Durham v. Somerset County et al
Filing
25
MEMORANDUM. Signed by Judge William M Nickerson on 4/21/11. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES “TROY” DURHAM
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v.
ROBERT N. JONES et al.
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Civil No. WMN-10-2534
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MEMORANDUM
Before the Court is Defendant Robert Jones’ Motion to
Dismiss First Amended Complaint.
fully briefed.
ECF No. 15.
The motion is
Upon a review of the briefing and the applicable
case law, the Court determines that no hearing is necessary,
Local Rule 105.6, and that the motion should be denied.
Plaintiff James “Troy” Durham was employed by the Somerset
County Sheriff’s Office (SCSO) from October 1998 through July
2005, and again from July 2006 until the termination of his
position as Deputy Sheriff in September 2009.
N. Jones is the Sheriff of Somerset County.
Defendant Robert
Plaintiff brings
this action challenging Defendant’s decision to terminate his
employment.
The facts leading up to that termination as alleged
in the First Amended Complaint are as follows.
On August 21, 2008, Plaintiff was involved in the pursuit
of a motorcycle operator traveling at a high rate of speed.
Plaintiff apprehended the motorcyclist and met some resistance
as he attempted to make the arrest.
To gain compliance,
Plaintiff used force, including: knee strikes to the suspect’s
ribs, open hand strikes, and the application of pepper spray.
Plaintiff prepared a report of the arrest, which included an
accurate description of his use of force.
Shortly thereafter, Plaintiff was advised by his superiors
that the motorcyclist was claiming that he was injured during
the arrest.
On August 29, 2008, Sergeant Miles of the SCSO
contacted Plaintiff and ordered him to delete information in his
report related to the use of force.
Miles also indicated that
he wanted the motorcyclist charged with assault and resisting
arrest.
Plaintiff initially refused Miles’s request, believing
that altering his report as requested would render it false and
misleading.
In response to Plaintiff’s refusal to alter the report of
the incident, Miles told Plaintiff that he was suspended and
threatened him with criminal charges if he did not change the
report as ordered.
his Miranda rights.
Miles went so far as to advise Plaintiff of
When faced with the threat of arrest,
Plaintiff agreed to change his report.
On September 4, 2008, Plaintiff submitted a grievance to
the Human Resources office of the Commissioners of Somerset
County regarding the August 29, 2008, interaction with Miles.
The grievance named Miles and Defendant Jones as respondents.
2
Immediately after submitting his grievance, Plaintiff was
suspended by a vote of the Commissioners of Somerset County.
Plaintiff was also informed that his grievance was going to be
referred to Defendant Jones for investigation.
In addition,
Plaintiff was told that his own conduct during the arrest
incident was going to be investigated by Miles and another SCSO
officer.
Concerned about this course of events, Plaintiff sent
letters to the Maryland State Police, the Maryland Attorney
General’s Office, the Maryland Police Training Commission,
Governor Martin O’Malley, and the Somerset County State’s
Attorney Office recounting these events and alleging
“misconduct, malfeasance, corruption, abuse of power and breach
of the public trust” on the part of several SCSO officers,
including Defendant Jones.
With the letters, Plaintiff attached
copies of his grievance, the form indicating he was given his
Miranda rights, the police report of the August 21, 2008,
incident as originally submitted and as rewritten on the orders
of his superiors, and the memorandum suspending him after he
filed his grievance.
When advised that none of these agencies
would assist him, Plaintiff sent similar letters and materials
to the press and an unnamed United States Senator.
As a result of Sergeant Miles’s investigation, Plaintiff
was charged with twelve violations of the SCSO’s Rules, Policy,
3
and Procedures.
Ten of those charges related to his use of
force in the arrest.
Two of the charges arose from his letter
writing campaign: a charge of dissemination of departmental
information without authorization and a charge of unbecoming
conduct.
Pursuant to the Law Enforcement Officer’s Bill of
Rights (LEOBR), a hearing on these charges was conducted on July
16-17, 2009.
Plaintiff was acquitted on the ten charges related
to the arrest, but found guilty of the two charges related to
the letter writing campaign.
The hearing board recommended five
days of suspension without pay for each of the two findings of
guilt.
The hearing board’s recommendation was forwarded to
Defendant Jones for review.
Defendant then informed Plaintiff
that he was considering increasing the penalty to be imposed.1
On September 16, 2009, Plaintiff, represented by counsel, met
with Defendant.
After the meeting, Defendant increased the
penalty to termination of employment.
