          In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 18-470V
                                       Filed: June 7, 2019
                                         UNPUBLISHED

    KELLY DEAN,

                          Petitioner,                         Special Processing Unit (SPU);
    v.                                                        Ruling on Entitlement; Concession;
                                                              Table Injury; Tetanus Diphtheria
    SECRETARY OF HEALTH AND                                   acellular Pertussis (Tdap) Vaccine;
    HUMAN SERVICES,                                           Shoulder Injury Related to Vaccine
                                                              Administration (SIRVA)
                         Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.

                                     RULING ON ENTITLEMENT 1

Dorsey, Chief Special Master:

      On March 30, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Tetanus Diphtheria acellular Pertussis (“Tdap”)
vaccine administered on December 7, 2017. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.

        On June 5, 2019, respondent filed his Rule 4(c) report in which he concedes that
petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
Specifically, respondent has concluded that compensation is appropriate, and that

1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling will be available to anyone with access to the internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management
and Promotion of Electronic Government Services).

2   National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
petition suffered a SIRVA as a result to the Tdap vaccine received on December 7,
2017 Id. at 4. Respondent further agrees that petitioner has satisfied all legal
prerequisites for compensation under the Vaccine Act. Id.

     In view of respondent’s position and the evidence of record, the
undersigned finds that petitioner is entitled to compensation.

IT IS SO ORDERED.

                                 s/Nora Beth Dorsey
                                 Nora Beth Dorsey
                                 Chief Special Master


679 P.2d 1369 (1984)
67 Or.App. 520
In the matter of the Marriage of Carla Mae ELTZROTH, Appellant, and
Hal Edward Eltzroth, Respondent.
No. D8105-63923; CA A28919.
Court of Appeals of Oregon.
Argued and Submitted December 13, 1983.
Decided April 4, 1984.
*1370 Richard G. Helzer, Portland, argued the cause and filed the brief for appellant.
No appearance for respondent.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
WARREN, Judge.
Wife appeals the trial court's denial of a motion made pursuant to ORCP 71 B(1)(c) to set aside a decree of divorce and the incorporated property settlement agreement on the grounds of breach of fiduciary duty and misrepresentation. We reverse as to the property provisions of the decree and otherwise affirm.
The parties were married in 1962 and had two children. In the spring of 1981, they began discussing the terms of a divorce and retained a single attorney to represent them both. They met with the attorney several times, and on September 28, 1981, they signed the Marital Settlement Agreement.[1] The parties appeared in court on October 8, 1981, when a decree of *1371 dissolution incorporating the property settlement agreement was signed by the judge.[2] The parties continued to live together in the family home throughout the negotiations and after the decree was signed.
Wife now seeks to set aside the decree and the property settlement agreement. She claims that husband breached his fiduciary duty to make a full and fair disclosure of marital assets and made intentional misstatements respecting their financial condition on which she relied when she agreed to the settlement. Husband filed no brief in response.
Throughout the marriage, husband worked in the family excavation business, a partnership known as Medoff & Eltzroth. Wife worked as a homemaker. At the hearing on the motion, wife testified that, during the spring of 1981, when the parties were discussing a divorce, husband told her that the family business was virtually bankrupt, that there was no money to obtain separate legal representation without having to sell the family home to pay for it[3] and that she had no reason to believe otherwise and relied on husband's representations throughout the negotiations. The attorney professing to represent both parties in the negotiations testified that, during her meetings with both parties, wife brought up the subject of the family business several times and that husband in *1372 response represented that the business had insignificant value.[4]
At the hearing, wife's expert witness, relying on the parties' 1981 federal income tax return and the partnership's 1981 tax return, testified that the parties' income from the family business in 1981 was $72,506, that the partnership had gross sales of $719,000 and that husband's capital balance on his partnership return as of December 31, 1981, was $108,857, representing 70 percent of the total partnership interest.
The general rule in Oregon defining when a fiduciary relationship will be held to exist is stated in Starkweather v. Shaffer, 262 Or. 198, 205, 497 P.2d 358 (1972):
"A fiduciary relationship exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Patterson v. Getz, 166 Or. 245, 287, 111 P.2d 842 (1941)."
Oregon courts have long recognized that a husband and wife do not deal at arms' length and have imposed a fiduciary duty of the highest degree in transactions between them. Hodes v. Hodes, 173 Or. 267, 273, 145 P.2d 299 (1944).[5] Because the fiduciary duty is imposed as a result of the confidential relationship between the parties, it continues while the parties contemplate divorce, as long as the confidential relationship remains intact and the parties are not dealing at arms' length through separate agents or attorneys. In Vai v. Bank of America National Trust & Savings Ass'n, 56 Cal.2d 329, 15 Cal. Rptr. 71, 364 P.2d 247 (1961), the California Supreme Court fully examined this issue and found that a fiduciary duty to disclose community property[6] when negotiating a property settlement can arise from either the confidential relationship between husband and wife or from control by one person over the property of another. The evidence in this case is undisputed that husband had sole control over the family business, but we need not rely on that fact, because we find that the confidential relationship between the parties continued throughout the negotiations and after the decree was signed.
The record shows that the parties were not negotiating a property settlement with a recognition that their interests were adverse or dealing at arms' length. They continued to live together in the family home with their two children through the entire time. Wife continued to rely on husband's statements regarding the parties' resources, his future intention to support her and their children and their inability to afford separate counsel. The attorney hired to represent them acted only as a *1373 scrivener and could not and did not provide independent advice to either party.[7] Under these circumstances, their confidential relationship continued. Husband had a duty to deal with his wife fairly and to make a full and frank disclosure of all circumstances materially bearing on the contemplated agreement, including a full disclosure of marital assets. When wife asked husband the value of the family business, husband had a duty to answer accurately and honestly.
When a breach of fiduciary duty, misconduct or overreaching occurs in the entry of a decree incorporating a property settlement agreement, the aggrieved party can directly attack the decree under ORCP 71 B(1)(c). See Black v. Black, 274 Or. 359, 364, 546 P.2d 1074 (1976); Harder and Harder, 49 Or. App. 582, 584, 619 P.2d 1367, rev. den., 290 Or. 551 (1981). Although the law favors finality of judgments, we do not value that objective enough to allow a party to profit from misrepresentations of the kind here. In this case, husband portrayed a failing, valueless business to wife and their attorney. The record shows that husband's representation was not accurate and truthful. Those statements violated his fiduciary obligation to make a full and fair disclosure of the parties' assets and offend basic contract principles against enforcing agreements made in reliance on intentional misstatements. Under the circumstances, the agreement must be set aside.
Reversed and remanded with instructions to set aside the property provisions of the decree; affirmed in all other respects. Costs to appellant.
NOTES
[1]  The Marital Settlement Agreement provided, in pertinent part:

