Not Precedential
Not Precedential
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding
precedent.
The District Court also granted summary judgment as to all claims against Bud Mowday
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II.
The First Amendment Claim Against White
Kimbleton alleges that White filed a complaint against her with the DPR in
retaliation for the letters she wrote to public officials criticizing him and accusing him of
alleged misconduct regarding her first disciplinary hearing. To establish retaliation under
the First Amendment, Kimbleton must demonstrate: (1) that she engaged in protected
activity, (2) that she was subjected to adverse actions by a state actor, and (3) that her
protected activity was a substantial motivating factor in the state actors decision to take
adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The District Court
focused its analysis on the third prong and we will do the same.
Because the record contained indications that a state senator had notified
individuals at the DPR that he received Kimbletons letters, the District Court assumed,
for purposes of summary judgment, that White had knowledge of Kimbletons
complaints. We express some doubt as to whether such inference was required given that
there was no evidence that White actually had knowledge of the letters. In fact, he denied
having any such knowledge. Nonetheless, we will follow the District Courts lead in this
regard.
However, Kimbleton has failed to establish that Whites decision to file a
complaint was in any way related to the letters she wrote criticizing him. In the first
place, as the District Court noted, White filed the complaint in November of 2011, over a
and the Commission, as well as claims against White and Ward in their official capacities.
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year after Kimbleton wrote the letters in October of 2010. Moreover, White testified that
he filed the complaint because he had received anonymous information that Kimbleton
was continuing to hold herself out as a broker in violation of her consent agreement.
Kimbleton does not dispute that White, did, in fact, receive information from an
anonymous third party and there is no indication that his testimony is false. Rather,
Kimbleton faults White for failing to determine the accuracy of the information before
filing the complaint. This is, quite simply, insufficient to sustain her claim. Kimbletons
bald speculation regarding Whites motives cannot overcome the evidence in the record
that Whites decision to file the complaint was prompted by information he received from
a third party, and not in retaliation for letters Kimbleton had written over a year before he
filed the complaint. See Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (the
party opposing summary judgment must present more than just mere allegations, general
denials, or . . . vague statements to show the existence of a genuine issue of material
fact).
The Fourteenth Amendment Claim Against Ward and White
Kimbleton also states that she sufficiently demonstrated a violation of her
substantive due process rights under the Fourteenth Amendment. To establish such a
claim, she must prove that she was deprived of a protected interest by government actions
that were either arbitrary, irrational, or tainted by improper motive, or by means so
The dismissal of these claims, which Kimbleton has declined to appeal, is not before us.
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egregious that it shocks the conscience. Nicholas v. Pa. State Univ., 227 F.3d 133, 139
(3d Cir. 2000). Kimbleton has not met this standard.
The District Court concluded that Kimbletons claim against Ward fails because
(1) Ward was simply investigating complaints made to the DPR by third parties, and (2) it
was the DOJ that proceeded with the REC hearing once the complaint was made. It
further concluded that her claim as to White fails because she made no showing of how
filing a bogus complaint, if true, violated her substantive due process rights. We
consider these in turn.
As an initial matter, Kimbleton incorrectly asserts that the Commission was
prohibited from disciplining her because none of the complaints filed were verified. The
Delaware statute on which she relies states that The Commission may, upon its own
motion, and shall upon the verified complaint in writing of any person . . . direct all
complaints to the investigative staff of the [DPR]. 24 Del. Code tit. 24, 2912(a)
(amended 2012). Thus, although in certain cases involving a verified complaint, the
Commission was required to investigate, there is nothing in the statute that prevents the
Commission from investigating or punishing conduct found to violate the statute,
regardless of whether the complaint setting forth the allegations of misconduct was
verified or not.2
This regulation remained in effect until February 3, 2012, and therefore governs all of
the complaints filed against Kimbleton. Nonetheless, we note that as of February 3, 2012,
Del. Code tit. 24, 2912(a) was rewritten as A licensee shall be subject to disciplinary
sanctions set forth in 2914 of this title if after a hearing, the Commission finds that the
licensee violates any of a series of subsections. The revised statute eliminates any
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indifference, and reach a level of gross negligence or arbitrariness that indeed shocks the
conscience.).
III.
In light of the foregoing, the judgment of the District Court entered on September
4, 2014, will be affirmed.