1
Plaintiff appealed
Under LEOBR, Defendant Jones was permitted to increase the
recommended penalty, but only after meeting with the officer and
giving him the opportunity to be heard on the record. Md. Code
Ann., Pub. Safety § 3-108(d)(5)(ii). LEOBR also requires the
officer to be provided with written notice, ten days before this
meeting, of any material that would be considered in increasing
the penalty that was not presented to the hearing board. Id. 3108(d)(5)(iii).
4
Defendant’s decision to the Circuit Court of Somerset County.2
Plaintiff argued that Defendant Jones’ decision to increase the
penalty was arbitrary and capricious and that Defendant violated
§ 3-108(d)(5)(iv) of LEOBR by failing to state the evidence upon
which he relied to increase the recommended penalty.
He also
contended that his termination was in retaliation of his filing
a grievance.
The circuit court affirmed the decision of
Defendant and Plaintiff appealed that decision to the Maryland
Court of Special Appeals where it remains pending.3
Plaintiff filed this action initially naming Somerset
County as a defendant.
In addition, Defendant Jones was named
as a defendant in his personal and official capacities.
The
initial complaint contained four causes of action against
Defendant Jones: retaliatory discharge in violation of his First
Amendment right to free speech (Count I); retaliation in
violation of his due process rights under Article 24 of the
Maryland Declaration of Rights (Count II); retaliation in
violation of his First Amendment right to petition for redress
of grievances (Count III); and retaliation in violation of that
same right under Article 24 of the Maryland Declaration of
2
LEOBR provides for the appeal of final orders made under its
provisions to the appropriate circuit court. Id. § 3-109(a).
3
An officer aggrieved by a decision of the circuit court can
appeal that decision to the Court of Special Appeals. Id. § 3109(b).
5
Rights (Count IV).
The initial complaint also contained a
“First Amendment Retaliation” claim against Somerset County
(Count VI) and an abusive discharge claim against both Jones and
Somerset County (Count V).
Somerset County filed a motion to dismiss the Complaint, or
in the alternative for summary judgment.
a motion to dismiss.
Defendant Jones filed
In response, Plaintiff filed an amended
complaint, eliminating Somerset County as a defendant and
indicating that Defendant Jones was being sued solely in his
personal capacity.
Plaintiff also completely eliminated the
claims for violation of his state due process rights as well as
his right to petition the government for redress under the First
Amendment of the United States Constitution and under Article 24
of the Maryland Declaration of Rights.
Thus, the First Amended
Complaint is limited to three causes of action:
a free speech
claim under the United States Constitution,4 a free speech claim
under the Maryland Declaration of Rights,5 and an abusive
discharge claim.
Plaintiff also added significant factual
allegations to his First Amended Complaint.
4
As it must be, Plaintiff’s claim for violation of his right
under the United States Constitution is brought under 42 U.S.C.
§ 1983.
5
The First Amended Complaint also amended the state
constitutional free speech claim to reference Article 40,
instead of Article 24.
6
Largely ignoring the fact that Plaintiff amended his
initial complaint, Defendant Jones filed a motion to dismiss,
ECF No. 15, nearly identical to his previous motion.
ECF No. 8.
As a result, a significant portion of the pending motion to
dismiss attacks claims that Plaintiff is no longer asserting.
Furthermore, Defendant’s arguments fail to consider or to
respond to any of the new factual allegations in the First
Amended Complaint.
In the only significant alteration to his motion to
dismiss, Defendant inserts a new ground for dismissal but does
so in a manner that is rather cryptic and cursory.
In a single
page of argument, Defendant posits that “Plaintiff is estopped
from complaining about the factual basis of the his [sic]
disciplinary case.”
ECF No. 15 at 6.
Defendant begins the
argument, however, with a faulty factual premise, declaring that
“[a]t its core, Plaintiff’s complaint in this court is that he
was denied due process when he was terminated by Sheriff Jones.”
Id.
This declaration ignores the fact that Plaintiff eliminated
any reference to due process in his First Amended Complaint.
Defendant then proceeded to provide a one sentence explanation
for each of the doctrines of res judicata and collateral
estoppel, but fails to explain how they are applicable to
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Plaintiffs’ current claims, or even which of the doctrines
Defendant believes might be applicable.6
Justifiably, Plaintiff’s counsel complains of the lack of
guidance provided by Defendant as to the nature of his estoppel
argument.
Plaintiff argues that Defendant’s argument was so
“skeletal” that it should be deemed waived.
Nonetheless,
Plaintiff’s counsel did an admirable job divining the possible
thrusts of Defendant’s argument and meeting them.