"I
"The parties shall share jointly the care and custody of the minor children HAL EDWARD ELTZROTH, III, born 18 January 1967, aged 14, and KAREN ELAINE ELTZROTH, born 10 August 1968, aged 12. No support for the children shall be paid between the parties unless ordered by the Court.
"II
"Husband shall make all payments for upkeep of the family home, including mortgage, taxes, insurance, utilities, and maintenance, and shall provide automobile insurance, gasoline, and maintenance for Wife's automobile, and major medical insurance coverage for Wife, as long as Wife resides full-time in the family home. However, when Wife obtains employment, she shall make reasonable contributions for these expenses.
"Wife agrees to use due diligence to obtain gainful employment at earliest opportunity. In no event shall Husband be directly responsible for these expenses for more than 5 years from date of Decree.
"Either party may move from the family home at any time, subject to the following:
"1) If Husband moves, he shall continue payments for the house, Wife's transportation, support (paragraph III), and medical insurance if Wife is unable to make said payments. Husband shall make a reasonable contribution to support of the children if the children remain with Wife.
"2) If Wife moves, she shall assume full financial responsibility for herself. Husband shall continue to pay house expenses if he continues residence in the house, and shall make a reasonable contribution to support of the children if the children move with the Wife.
"III
"Husband shall pay for support of Wife, the sum of $50. per month until Wife dies, remarries, or moves from the family home or until further order of the Court.
"IV
"Property shall be divided as follows:
"The parties shall own the family residence, known as 7395 S.W. Miller Hill Rd., and legally described as:
"* * *
"as tenants-in-common. When Wife becomes self-supporting, the resident(s) of the home shall pay mortgage, taxes, insurance, and maintenance as set-off for one-half fair rental value otherwise owed to non-resident. The parties do not intend to alter statutory partition rights by this agreement.
"Husband shall have as his sole and separate property his interest in his business, MEDOFF-ELTZROTH, a partnership.
"Wife shall have as her sole and separate property the 1973 Ford LTD automobile owned by Husband's business, the stereo, the coffee table, end tables, lamps, sewing machine, personal items, and chairs in living room, and the real property known as 6131 N.W. Thompson Road, Portland, Oregon, ownership of which is in litigation, if MEDOFF-ELTZROTH acquires property in litigation. Wife agrees to compensate the partnership for improvements and legal expenses, if she acquires the property.
"Husband shall have his bottle collection, family china and personal items. Furnishings shall remain in the home for the benefit of the children, but shall be divided among the parties in equal shares should both parties move from the home.
"V
"The parties acknowledge that the desires of the children shall be given first consideration in any determination of custody and visitation or personal plans of the parties.
"VI
"The parties acknowledge that each has been advised to obtain advice from independent legal counsel of his/her choice.
"VII
"This agreement shall be presented to the Court with the request that it be incorporated in Decree of Dissolution of Marriage at first available opportunity. This agreement shall have full effect to transfer interest in property described herein.
"* * *"
[2]  In our view, several inequities in the provisions for spousal support and property division appear on the face of the agreement. Although a court may approve and ratify an agreement by incorporating it into the decree without applying an analysis of the statutory factors set out in ORS 107.105(1)(c), McDonnal and McDonnal, 293 Or. 772, 652 P.2d 1247 (1982), it may and should reject an agreement made in anticipation of a dissolution when it is inequitable on its face. Bach and Bach, 27 Or. App. 411, 555 P.2d 1264 (1976).
[3]  Husband's testimony at the hearing supports wife's testimony:

"* * * [A]nd it's my personal opinion, when you have two attorneys, as they work one against the other, and pretty quick the house is sold to pay the attorneys or  what? Vice versa or however that happens."
[4]  The attorney testified:

"Q. Were you ever aware of the value of the partnership interest at the time you represented the parties?
"A. No, I was not.
"Q. What was told to you by Mr. Eltzroth about the value of the business?
"A. Two things were basically represented to me. One was that it had an insignificant value. The second was that, if this was to be a matter of negotiation in the divorce proceeding, the parties would have to seek separate counsel.
"He would not agree to pursue that matter.
"THE COURT: What brought that subject up?
"THE WITNESS: Mrs. Eltzroth brought it up several times.
"THE COURT: Did she want or think she was entitled to some interest in the business?
"THE WITNESS: Yes, she did."
[5]  We recognized the fiduciary duty to disclose assets between parties contemplating marriage as recently as Knoll and Knoll, 65 Or. App. 484, 487, 671 P.2d 718 (1983). Although the facts here differ, the legal principle remains the same, as long as the confidential relationship between the parties continues.
[6]  Although we recognize that community property law often differs from Oregon law, we see no reason for a different rule in this context. It is entirely consistent with the requirement that a property division be "just and equitable," ORS 107.105(1)(f), that the parties be obliged to make a full and fair disclosure of marital assets, as long as the confidential relationship exists.
[7]  We do not condone the conduct of the attorney in continuing to represent both parties in this case. Canon 5 of the Oregon Code of Professional Responsibility allows an attorney to represent co-petitioners in a divorce action only in very limited circumstances. See Legal Ethics Opinion No. 218. When the proposed "agreement" between the parties presents obvious inequities on its face and raises questions and conflicts over the disposition of a substantial marital asset, it is the clear duty of the attorney to withdraw and advise the parties to seek independent counsel.


                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/

                                                                      March 2, 2015

In the Court of Appeals of Georgia
 A14A1900. JACKSON v. THE STATE.

      MCMILLIAN, Judge.

      McKenzie Sharrod Jackson was convicted by a jury of two counts of child

molestation and sentenced to concurrent ten year terms. He appeals, arguing that his

conviction was based solely on his uncorroborated confession and therefore must be

reversed.1 We disagree and affirm.

      1
        Although Jackson frames his enumerations in terms of the denial of his
motion for directed verdict, the denial of his motion for new trial based on the
sufficiency of the evidence, and a challenge to the sufficiency of the evidence under
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), we consider
his contentions together since they assert the same issues and, in this instance, invoke
the same standard. E.g., Hargrove v. State, 289 Ga. App. 363 (657 SE2d 282) (2008)
(standard for review of denial of motion for directed verdict is the same as that used
to assess the sufficiency of the evidence).
        The record shows that on the night of the incident, the victims, K. F. and H. R.,

who were both fourteen at the time, were home alone at K. F.’s mother’s house while

the mother was working at an overnight home health care job. K. F.’s mother called

the house the next morning to wake the girls, but no one answered so she left work

and drove to the house. As was her habit, she checked the caller ID on her home

phone when she arrived at her house and saw that a call had come in late the night

before from a number she did not recognize. K. F.’s mother called back the number,

and Jackson,2 whom she knew from around the neighborhood, answered the phone

and told her that he had called looking for her. However, she found this suspicious

since Jackson had never called her before, so she took her daughter’s phone and

checked her messages after she left for school. She saw that Jackson and her daughter

had been texting back and forth the night before, and she discerned from one of the

text messages that Jackson had arrived at her house around 1:00 a.m. on February 23,

2010.

        Both K. F. and H. R. were subsequently interviewed by a forensic interviewer

from Patticake House Children’s Advocacy Center. The victims told the interviewer

that Jackson came to K. F.’s mother’s house between 1:00 and 1:30 a.m. on February

        2
            Jackson was twenty-eight years old at the time.

                                             2
23, 2010. Jackson, K. F., and H. R. spent a brief time talking in the living room, and

then Jackson and K. F. went into one of the bedrooms and had sexual intercourse.

Jackson left that bedroom and went into another bedroom where H. R. was located,

and he put on a condom and had sexual intercourse with H. R. K. F. and H. R. also

told the interviewer that H. R. had semen on her after she had intercourse with

Jackson.

         Jackson was interviewed by police less than 24 hours after the incident and

again the next day. The first time he was interviewed, Jackson admitted to police that

he went to the house where the girls were staying, but he denied any type of sexual

conduct occurred while he was there. However, the next day Jackson gave another

statement to police, in which he admitted to engaging in sexual conduct with both

victims. During this interview, Jackson told police that shortly after he arrived, he and

K. F. went into one of the bedrooms and she masturbated him until he “leaked fluids,”

and that he then went into another bedroom with H. R. and she masturbated him until

he ejaculated. This statement was reduced to writing and introduced into evidence at

trial.

         Jackson was placed under arrest and subsequently charged with two counts of

statutory rape (one involving each victim) and numerous counts of child molestation.

                                           3
Both victims testified at trial and although their testimony differed in some respects

from their pre-trial statements,3 both victims testified that Jackson came to the house

where they were staying in the early morning hours of February 23, 2010, after they

had been talking and texting for several hours. The victims said that Jackson first had

sex with K. F. in one of the bedrooms, and that he left that room and went into a

different bedroom with H. R., and had sex with her until he ejaculated. Neither victim

testified that she masturbated Jackson, and K. F. specifically denied that she touched

Jackson’s penis. However, Jackson, who testified at trial and read his incriminating

statement to the jury during cross-examination by the State, maintained his version

of events accurately portrayed what happened that night.

      A jury convicted Jackson of Count 7, which alleged that he had K. F. touch his

penis with her hand, and Count 8, which alleged that he had H. R. touch his penis

with her hand, and found him not guilty of the remaining charges. Jackson appeals,

arguing that his conviction must be reversed because the jury’s verdict was based

solely on his uncorroborated confession.

      3
        These statements were played for the jury at trial. One instance of a
discrepancy between K. F.’s taped interview and her trial testimony concerned
whether she and Jackson had sex in her bedroom or her mother’s bedroom.

                                           4
      Under former OCGA § 24-3-53,4 “confessions are to be received with care,”

and must be corroborated. “Nevertheless, a confession, freely and voluntarily made,

is evidence of the highest character, and any corroboration thereof will be sufficient

to sustain a conviction.” (Citation and punctuation omitted.) Merritt v. State, 292 Ga.

