wysocks rightly concede the first and third elements: the police “instituted a charge against Valentin for violating the [n]oise [o]rdinance, and that charge was ultimately dismissed.” And I already decided that Valentin adequately alleged that she was arrested without probable cause. That leaves instigation, malice, and damages….
[Under Delaware law,] “The cause of action available to the arrested person against the [private-citizen] instigator is a suit for malicious prosecution.” … Nor does reporting crime to the police immunize one from suit…. [Valentin] plausibly pleads that the Wysocks “initiated” proceedings because “[i]t was their recitation of the incident [that] caused [her] to be arrested.” So her allegations that the Wysocks instigated the prosecution suffice.
But Valentin’s malice and damages allegations do not. She must plead “actual malice, in the sense of an improper motive or wanton disregard of the [prosecuted party’s] rights.” She claims that the Wysocks’ “improper motive” was “racial and linguistic animus.” But she gives scarce other facts suggesting that the Wysocks acted with such animus. All she says is that the Wysocks “derid[ed] [her] Spanish-language music.” These are mostly “naked assertions devoid of further factual enhancement.”
Indeed, Valentin’s main support for asserting animus is that she and Matos “are Hispanic and listen to Spanish-language music.” But those facts are still consistent with the Wysocks’ contending that the music violated the noise ordinance. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Without more, Valentin’s malice allegations fall on the wrong side of the line…. “[A] bare allegation that defendants[ ] instituted proceedings solely to intimidate and harass is insufficient to plead malice.” …
Similar problems plague her damages allegations. She says that the Wysocks’ malicious prosecution caused her to “suffer damages, in the form of both economic and non-economic damages including pain and suffering, embarrassment, loss of reputation, loss of enjoyment of the value of [her] home, and other such harms as will be borne out by the evidence.” She tries to beef them up in her response brief, explaining how she was damaged. But because those explanations are missing from her complaint, I cannot consider them….
Yet these deficiencies are fixable. So I dismiss Valentin’s malicious-prosecution claim without prejudice. She has one last chance to amend this claim….
Finally, both Valentin and Matos claim that the Wysocks defamed them…. But Valentin and Matos do not “identify the exact comments or specific publication attributable” to the Wysocks. They allege only that the Wysocks “made statements that falsely imputed a crime to” them, namely the noise-ordinance violation. Without more specific allegations, I “cannot evaluate” the defamation claim. So I will dismiss the claim without prejudice.
One last note: the Wysocks suggest that “statements made to the police to instigate criminal complaints are absolutely privileged.” But the Delaware Supreme Court has clarified that such statements are only conditionally privileged. Conditional privilege is an affirmative defense, which is typically inappropriate to resolve on a motion to dismiss. And the privilege’s abuse [which can rebut a claim of conditional privilege -EV] is “ordinarily a question of fact.” So now is not the right time to consider the privilege….
Congratulations to Shae Lyn Chasanov (Tybout Redfearn & Pell) and Nicholas Jaison Brannick (New Castle County Law Department), who represented the defendants.