In his reply
brief, Defendant clarifies, somewhat, the substance of his
estoppel argument.
As tempted as the Court might be to simply
deem Defendant’s arguments waived, it will address them on their
merits.
When a defense of res judicata is asserted and the former
adjudication is a state court judgment, a federal court must
apply the res judicata rules of the state that rendered the
underlying judgment.
See In re Genesys Data Techs, Inc., 204
F.3d 124, 127 (4th Cir. 2000).
“Under Maryland law, the
6
In the introductory section of his motion, Defendant refers to
a complaint Plaintiff filed against SCSO under Maryland’s
Whistleblower Law. ECF No. 15 at 3. This complaint was
dismissed by the Maryland Office of the Statewide Equal
Employment Opportunity Coordinator. Plaintiff appealed that
dismissal to the Maryland Office of Administrative Hearings, but
then failed to appear for the scheduled hearing and a default
was entered against him. It is not clear from the motion to
dismiss whether Defendant’s estoppel argument was related to
this proceeding or to the administrative hearing office and
circuit court proceedings described above. Defendant clarified
in his reply brief that his estoppel argument was related to the
latter. ECF No. 24 at 1.
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requirements of res judicata are: (1) that the parties in the
present litigation are the same or in privity with the parties
to the earlier dispute; (2) that the claim presented in the
current action is identical to the one determined in the prior
adjudication; and (3) that there was a final judgment on the
merits.” Colandrea v. Wilde Lake Cmty. Ass'n Inc., 761 A.2d 899,
910 (Md. 2000).
As for the first requirement of the res judicata test, the
Court finds that the parties in this suit are not the same
parties or in privity with the parties in the LEOBR action.
To
the extent that Defendant Jones was a party in the state action,
it was clearly only in his official capacity.
That is evident
in the relief sought in those proceedings, i.e., Plaintiff’s
reinstatement and back pay.
See Def.’s Ex. 6 (Pl.’s Mem. in the
Circuit Ct. at 16); see also, Def.’s Ex. 7 (Opinion and Order of
Circuit Ct. at 1, noting the appearance of counsel
“represent[ing] the Somerset County Sheriff’s Office”).
Under
the First Amended Complaint in this action, Defendant is being
sued solely in his personal capacity.
The Fourth Circuit has
specifically held that “a government official in his official
capacity is not in privity with himself in his individual
capacity for purposes of res judicata.”
Andrews v. Daw, 201
F.3d 521 (4th Cir. 2000); see generally, 1B J. Moore, Moore's
Federal Practice, ¶ 0.411 [4], at 436 (2d ed. 1984) (noting that
9
under general principles of res judicata, a “judgment rendered
in one suit has no conclusive force in the other, if the person
is a party to one suit solely as an individual, and is a party
to the other solely in his [representative] capacity.”).
Defendant’s only response on the identity of parties issue
is to declare that “Maryland [] does not recognize the
distinction between ‘individual capacity’ and ‘official
capacity.’”
ECF No. 24 at 7 (citing Ritchie v. Donnelly, 597
A.2d 432 (Md. 1991)).
The Ritchie decision has nothing
whatsoever to do with res judicata or estoppel and, as Defendant
provides no pincite to the decision, it is difficult to discern
how Defendant derived this proposition from that decision.
The
Maryland Court of Appeals did note in Ritchie that, unlike
claims asserted under § 1983, there is no official/individual
capacity dichotomy for state constitutional claims.
373.
324 Md. at
The Court of Appeals quickly noted, however, “[t]hat this
does not mean [] that Maryland law does not recognize an
official/individual capacity dichotomy in other contexts.”
Id.
at 373 n.13.
The Court also notes that the Ritchie decision undercuts a
related argument made by Defendant elsewhere in his motion.
a portion of his motion labeled, “Defendant Jones is Not a
‘Person’ Within The Meaning Of 42 U.S.C. § 1983,” Defendant
seems to argue that Defendant cannot be sued in his personal
10
In
capacity because his decision to terminate Plaintiff was within
the scope of his official duties: “Sheriff Jones should not have
terminated him without an extraordinary reason to do so.
Such
allegations go to Sheriff Jones’ constitutional and statutory
duties as Sheriff.
substance.”
To allege otherwise is to elevate form over
ECF No. 15 at 8.
In rejecting that precise
argument, the Court of Appeals observed,
[n]umerous tortious acts by government officers or
employees are committed in the scope of employment but
are not caused by a law, policy or custom of the
government entity. Therefore, under the Supreme
Court's decisions, such torts are not committed in the
official capacity of the officers or employees for
purposes of § 1983. They are committed in the
individual capacity of the officers or employees who
are personally liable in damages.