327, 329 (1) (737 SE2d 673) (2013). Further, “the corroborating evidence or

circumstances need not connect the defendant definitely with the perpetration of the

offense. Corroboration in any material particular satisfies the requirements of the law,

[and t]he amount of evidence necessary to corroborate a confession is for the jury to

decide.” (Citation and punctuation omitted.) Hargrove v. State, 289 Ga. App. 363,

365 (1) (657 SE2d 282) (2008). Rogers v. State, 290 Ga. 401, 403 (1) (721 SE2d 864)

(2012) (“A confession need be corroborated only by any particular, not every

particular.”) (citation and punctuation omitted), disapproved on other grounds, State

v. Sims, ___ Ga. ___ (2) (a) (Case No. S14A1657, decided February 2, 2015). When

a jury, properly charged, finds that a confession, freely and voluntarily given, “is

corroborated, it need not find proof of guilt beyond a reasonable doubt from evidence

      4
        This case was tried in August 2012, and thus the new Evidence Code does not
apply. See Ga. L. 2011, pp. 99, 214 § 101. And in any event, the provision of former
OCGA § 24-3-53 was carried over without substantial change to the new Evidence
Code, where it may be found at OCGA § 24-8-823.

                                           5
separate from and wholly independent of the confession, and it instead may consider

the confession along with other facts and circumstances independent of and separate

from it.” (Citation and punctuation omitted.) Merritt, 292 Ga. at 329-330.

        In this case, Jackson’s confession was sufficiently corroborated by the

evidence showing that Jackson engaged in a series of text messages with the teenage

victims beginning late on the night of February 22, 2010, which continued into the

early morning hours of February 23, 2010, and culminated in Jackson arriving at the

house where K. F. and H. R. were staying between 1:00 and 1:30 a.m. Jackson and

the victims talked a short while in the living room, and then he and K. F. went into

a bedroom together and engaged in sexual activity. Jackson then left that bedroom

and went into another bedroom with H. R., and engaged in sexual activity with her

until he ejaculated.

      Despite this evidence, Jackson argues his confession was not sufficiently

corroborated because neither victim testified that they touched his penis and K. F.

specifically denied this conduct took place. However, as we have explained on

numerous occasions, “it is the role of the jury to resolve conflicts in the evidence and

to determine the credibility of witnesses, and the resolution of such conflicts

adversely to the defendant does not render the evidence insufficient.” (Citation and

                                           6
punctuation omitted). Merritt, 292 Ga. at 330 (1). In this case, Jackson’s statement

to police and his trial testimony were sufficiently corroborated in numerous

particulars, and the evidence presented at trial was sufficient under the standard of

Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Smith v. State,

295 Ga. 283, 287 (1) (b) (ii) (759 SE2d 520) (2014); Merritt, 292 Ga. at 330 (1);

Hargrove, 289 Ga. App. at 366 (1).

      Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.

                                         7


248 So.2d 717 (1971)
EMPLOYERS NATIONAL INSURANCE COMPANY, a Corporation,
v.
Walter Cleveland HOLLIMAN, Jr., et al.
6 Div. 799, 799X.
Supreme Court of Alabama.
May 27, 1971.
Rehearings Denied June 17, 1971.
*718 Phelps & Owens, Tuscaloosa, for appellant.
*719 Turner & Turner, Tuscaloosa, for appellee Abbie E. Stuart.
Roberts & Davidson, Tuscaloosa, for appellee Phoenix Insurance Co.
BLOODWORTH, Justice.
This is an appeal from a final decree rendered in a declaratory judgment proceeding in equity instituted by the Employers National Insurance Company to determine whether a policy of automobile liability insurance which it issued to respondent, Robert P. Sellers, the named insured, was in full force and effect at the time of an accident.
The automobile purportedly covered by the liability policy, was being operated by respondent, Walter C. Holliman, Jr., at the time of the accident and resulted in injuries to respondent, Mrs. Abbie Stuart. Also joined as respondent is The Phoenix Insurance Company, the uninsured motorist insurance carrier for Mrs. Stuart. A crossbill was filed by Mrs. Stuart against Phoenix seeking a determination that she is entitled to coverage under the uninsured motorist provisions of her policy with Phoenix. Phoenix's demurrer to the crossbill was sustained by the trial court. The case was heard by a jury with its findings being formulated as answers to interrogatories submitted to it.
Employers takes this appeal from the trial court's decree finding that the liability policy issued by Employers was in full force and effect at the time of the automobile accident. A cross-appeal has been filed by Mrs. Stuart, assigning as error the action of the trial court in sustaining the demurrer to her cross-bill.
The primary question before us is whether Sellers (the named insured) possessed an insurable interest in the automobile at the time of the accident sufficient to support the liability insurance policy.
We have concluded that no such insurable interest existed; consequently, the trial court's decision must be reversed. Likewise, we conclude that there was reversible error in the trial court's action in sustaining demurrer to Mrs. Stuart's cross-bill. In this posture of the case, we need not consider other grounds assigned as error.
The evidence adduced at the trial indicated that Sellers (the named insured) agreed to assist a friend, Walter C. Holliman, Sr. (sometimes referred to as the "principal operator" or "Holliman, Sr."), in purchasing an automobile. A car was selected by Holliman, Sr., and purchased in March 1967 with Sellers signing a promissory note for the purchase price. The bill of sale and license tag registration were issued in the name of Sellers. Holliman, Sr., took possession of the car, garaged it at his home, and made all payments on the note. In October 1967 Sellers applied for, and secured, an automobile liability insurance policy on the automobile through the Alabama Assigned Risk Plan, the policy being issued in his name by Employers. In his application for insurance, Sellers represented that he was the operator of the car 90% of the time and that David C. Holliman (a son of Holliman, Sr.) operated the car 10% of the time. The evidence indicates that Holliman, Sr., paid all of the premiums on this policy. In November 1967, the license tag registration which originally had been issued in Sellers's name, was transferred by him to Mary Holliman, the wife of Holliman, Sr. On September 30, 1968, while being operated by Walter Holliman, Jr. (a son of Holliman, Sr.), the automobile collided with a car owned by Mrs. Stuart, in which she was riding as a passenger, resulting in her injuries.
After Mrs. Stuart instituted suit against Walter Holliman, Jr. for personal injuries, Employers initiated this declaratory judgment action seeking a determination that the policy was not in full force and effect at the time of the accident and praying that it be relieved from defending Mrs. Stuart's suit and from paying any final judgment rendered therein.
*720 At the conclusion of the trial eight interrogatories were submitted to the jury and were answered as follows:

