Delaware State News
DOVER — A lawyer for the prison counselor who was abducted and raped at the Delaware Correctional Center near Smyrna confirmed Thursday that he attempted but failed to negotiate a settlement with Gov. Ruth Ann Minner's office for injuries suffered by his 27-year-old client.
Joseph C. Schoell, counsel to Gov. Minner, said the governor "very deeply and sincerely regrets the ordeal'' the counselor went through but that given the circumstances, he could not recommend a deal.
Jeffrey K. Martin, representing prison counselor Cassandra Arnold, said he sent the governor's office a draft copy of a lawsuit he said he intends to file on her behalf.
He said the complaint includes Gov. Minner and Department of Correction Commissioner Stanley W. Taylor as defendants.
Mr. Martin said the lawsuit alleges the state showed deliberate indifference in creating a dangerous workplace environment for prison employees.
Among other things, he said it accuses prison officials of allowing security doors to be routinely propped open, which in turn permitted inmates to move unattended into non-secure areas of the prison.
Inmate Scott A. Miller abducted Ms. Arnold at knifepoint during a standoff at DCC on July 12.
Miller, a 45-year-old serial rapist serving 699 years in prison for multiple crimes, accosted Ms. Arnold following a stress-management counseling session he attended with about a dozen other inmates.
Ms. Arnold conducted the session. She said Miller somehow left the session unattended and was able to move to a non-secure office hallway where he grabbed her when she saw him hiding in a bathroom.
After threatening to kill her and holding would-be rescuers at bay, Miller barricaded a small office and kept Ms. Arnold hostage for nearly seven hours before correctional officer Lt. Keith Hoffer shot and killed him through a false ceiling in an adjacent room.
Ms. Arnold told the Delaware State News in an interview that Miller sexually assaulted her and raped her shortly before he was shot.
She said security doors were propped open and that she had complained to a correctional officer supervisor about similar security breaches two weeks before she was attacked.
The State News asked Mr. Martin for a copy of Mr. Schoell's Sept. 28 letter responding to the settlement offer.
Mr. Martin agreed and sent a copy. A reference to the proposed financial settlement was blacked out.
"First and foremost, the governor very sincerely and deeply regrets the ordeal that Ms. Arnold has gone though,'' Mr. Schoell said in the letter.
"She stands prepared to do everything within the legitimate exercise of her authority to help Ms. Arnold improve her circumstances and attempt to return to normal life.
"I hope your client understands the governor's concern and the concern of the management of the Delaware Department of Correction, notwithstanding the efforts of some to manipulate this tragic situation in the media.''
Although he acknowledged the seriousness of the incident, Mr. Schoell said Ms. Arnold should have been well aware of the dangers involved in prison work.
He noted she received hazardous duty pay and that her job classification contains language recognizing "that her employment entails ‘uncontrollable circumstances that involve an unusual risk of serious physical injury, impairment to health or death resulting from accidental, negligent or intentional causes.' "
Mr. Schoell cited several examples of case law he said "generally (do not) allow recovery for injuries incurred during the course of public employment, where the injured employee works under inherently dangerous conditions."
He said he does not believe the complaint "raises valid constitutional claims'' and therefore he recommended against a settlement.
"While the governor has great sympathy for Ms. Arnold, I cannot recommend that the state settle the claims asserted in your draft complaint … as you have requested,'' he said.
Mr. Schoell, however, did recommend that Mr. Martin remove Gov. Minner as a defendant in the projected lawsuit.
"I urge you to reconsider naming the governor as a defendant, in light of your obligations under the Federal Rules of Procedure,'' he said.
"I assume you may believe that naming of the governor would help maintain continued media coverage on this case, but there is no basis for abusing federal process by naming the governor as a defendant in this suit.''
Because the state Department of Justice represents Department of Correction, Mr. Schoell said he was sending the draft complaint to that agency.
"I have referred the complaint and your demand to the attorney general's office for a thorough analysis of all the claims asserted,'' the letter to Mr. Martin said.
Kate Bailey, a spokeswoman for Gov. Minner, said Mr. Schoell declined comment beyond the contents of the letter.
"We believe the letter stands for itself,'' she said.
Lori Sitler, a spokeswoman for the attorney general's office, said the complaint was received and that lawyers in the department would be conferring with the DOC.
"We are not in a position to respond to it as a complaint because a complaint has not been filed,'' she said.
Patrick Johnston, an associate professor of law at Widener University, said there's nothing unusual about attempts to settle potential litigation before it is actually filed in court.
"This is not an uncommon practice,'' he said. "Basically it is a process that can be used to speed settlement, to prompt a settlement discussion before a case is actually filed.''
He said the process can help to avoid the costs of formal litigation and gives entities that believe they've been aggrieved a chance to get some indication of the strength of their case.
"If (the plaintiff) is able to show the potential defendant he's got a good case, they may be willing to sit down and talk about settling it,'' he said.
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Senior writer Tom Eldred
can be reached at 741-8212 or teldred@newszap.com.