"JURY VERDICT
"1. Did the Respondent, Robert Patrick Sellers, represent to the Complainant, Employers National Insurance Company, that he was the registered owner of the Comet automobile involved at the time of the procurement of the liability insurance policy issued by Employers National Insurance Company? (X) Yes. ( ) No.
           "/s/ William L. Britt
                 Foreman
"2. Did the Respondent, Robert Patrick Sellers, own the Comet automobile involved at the time the policy of insurance of Employers National Insurance Company was acquired? (X) Yes. ( ) No.
           "/s/ William L. Britt
                 Foreman
"3. If Respondent, Robert Patrick Sellers, owned the Comet automobile involved at the time the policy was acquired, had he transferred ownership to Walter Cleveland Holliman, prior to the accident? ( ) Yes. (X) No.
           "/s/ William L. Britt
                 Foreman
"4. If there was a misrepresentation made, was it made by the Respondent, Robert Patrick Sellers, with actual intent to deceive Complainant, Employers National Insurance Company? ( ) Yes. (X) No.
           "/s/ William L. Britt
                 Foreman
"5. If there was a misrepresentation made by the Respondent, Robert Patrick Sellers, did the matter misrepresented increase the risk of loss? ( ) Yes. (X) No.
           "/s/ William L. Britt
                 Foreman
"6. Did Employers National Insurance Company waive its right to deny coverage on the Comet automobile involved on account of any misrepresentation of ownership? (X) Yes. ( ) No.
           "/s/ William L. Britt
                 Foreman
"7. If you are reasonably satisfied from the evidence that there was a misrepresentation of fact in the application for liability insurance, are you further reasonably satisfied that this misrepresentation was waived by the Employers National Insurance Company? (X) Yes. () No.
           "/s/ William L. Britt
                 Foreman
"8. At the time of the issuance and receipt by Robert Patrick Sellers of the policy of insurance issued by Employers National Insurance Company, was Robert Patrick Sellers the sole owner of the 1967 Comet automobile? (X) Yes. ( ) No.
           "/s/ William L. Britt
                 Foreman"
The trial court confirmed and adopted the jury's findings in its final decree and declared that on the date of the accident Sellers had an insurable interest in the automobile.
On this appeal, Employers argues that the trial court's finding of an insurable interest in Sellers on the date of the accident was erroneous. Employers points to our recent decision in Bendall v. Home Indemnity Company, 286 Ala. 146, 238 So. 2d 177 (1970), rendered subsequent to the trial court's decree in this case, as being dispositive of this issue.
Appellee Phoenix (Mrs. Stuart's insurer) replies that the facts support the trial court's conclusion, and that the Bendall decision is not governing because of factual distinctions. Furthermore, Phoenix contends *721 that there was a "material variance" between the pleadings and proof in the trial of the cause.
We think that our decision in Bendall does present a factual situation analogous to this case. In Bendall, the named insured Mrs. Davis, and her husband, had signed a promissory note for an automobile purchased by her sister, Wanda McCutcheon. The bill of sale and license tag registration for the car were issued to Wanda, and Wanda made all payments on the note. An automobile liability insurance policy on the car was issued by the Home Indemnity Company to Mrs. Davis. Wanda was involved in an accident while driving the car, after which Home Indemnity Company instituted a declaratory judgment proceeding seeking a declaration that the policy was void. On appeal, this court affirmed the trial court's finding that the named insured (Mrs. Davis) had no insurable interest in the automobile sufficient to support the liability coverage of the policy since the named insured was not primarily liable for injury to persons or property arising out of the automobile's operation.
In discussing the nature of an insurable interest under an automobile liability policy, we quoted extensively from Ocean Accident & Guarantee Corporation v. Bear, 220 Ala. 491, 125 So. 676, where it was observed:
"`If the "assured" has such abiding interest in the use of the car in his business that he may become legally liable to others for injuries resulting from its operation, he has a beneficial interest, an insurable interest. (Citations Omitted)" Bendall v. Home Indemnity Company, supra.
Likewise in Bendall, we quoted from Blashfield Automobile Law and Practice, Third Edition, Vol. 7, § 291.4, at pages 164 and 165:
"`With respect to liability insurance, an insurable interest may exist apart from ownership of the automobile. The character of liability insurance is quite different from insurance against damage to, or loss of, the property insured, where the insured is required to have some real interest in the property insured; in the case of liability insurance the risk and hazard insured against is not the damage to, or loss of, the property named in the policy, but against loss and injury caused by the use of the property therein named, for which the insured might be liable, and the right of the insured to recover does not depend on his being the holder, in fact, of either a legal or equitable title or interest in the property, but whether he is primarily charged at law or in equity with an obligation for which he is liable.'" [Emphasis supplied]
After recounting the pertinent facts, our court concluded in Bendall that it found "nothing to show that Mrs. Davis had such abiding interest in the use of the car in her business, or otherwise, that she might become legally liable to others for injuries resulting from its operation."
We think the Bendall decision and the cases cited therein clearly recognize that the question of what constitutes an insurable interest under an automobile liability policy involves a determination as to whether the named insured would be liable for injury to persons or property which might arise out of the operation of the described automobile. Applying this test to the case at bar, we conclude that the facts do not sustain a finding of an insurable interest in Sellers.
A comparison between the similar and dissimilar facts in Bendall and the present case may better illustrate our conclusion.
In each case we find the following similar facts: (1) The note to finance the purchase of the car was signed by the named insured; (2) the insurance policy was issued in the name of the obligor on the note; (3) the named insured used the car occasionally but never claimed any interest therein; (4) the named insured always *722 asked permission of the principal operator to use the car; (5) the named insured never limited the principal operator's use of the car; (6) the principal operator never asked the named insured's permission to use the car; (7) payments on the note were always made by the principal operator; (8) the car was garaged at the home of the principal operator; (9) the insurance premiums were paid by the principal operator; (10) the insurance policy was kept by the principal operator.
The notable dissimilar fact in the two cases is that in Bendall the automobile was purchased by, and the license tag issued to, the principal operator (Wanda), while in the present case (although the automobile was selected by Holliman, Sr.) the bill of sale and tag were issued to the obligor on the note (Sellers). However, we think this dissimilarity loses its significance, if any, when it is considered that in the instant case, Sellers transferred the license tag registration to Mrs. Holliman prior to the accident. In our opinion, the facts clearly demonstrate that Sellers did not have, at the time of the accident, such a relationship to Mr. or Mrs. Holliman, Sr. so that Sellers would be liable for injury to persons or property which might arise out of the operation of the car.
Nonetheless, Phoenix contends that Sellers did possess an insurable interest and cites in support of this theory Title 36, § 74(46) (b) (c), § 74(55) (Motor Vehicle Safety-Responsibility Act). The argument advanced is that these sections require the Director of Public Safety to suspend the license of each operator and all registrations of each owner of a motor vehicle involved in an accident resulting in personal injury or property damage if no proof of financial responsibility is furnished. Since it is suggested that Sellers could have his registration on the automobile involved in the accident suspended, as well as those of other automobiles owned by him, in this respect he did possess an insurable interest. The answer to this contention is self-evident. Sellers was not at the time of the accident the registered owner of the vehicle involved in the accident so that he would risk the loss of registration. We reiterate our previous conclusion that the test of an "insurable interest" in an automobile liability policy involves a determination as to whether the named insured would be liable for injury to persons or property arising out of the operation of the insured automobile.
Phoenix further contends that there was a "material variance" between the pleading and proof offered by Employers. It is argued that Employers alleged in its bill of complaint that Sellers transferred title to the automobile to Holliman, Sr. while the evidence tended to indicate that the license tag was in fact transferred to Mrs. Holliman. We do not agree that this was a "material variance." The relevant fact is that the license tag was transferred from Sellers's name; this the bill alleged and this the proof showed. The fact that the registration of the automobile was not in Sellers's name is material, the fact as to whom the registration was listed is not material, in determining whether Sellers had an insurable interest. Additionally, we have said that it is "well settled that in equity it is not necessary to accurately prove every detail of averment as alleged provided that proof is made of such averments as are essential to the relief sought." Bobo v. City of Florence, 260 Ala. 239, 69 So.2d 463; Food Centers, Inc. v. Davis, 286 Ala. 629, 244 So.2d 576.
Nor, do we believe that the jury's findings militate against our conclusion. We have carefully examined the questions submitted to the jury. None involved the issue as to whether the named insured, Sellers, had an insurable interest in the automobile at the time of the accident. Rather, this issue was determined by the trial judge after the jury's findings were reached.
Likely, the very able and conscientious trial judge would have reached a different *723 conclusion had our decision in Bendall been announced prior to the rendition of his decree.
Lastly, Phoenix suggests that the presumption in favor of findings of fact made by a trial judge when the evidence is heard ore tenus and is disputed, precludes our reversal of the decree unless it is determined to be plainly and palpably wrong. But, no such presumption obtains where the trial judge took an erroneous view of the law as applied to the facts. Brown v. Oldham, 263 Ala. 76, 81 So.2d 331 (1955); Pruitt v. Key, 281 Ala. 433, 203 So.2d 450 (1967). We think such is the situation here where the trial court made a finding of an insurable interest in Sellers. Therefore, the presumption suggested has no application.
We next turn to a consideration of the propriety of the trial court's action in sustaining Phoenix's demurrer to the cross-bill filed by Mrs. Stuart.
In discussing the nature of a demurrer filed in a declaratory judgment action, Mr. Justice Goodwyn writing for the court in Moore v. City of Fairhope, 275 Ala. 506, 507, 156 So.2d 366, 367 (1963), observed:
"* * * If this were the usual equity case, it would be appropriate to test the merits of the bill by demurrer, but in a declaratory judgment proceeding the only question ordinarily determined on demurrer is whether the bill states the substance of a bona fide justiciable controversy which should be settled. The well-established rule is that if the bill shows such a controversy, it is sufficient to withstand a demurrer directed to it. In such situation, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. * * *"
Here, though the trial court sustained demurrer to the cross-bill, it made no reference to any of the grounds of demurrer addressed to a specific aspect. In such an instance, on appeal we consider only those grounds addressed to the cross-bill as a whole. Clark v. Case, 267 Ala. 229, 100 So.2d 747 (1957); City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551 (1955). Thus, the trial court's ruling sustaining the demurrer should be reversed if any aspect of the cross-bill is free from the demurrer interposed. Clark v. Case, supra; Morgan Plan Co. v. Vellianitis, 270 Ala. 102, 116 So.2d 600 (1959).
The grounds of demurrer addressed to the bill as a whole claim, in substance, that the bill does not state a justiciable controversy because it seeks a determination which is moot or premature, the bill is multifarious, and the bill does not contain equity.
The cross-bill alleges inter alia that Mrs. Stuart was injured in an automobile accident as a proximate consequence of the negligence of Holliman, Jr.; that the automobile being driven by Holliman, Jr., was insured by a liability policy issued by Employers, but that Employers has denied coverage under said policy; that Phoenix had issued to Mrs. Stuart, prior to the accident, uninsured motorist insurance coverage insuring her against loss for bodily injuries sustained as a result of the negligent operation of an uninsured motor vehicle; and, that Phoenix claims that it is not obligated under the terms of its uninsured motorist policy until the liability policy issued by Employers is declared to be null and void. The cross-bill further avers that a justiciable controversy exists between Mrs. Stuart and Phoenix as to whether she is insured, and as to the amount of coverage to which she is entitled under the uninsured motorist provisions of her policy. The cross-bill also seeks a money judgment.
We believe that the allegations of the cross-bill are sufficient to show that a justiciable controversy exists between Mrs. Stuart and Phoenix. It follows then that the trial court erred in sustaining the demurrer to the cross-bill.
*724 To summarize, we hold that the automobile liability policy issued by the Employers National Insurance Company to Robert P. Sellers was not in full force and effect at the time of the accident because the named insured had no insurable interest in the described automobile. We also hold that the demurrer of The Phoenix Insurance Company to Mrs. Stuart's cross-bill should have been overruled because the cross-bill alleged a justiciable controversy between the parties. The decree of the trial court is due to be reversed and remanded for entry of a decree in conformity with this opinion and for further proceedings on the cross-bill.
Reversed and remanded with directions.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur.


736 F.Supp.2d 866 (2010)
John NICHOLAS, Plaintiff,
v.
Cpl. Ramone CARTER, Lt. Lancaster, c/o John Doe, Ms. Queen, and c/o Dutton, Defendants.
Civ. No. 09-134-SLR.
United States District Court, D. Delaware.
September 10, 2010.
*867 John Nicholas, Plaintiff, pro se.
Marc P. Niedzielski, Esquire, and Michael F. McTaggart, Esquire, Deputy Attorneys General of the State of Delaware Department of Justice, Wilmington, DE, *868 for Defendants Carter, Lancaster, & Dutton.
James E. Drnec, Esquire, of Balick & Balick, LLC, Wilmington, DE, for Defendant. Queen.

MEMORANDUM OPINION
SUE L. ROBINSON, District Judge.

I. INTRODUCTION
On March 3, 2009, John Nicholas ("plaintiff") filed this action under 42 U.S.C. § 1983 against Cpl. Ramone Carter ("Carter"), Lt. Lancaster ("Lancaster"), Correctional Classification Officer John Doe, Ms. Queen ("Queen"), and Matthew Dutton ("Dutton") (collectively, "defendants") in their individual and official capacities alleging a deprivation of constitutional rights due to a failure to act on his complaints of being in danger of being sexually assaulted by his cellmate, followed by subsequent assault.
Plaintiff filed a grievance on each claim in this complaint and, plaintiff claims, exhausted all remedies within the DOC. (D.I. 2 at ¶ 13) Plaintiff previously filed for a preliminary injunction, a temporary restraining order, and request for counsel. (D.I. 4; D.I. 7; D.I. 11; D.I. 29) The court denied these motions on September 18, 2009. (D.I. 52 at ¶ 1) The parties have conducted limited discovery, and defendants Carter, Lancaster, Dutton (collectively, "State defendants") and Queen now move for summary judgment on all claims. (D.I. 51, 53) The court has jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(a)(3). For the reasons that follow, the court grants in part and denies in part defendants' motions for summary judgment.

II. BACKGROUND
Plaintiff John Nicholas is a prisoner of the State of Delaware, and was in custody at the James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware at the time of the complained-of incidents. (D.I. 2 at ¶ 7) While in custody at JTVCC, plaintiff was housed in Building 21, unit A in a two-man cell with cellmate Barnard Drozdowski ("Drozdowski"). (Id. at ¶¶ 15, 16) State defendants are employees of the Delaware Department of Correction ("DOC"); defendant Queen is a mental health employee of Correctional Medical Service ("CMS"), the medical provider at JTVCC, who at all relevant times held the position of staff clinician or therapist in Building 21. (Id. at ¶¶ 8-12; D.I. 19 at 2) Defendant Carter was at all times relevant to this case assigned to the JTVCC and, plaintiff contends, legally responsible for operations in units A, B, C, and D of Building 21. (D.I. 2 at ¶ 8) Defendant Lancaster is a correctional officer with the DOC, assigned to JTVCC and, plaintiff contends, was at all relevant times responsible for the overall operation and supervision of defendants Carter and Doe in Building 21. (Id. at ¶ 9) Defendant Dutton is a correctional officer with DOC who, plaintiff contends, at all times relevant held the position of inmate grievance chairperson ("IGC") and was legally responsible for the grievance procedure at JTVCC. (Id. at ¶ 12)
Plaintiff, on October 13, 2008, submitted a request for protective custody to mental health.[1] (Id. at ¶ 23) On October 15, 2008, Drozdowski again made sexual comments towards plaintiff, despite the fact that two days earlier plaintiff asked him not to make such comments anymore. (Id. at *869 ¶¶ 14, 17-18) When plaintiff told Drozdowski that he would alert a correctional officer if Drozdowski continued to make such comments, Drozdowski became violent, pushed plaintiff against the wall, and threatened to kill him if he "snitched." (Id. at ¶¶ 19-22) Plaintiff feared Drozdowski would rape him, and alleges that he expressed these fears to Carter about one half-hour after the above altercation. (Id. at ¶¶ 22-24, 29-31) Plaintiff alleges that Carter was dismissive of his request to be moved or placed in protective custody, despite the fact that he allegedly stated that Drozdowski's previous cellmate "signed on" for protective custody for similar reasons.[2] (Id. at ¶¶ 26-28, 31-33) Carter denies that plaintiff ever requested to be moved out of his cell due to fears of Drozdowski. (D.I. 52 at ¶ 11) Carter also denies any personal knowledge that Drozdowski was a risk. (Id.)
Plaintiff alleges that, while Carter escorted him to an unrelated hearing on October 15, 2008, plaintiff again pleaded to be placed in protective custody.[3] (D.I. 2 at ¶ 35) Plaintiff alleges that, in response, Carter stated he could talk to mental health to see if they would help because he was not going to. (Id. at ¶ 36) Approximately one hour after Carter escorted plaintiff back to his cell, he returned to take plaintiff to a meeting with Queen.[4] (Id. at ¶ 37) At this meeting, plaintiff told Queen about Drozdowski's threats and sexual comments. (Id. at ¶ 38, D.I. 53 at ¶ 10) Plaintiff contends that Queen was dismissive and joked about the nature of Drozdowski's threats. (D.I. 2 at ¶ 39) Specifically, plaintiff claims that Queen "started to laugh and asked if it was `man love.'" (D.I. 2 at ¶ 39) Defendant Queen denies that plaintiff told her of Drozdowski's behavior and that she laughed or used the phrase "man love" during her meeting with plaintiff. (D.I. 19 at 3) Plaintiff requested that he be placed in protective custody because he was afraid for his life. (D.I. 2 at ¶ 40) Queen explained that she had no power to move plaintiff or his cellmate; rather, it was DOC's job.[5] (D.I. 2 at ¶¶ 40-41; D.I. 53 at ¶ 10) While being escorted back to his cell after this meeting, plaintiff again asked Carter for protection, but Carter told him not to ask again and threatened him if he did.[6] (D.I. 2 at ¶¶ 41-42)
Plaintiff asserts that the following day (October 16) he wrote a letter to Lancaster explaining Carter's denial of protective custody, and again requesting placement in protective custody. (Id. at ¶ 46; D.I. 2, *870 ex. C) Lancaster, however, never wrote back. (Id. at ¶ 47) Lancaster avers that he never received any correspondence from plaintiff, and State defendants' brief points out that plaintiff stated in his deposition that he did not know whether Lancaster ever received the letter. (D.I. 52 at ¶¶ 7, 9) That same day, plaintiff filed a grievance requesting to be placed in protective custody, or moved to another cell or tier. (D.I. 2 at ¶ 48; D.I. 2, ex. B) Plaintiff asserts that Dutton failed to respond to the grievance in a timely manner, not answering until approximately one month later (on November 13, 2008) and claiming that it was too late to take action as plaintiff was no longer housed with Drozdowski at that point.[7] (Id. at ¶¶ 49-51) Dutton states that on October 23, 2008, he received the grievance dated October 16, 2008; he denied the grievance because the relief sought (cell reassignment) was not grievable and because plaintiff had already been moved out of his cell by the time of the receipt of the grievance. (D.I. 46 at ¶ 14; D.I. 52 at ¶¶ 8-9; D.I. 2, ex. B)
On the afternoon of October 18, 2008, plaintiff awoke to find himself being molested by Drozdowski. (D.I. 2 at ¶¶ 55-56) When plaintiff yelled for assistance, Drozdowski assaulted him to the point where plaintiff lost consciousness, and attempted intercourse, stopping only upon hearing the keys of a correctional officer. (Id. at ¶¶ 56-59) Correctional officer Madeline Lynch ("Lynch") returned to the tier, where she found plaintiff with blood on his sweater. (Id. ¶ 61) Plaintiff explained that Drozdowski had assaulted him. (Id. ¶ 62) Lynch took plaintiff to the medical unit, and plaintiff later told mental health that Drozdowski had tried to rape him. (Id. at ¶¶ 62-63) Mental health informed the DOC, and plaintiff was charged with fighting, but later found not guilty after Drozdowski admitted to the assault.[8] (Id. at ¶¶ 63-64; D.I. 21 at ¶ 64)

III. STANDARD OF REVIEW
A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d *871 Cir.1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

IV. DISCUSSION
Plaintiff asserts that defendants' actions constituted a deliberate indifference to plaintiffs need for protection and contributed to the assault on plaintiff. (D.I. 2 at ¶ 66) Specifically, plaintiff claims that defendants owed a duty of reasonable care to protect him from known, obvious life-threatening risk and assault and to insure proper protection and procedures to carry out this duty. (Id. at ¶ 67-68) Plaintiff further complains that defendants' breach of this duty resulted in both physical injuries and psychological trauma. (Id. at ¶¶ 70, 75-77) Plaintiff contends that defendants violated his Eighth and Fourteenth Amendment rights against cruel and unusual punishment and of due process and equal protection. (Id. at 72)
Defendants now move for summary judgment. State defendants contend that plaintiff cannot establish a claim for liability against Dutton or Lancaster, because they had no personal involvement in the allegations and cannot be held liable on the basis of respondeat superior, and because plaintiff has provided insufficient evidence to support a failure to protect claim against Carter. (D.I. 52 at ¶ 14) State defendants further claim that they are immune from liability in their official capacity pursuant to the Eleventh Amendment and the doctrine of sovereign immunity, and immune from liability in their individual capacity based on the doctrine of qualified immunity. (Id. at ¶¶ 26-30) Defendant Queen argues that plaintiff has not met his burden to establish a violation of § 1983 that is, he did not show that Queen was aware of a serious medical need and deliberately chose to ignore it. (D.I. 53 at ¶ 8) Defendant Queen further states that plaintiff has not met his burden in establishing a claim for failure to protect. (Id. at ¶ 9)

A. Failure to Protect
On plaintiffs failure to protect claim, state defendants argue for summary judgment in favor of Carter on the basis that, by relying solely on the facts pleaded in his complaint,[9] plaintiff provided insufficient evidence that Carter knowingly and unreasonably disregarded a risk to plaintiff. (D.I. 52 at ¶¶ 20-24) Similarly, defendant Queen argues that plaintiff has not demonstrated sufficient evidence to enable a reasonable jury to find for him on the matter of failure to protect. (D.I. 53 at ¶¶ 7, 9) Queen also argues that plaintiff cannot meet this burden with respect to a claim of deliberate indifference to serious medical needs. (Id. at ¶ 8)
The Supreme Court has enunciated two requirements to show a violation of the Eighth Amendment based on a failure to protect. First, "the deprivation alleged must be, objectively, `sufficiently serious[.]'" Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). That is, an inmate must show that *872 there is a substantial risk of harm. See id. (citing Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Second, the inmate must show the prison official had "a sufficiently culpable state of mind." Id. (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321). This means that defendant must be deliberately indifferent to inmate health or safety. Id. (quoting Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321). Deliberate indifference is a state of mind "more blameworthy than negligence[,]" and reflecting greater than an "ordinary lack of due care for the prisoner's interests or safety." Id. at 835, 114 S.Ct. 1970 (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Deliberate indifference is determined through a subjective testthat is, the "official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. 1970. Therefore, the simple presence of a risk is insufficient to establish deliberate indifference where the official did not actually perceive the risk. Id. at 838, 847, 114 S.Ct. 1970.
This court has explained that, in order to survive a motion for summary judgment on a failure to protect claim, plaintiff must produce sufficient evidence to support the inference that prison officials "knowingly and unreasonably disregarded an objectively intolerable risk of harm." Davis v. Williams, 572 F.Supp.2d 498, 507 (D.Del.2008) (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001)). Knowledge of a risk can be shown either through actual notice, or where there is a "longstanding, pervasive, well-documented, or expressly noted" risk and the circumstances are such that defendant had information regarding the risk that would allow the court to infer that defendant knew about the risk. See id. (citing Nami v. Fauver, 82 F.3d 63, 67-6 (3d Cir.1996); Farmer, 511 U.S. at 842, 114 S.Ct. 1970).
As with the claim for failure to protect, discussed supra, to make a claim for deliberate indifference to serious medical needs, plaintiff must show that defendant was aware of a serious risk and disregarded it. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (explaining that "deliberate indifference to serious medical needs" constitutes a violation of the Eighth Amendment). Inadvertently failing to provide adequate care (i.e., negligent diagnosis or treatment) does not rise to the level of a constitutional violation. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285.
With respect to defendant Carter, the court denies entry of a summary judgment in his favor on the issue of failure to protect. Plaintiff alleges that Carter had first-hand knowledge of plaintiffs fears, and admitted to plaintiff first-hand knowledge of Drozdowski's history. (D.I. 2 at ¶¶ 26-33) Carter, on the other hand, denies awareness of plaintiffs fears or Drozdowski's history. (D.I. 52 at ¶¶ 11; Id. at ex. 4) Because this discrepancy reflects a genuine issue as to the material fact of whether Carter "knowingly and unreasonably disregarded an objectively intolerable risk of harm," the court cannot grant summary judgment on this issue. Davis, 572 F.Supp.2d at 507.
In contrast, the record reflects that there is insufficient evidence for a jury to reasonably find in favor of plaintiff regarding defendant Queen's liability. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Although plaintiff asserts that he met with Queen three days before the assault, it is undisputed that she did not have the power to move him to protective custody. *873 (D.I. 2 at ¶ 38, D.I. 53 at ¶ 10) Further, Queen took steps to investigate the situation, meeting with Drozdowski on October 15 to perform a mental health evaluation. (D.I. 53 at ¶ 10; D.I. 53, ex. C) Such actions do not suggest a "sufficiently culpable state of mind" on Queen's part, such that liability for failure to protect attaches, nor do they demonstrate a deliberate indifference to a serious medical need. Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (citations omitted); Estelle, 429 U.S. at 105, 97 S.Ct. 285. Therefore, summary judgment in favor of Queen is appropriate.

B. Respondeat Superior Liability of Defendants Dutton and Lancaster
State defendants argue that plaintiff cannot establish a claim against defendants Dutton and Lancaster because they had no personal involvement in the incidents complained of and cannot be held liable on the basis of respondeat superior, consistent with the precepts enunciated in Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). The Third Circuit has explained the principle that a "defendant in a civil rights action must have personal involvement in the alleged wrongs" and that liability cannot be based solely on respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976)). The Court went on to explain that personal involvement can be shown through allegations of personal direction or "actual knowledge and acquiescence." Id. In Rode, the Third Circuit found that an assertion that a defendant merely had supervisory responsibility over co-defendants was irrelevant absent a showing that the defendant had personal knowledge of the incidents complained of. See id. at 1208. Further, allegations that a supervisory defendant must have personal knowledge of a subordinate's activity because of a grievance filed with his office are insufficient to show that the supervisory defendant had actual knowledge. See id.
The court agrees that plaintiff cannot maintain a claim against Dutton and Lancaster on the basis of respondeat superior. However, plaintiff also has alleged personal responsibility on the basis that he sent Lancaster a letter requesting protective custody, and Dutton a grievance also requesting protective custody. (D.I. 2 at ¶¶ 46, 48) Indeed, in plaintiffs deposition, he states that he brought the lawsuit against Lancaster because he was Carter's supervisor and based on the letter he sent to Lancaster. (D.I. 52, ex. 2 at 3) While liability cannot be premised on a grievance about a subordinate's activity, it appears that plaintiff did not file the letter or grievance as a result of Carter's behavior, but as a plea to Dutton and Lancaster to be moved to a different cell.
Regardless of plaintiff's ability to bring a claim against Dutton and Lancaster about personal involvement, the court finds that the relationship between the letter, the grievance and the assault is too tenuous to justify a trial on the merits. The evidence of record does not demonstrate that Lancaster ever received the letter. (D.I. 52 at ¶¶ 7, 9; Id., ex. 2) Although the record does show that Dutton received the grievance form, it was after the assault on plaintiff had already taken place. (Id. at ¶¶ 8-9) Additionally, even if Dutton had received the grievance in time to move plaintiff before his assault, defendants explain that requests for cell reassignment are not processed through the grievance procedure. (Id. at ¶ 8) Because it cannot be proven that Lancaster ever received the letter, and because Dutton did not receive the grievance before the assault and could not have taken the *874 steps plaintiff requested even if he had, the court finds that Dutton and Lancaster cannot be held personally responsible for the assault on plaintiff. Therefore, the court grants summary judgment in favor of defendants Dutton and Lancaster.

C. Sovereign Immunity
State defendants argue that even in the event that the court finds liability under respondeat superior or liability of a failure to protect, that they cannot be held liable in their official capacities based on the doctrine of sovereign immunity and the Eleventh Amendment. (D.I. 52 at ¶¶ 26-27)
Because a state is not a person under § 1983, § 1983 does not permit a plaintiff to recover damages against a state. See Haywood v. Drown, ___ U.S. ___, 129 S.Ct. 2108, 2113 n. 4, 173 L.Ed.2d 920 (2009) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). It has long been held that courts should treat suits against state officials in their official capacity as suits against the state. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citing Ky. v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Therefore under § 1983, a plaintiff cannot recover against a state official acting in his official capacity. For these reasons, the court grants summary judgment in favor of defendants in their official capacity.

D. Qualified Immunity
Suits against an official in his personal capacity "seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25, 112 S.Ct. 358. While sovereign immunity may protect a state official against suit in his official capacity, individual-capacity suits may proceed under § 1983. See id. at 23, 112 S.Ct. 358. However, State defendants argue that, based on the doctrine of qualified immunity, they cannot be liable in their personal capacity. (D.I. 52 at ¶¶ 28-30) Public officials exercising discretionary power retain qualified (rather than absolute) immunity to protect against abuses. See Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007). This doctrine exists so as to prevent the threat of litigation and personal liability from deterring citizens from accepting public office. See id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
The first step in determining whether an officer receives qualified immunity is to determine whether or not the officer violated a constitutional right. Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If so, the court must determine whether, despite the existence of a violation, immunity should shield the officer from liability. See id. at 207. In Curley, the court looked to whether the right that was violated was clearly established such that a reasonable officer would know that his conduct was unlawful at the time of the violation. Id. (citing Saucier, 533 U.S. at 202, 121 S.Ct. 2151).
State defendants argue that the Supreme Court has loosened this standard, entitling an official to qualified immunity where defendant reasonably believed that his conduct was lawful. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 823, 172 L.Ed.2d 565 (2009). Interpretation of Pearson's holding is a matter of first impression in this court. The few districts that have considered Pearson, however, have interpreted it not as a loosening of the Saucier standard, but as a grant of discretion to lower courts as to the order in which to apply the Saucier prongs. See, e.g., Coleman v. Wiencek, Civ. No. 08-C-5275, 2010 WL 1506708, *6 (N.D.Ill. Apr. *875 13, 2010); Everitt v. DeMarco, 704 F.Supp.2d 122, 136-37 (D.Conn.2010). Indeed, although the Pearson court held that qualified immunity shields an officer when the "officer reasonably believes that his or her conduct complies with the law," it also stated that an officer is only entitled to immunity where clearly established law does not show the officer's actions violated the Constitution. See Pearson, 129 S.Ct. at 822-23.
The court finds that qualified immunity does not attach in the case at bar. Regardless of the interpretation of Pearson, it is clear that correctional officers have a duty to protect inmates from threats within a prison. Where plaintiff has made a case of failure to protect, qualified immunity does not shield an officer from liability for that failure.

V. CONCLUSION
For the aforementioned reasons, defendants' motions for summary judgment are granted with respect to defendants Queen, Lancaster, and Dutton, and denied with respect to defendant Carter in his individual capacity. An appropriate order shall issue.

ORDER
At Wilmington this 10th day of September, 2010, consistent with the memorandum opinion issued this same date;
IT IS ORDERED that:
1. The motion for summary judgment filed by defendant Queen is granted. (D.I. 53)
2. The motion for summary judgment filed by defendants Carter, Lancaster, and Dutton is granted with respect to Lancaster and Dutton in their individual and official capacities, granted with respect to Carter in his official capacity, and denied with respect to Carter in his individual capacity. (D.I. 51)
3. The Clerk of Court, at the end of the case, shall enter judgment in favor of defendants Queen, Dutton, and Lancaster and against plaintiff. The Clerk of Court, at the end of the case, shall enter judgment in favor of defendant Carter in his official capacity only.
NOTES
[1]  This "sick call" slip reads, "I am having problems with my cellmate. . . . he . . . made a sexual comment to me. I would like for someone to see him or move me. I need to be on [protective custody]. I feel uncomfortable w[ith] him!" The sick call slip is not addressed to any particular mental health professional. (D.I. 2, ex. D)
[2]  Plaintiff states that when he told Carter he needed to talk about something, Carter responded, "is it about your `crazy celly' becaus[e] if it is, I know about him[.] [H]e's a `crazy, homo freak.' I know and so does everyone els[e], that's why his last cellmate left[.] [H]e could not deal with Drozdowski so he `signed on' [protective custody]." (D.I. 2 at ¶¶ 26-28)
[3]  Defendant Carter does not recall any conversation with plaintiff during which he requested placement in protective custody, or made any other complaint. (D.I. 46 at ¶ 13)
[4]  Plaintiff contends that this meeting was in response to his October 13 sick call slip (D.I. 2, ex. D), whereas defendant Queen denies this allegation because she does not recall receiving an October 13 sick call slip from plaintiff. (D.I. 2 at ¶ 38; D.I. 19 at 2-3)
[5]  Queen concedes this statement for the purposes of this motion only. (D.I. 53 at n. 12) In her answers to plaintiff's interrogatories, she states that she does not recall plaintiff's request for protective custody. (D.I. 49 at ¶ 13) Queen states that she met with Drozdowski later that day for a mental health evaluation, which she states gave her no cause to believe that he was a threat to plaintiff. (D.I. 53 at ¶ 10; D.I. 53, ex. C) Plaintiff has not contested this point.
[6]  Plaintiff's complaint asserts that Carter's exact words were, "Don't ask me again! Or I'll f____ you up." (D.I. 2 at ¶ 42)
[7]  Plaintiff acknowledges that he was at that point not housed with Drozdowski, but states that it was because the assault had by then occurred. (D.I. 2 at ¶ 51) Plaintiff concedes that Dutton was probably correct in denying the grievance, but asserts that Dutton should have at the time taken steps to protect plaintiff from the risk of assault. (Id. at ¶¶ 51, 53-54)
[8]  The reporting form for the disciplinary hearing states, "Inmate Drozdowski admitted to hitting Nicholas at his hearing." (D.I. 2, ex. E)
[9]  State defendants point out that plaintiff took no depositions, nor did he respond to State defendants' interrogatories or requests for production. (D.I. 52 at ¶ 5)


                       IN THE MISSOURI COURT OF APPEALS
                         HANDDOWN LIST OF JUNE 28, 2016
                               WESTERN DISTRICT

THE FOLLOWING CASES WERE AFFIRMED PURSUANT TO RULE 84.16(b)
AND ISSUED PER CURIAM
------------------------------------------------------------------
WD78189     John M. Carden vs. Director of Revenue
WD78236     Myrtle Canady vs. Shareece Jackson
WD78406     Sylvester Pickett vs. State of Missouri
WD78454     Darris A. Peal vs. State of Missouri
WD78725     Delmario Reese vs. State of Missouri
WD78795     Robert C. Singletary vs. State of Missouri
WD78853     Maurica Meschelle Spellmeyer vs. Director of Revenue
WD79023     In the Interest of: A.H.; Juvenile Officer; Department of Social Services,
            Children’s Division vs. S.U. (Father)

THE FOLLOWING CASES WERE AFFIRMED PURSUANT TO RULE 30.25(b)
AND ISSUED PER CURIAM
------------------------------------------------------------------
WD78355     State of Missouri vs. Quartez G. Edwards
WD78371     State of Missouri vs. David Allen Mrozak
WD78384     State of Missouri vs. Christopher Scott Mysak
WD78387     State of Missouri vs. Rosendo C. Hernandez, Jr.
WD78401     State of Missouri vs. Ryan Orp Boulware


                                                               TO BE PUBLISHED

                        rani Courf of rttfttilg
                  2016-SC-000098-KB and 2016-SC-000266-Al

                                                                         c//7/14 Kv;14.060,1 DC
KENTUCKY BAR ASSOCIATION                                                   MOVANT

V.                             IN SUPREME COURT

RUSSELL W. BURGIN                                                   RESPONDENT
KBA MEMBER NO. 88688

               OPINION AND ORDER IMPOSING DISBARMENT

      Respondent, Russell W. Burgin, was admitted to the practice of law in

the Commonwealth of Kentucky on May 1, 2001. His Kentucky Bar

Association (KBA) member number is 88688. In 2014, the KBA Inquiry

Commission issued three separate disciplinary charges against Respondent in

KBA File Numbers 22727, 23233, and 23250.

      The KBA Board of Governors (the "Board") issued its Findings of Fact,

Conclusions of Law, and Recommendations and ultimately found Respondent

guilty of committing seven of the eight alleged disciplinary infractions. The

Board recommended a five-year suspension for KBA File Number 22727. The

Board recommended permanent disbarment in KBA File Numbers 23233 and

23250. For the reasons stated herein, we agree with the Board's

recommendation.
                                  I. BACKGROUND

A. KBA FILE 22727

       Respondent was suspended from practicing law in Kentucky on

November 21, 2013, for his failure to comply with continuing-legal-education

requirements. While suspended, Respondent filed two separate marriage

dissolution petitions in Laurel Circuit Court in 2014. Following the filing of the

complaint and charges in this file, Respondent failed to respond in any

manner.

       Respondent was charged with violating SCR 3.130-1.3 (requiring

reasonable diligence); SCR 3.130-1.4(a)(3) and (4) (requirement to promptly

provide the client with necessary information and promptly respond to the

client's reasonable requests for information); SCR 3.130-8.1(b) (failing to

respond to lawful demands for information from a disciplinary authority; SCR

3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation); and SCR 3.130-5.5(a) ("A lawyer shall not practice law in a

jurisdiction in violation of the regulation of the legal profession in that

jurisdiction, or assist another in doing so.").

      After reviewing Respondent's extensive disciplinary background, which

will be subsequently discussed, the Board voted as follows: 15 votes in favor of

a five year consecutive suspension; and 3 votes for permanent disbarment.

B.    KBA FILE 23233 and KBA FILE 23250

      While on suspension in 2014, Respondent appeared in Fayette District

Court on behalf of a client, James E. Reed, pertaining to Mr. Reed's

                                          2
misdemeanor charge. When his membership status was questioned in open

court by the presiding district judge, Respondent represented to the court that

he had been reinstated to practice, which was false. Following the filing of the

complaint and charges in this file, Respondent failed to respond in any

manner.

       Respondent was charged with violating SCR 3.130-5.5(a) ("A lawyer shall

not practice law in a jurisdiction in violation of the regulation of the legal

profession in that jurisdiction, or assist another in doing so."); and SCR

3.130.8.4(c) (prohibiting an attorney "from engaging in conduct involving

dishonesty, fraud, deceit or misrepresentation.").

       While on suspension, Respondent also filed a dissolution of marriage

petition in Laurel Circuit Court on January 28, 2014.       Chambers v. Chambers,

Laurel Circuit Court, Case Number 14-CI-00076. Respondent contacted the

opposing party, Mrs. Chambers, on at least 15 occasions and intimidated her

so that she would agree to a final decree before his client, Mr. Chambers, had

discharged mutually agreed upon settlement terms. Mrs. Chambers filed a

verified Complaint against Respondent on October 17, 2014. Following the

filing of the complaint and charges in this file, Respondent failed to respond in

any manner.

      Respondent was charged with violating SCR 3.130-5.5(a) (A lawyer shall

not practice law in a jurisdiction in violation of the regulation of the legal

profession in that jurisdiction, or assist another in doing. so.")

                                          3
       The Board considered KBA File 23233 and KBA File 23250 together as

one case. In deciding these matters, the Board reviewed Respondent's

extensive disciplinary background. This included the Board's still pending

recommendation in KBA v. Burgin, 2016-SC-98 (KBA File 22727)

(recommending five year suspension), one case that resulted in a private

admonition in 2011, as well as the following cases: Burgin v. KBA, 362 S.W.3d

331 (Ky. 2012); KBA v. Burgin, 412 S.W.3d 872 (Ky. 2013); KBA v. Burgin, 448

S.W.3d 256 (Ky. 2014); KBA v. Burgin, 461 S.W.3d 401 (Ky. 2015); and KBA v.

Burgin, 469 S.W.3d 832 (Ky. 2015). All of these cases resulted in orders

imposing temporary suspension. After reviewing the record in the present case

and Respondent's disciplinary history, the Board voted as follows: 5 votes for a

consecutive suspension; and 14 votes for permanent disbarment.

      In light of Respondent's failure to answer any of the pending charges as

well as his extensive disciplinary history resulting from a sundry of violations,

each of which warranted temporary suspension, we agree with the majority of

the Board that permanent disbarment is appropriate here. Our decision is

further fortified by the fact that one of Respondent's most current offenses

involved him lying to a judge in open court when Respondent's membership

status was questioned by the judge. This behavior demonstrates a complete

disregard for the Court of Justice and the rules of ethics that is unlikely to be

remedied by yet another order of suspension.

      Moreover, we have imposed disbarment under similar circumstances. In

KBA v. Pendleton, for example, we imposed permanent disbarment on the

                                         4
respondent having found him guilty of the following offenses: 1) the

unauthorized practice of law during disciplinary suspension; 2) multiple acts of

misconduct including making false statements to a tribunal; and 3) failing to

cooperate in disciplinary proceedings. 452 S.W.3d 607 (Ky. 2015). See also,

KBA v. Schott, 353 S.W.3d 621 (Ky. 2011) (imposing permanent suspension

due in part to attorney's disciplinary history and his failure to cooperate with

the disciplinary process).

ACCORDINGLY, IT IS ORDERED:

1. Respondent, Russell W. Burgin, KBA Member Number 88688, is found

   guilty of violating the Kentucky Rules of Professional Conduct, including

   SCR 3.130-1.4(a)(3) and (4); three counts of SCR 3.130-5.5(a); two counts of

   SCR 3.130-8.4(c); and SCR 3.130-8.1(b);

2. Respondent is permanently disbarred from the practice of law in the

   Commonwealth of Kentucky, effective from the entry of this Opinion and

   Order;

3. Pursuant to SCR 3.390, Respondent shall, if he has not already done so,

   within ten (10) days from the entry of this Opinion and Order, notify all

   clients, in writing, of his inability to represent them; notify, in writing, all

   courts in which he has matters pending of his suspension from the practice

   of law; and furnish copies of all letters of notice to the Office of Bar Counsel.

   Furthermore, to the extent possible, Respondent shall immediately cancel

   and cease any advertising activities in which he is engaged; and

4. Pursuant to SCR 3.450, Respondent is directed to pay all costs associated
with these disciplinary proceedings, in the amount of $648.14 for which

execution may issue from this Court upon finality of this Order.

   All sitting. All concur.

   ENTERED: August 25, 2016.         ‘

                                  CH 'F JUSTICE

                                    6