597 A.2d at 442.
Turning to the second requirement for the defense of res
judicata, Maryland courts have adopted the “transactional”
approach for determining whether a claim presented in the
current action is the same as the claim presented in a prior
adjudication.
Kent County Bd. of Educ. v. Bilbrough, 525 A.2d
232, 237 (Md. 1987) (adopting approach set out in § 24 of
Restatement (Second) of Judgments).
What constitutes a
“transaction” is to be “[d]etermined pragmatically, giving
weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit
11
conforms to the parties' expectations or business understanding
or usage.”
Id., 525 A.2d at 238.
Furthermore, under this
transactional test, “[e]quating claim with transaction” is
“justified only when the parties have ample procedural means for
fully developing the entire transaction in the one action going
to the merits to which the plaintiff is ordinarily confined.”
Id.
Applying this test, the Maryland Court of Special Appeals
has held that a § 1983 claim was not barred under the doctrine
of res judicata based upon previous judicial review of an
administrative hearing despite the fact that two cases raised
“precisely the same assertions.”
Esslinger v. Baltimore City,
622 A.2d 774, 620, 624 (Md. Ct. Spec. App. 1993).
In Esslinger,
the plaintiff had previously appealed to the state circuit court
an adverse decision of the Zoning Board related to his erection
of a satellite disk.
When he later brought a § 1983 suit
against the Zoning Board and other city employees alleging that
they violated his constitutional rights in refusing to allow him
to erect the disk, the defendants argued, inter alia, that the
action was barred by res judicata.
The Court of Special Appeals
held that his claims were not barred by res judicata because it
was highly unlikely that he could have brought damage claims
under § 1983 in the administrative appeal.
12
A litigant asserting, or defending against, a claim
for damages typically is permitted extensive discovery
to build or defend his case; discovery is usually not
available before a Maryland administrative agency and
certainly was not available in this case. Yet in
reviewing an administrative appeal the circuit court
is usually, and was here, confined to reviewing the
administrative decision for lack of substantial
evidence or an error in law. Thus, almost always, and
certainly here, the scope of judicial review of
administrative decisions is narrow.
Esslinger, 622 A.2d at 782 (citations omitted).
Here, as the procedural history recited above clearly
indicates, Plaintiff had no opportunity in the previous
proceedings to develop or bring the claims he now brings.
was never the opportunity for discovery.
There
Furthermore, Plaintiff
had no opportunity to bring a wrongful discharge claim as part
of the administrative proceedings because Defendant did not make
the decision to terminate him until after the administrative
LEOBR proceeding.
Therefore, the Court finds that Plaintiff’s
current claims are not barred by res judicata.
See also, Grimes
v. Miller, 448 F. Supp. 2d 664, 671 (D. Md. 2006) (following
Esslinger and holding § 1983 claims not barred by previous
administrative proceedings).
It is not clear from Defendant’s motion and reply whether
he is advancing an argument for collateral estoppel, also known
as issue preclusion.
He quotes a case that sets out the test
that must be satisfied for the doctrine to apply but never
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applies it to the facts in this action.
ECF No. 24 at 2
(quoting Colandrea, 761 A.2d at 909-10).
To the extent
Defendant is making such an argument, it fails for reasons
similar to the reasons his res judicata argument fails, most
notably, Plaintiff did not have the opportunity to litigate his
wrongful discharge or free speech claim in the administrative
proceedings.
The Court now turns to the Defendant’s specific challenges
to the merits of the claims that remain in the First Amended
Complaint.
In his free speech claims under the First Amendment and
under Article 40 of the Maryland Declaration of Rights,
Plaintiff alleges that Defendant Jones terminated his employment
in retaliation for Plaintiff’s speaking out publically about the
pressure put on him to make false police reports and file false
criminal charges.
To make out a free speech claim in this
context, a plaintiff must establish three elements:
First, the public employee must have spoken as a
citizen, not as an employee, on a matter of public
concern. Second, the employee's interest in the
expression at issue must have outweighed the
employer's “interest in providing effective and
efficient services to the public.” Third, there must
have been a sufficient causal nexus between the
protected speech and the retaliatory employment
action.
14
Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292, 316
(4th Cir. 2006) (citing McVey v. Stacy, 157 F.3d 271, 277-78
(4th Cir. 1998)).
In moving to dismiss the free speech claims, Defendant
makes two arguments.
First, Defendant argues that in sending
out his letters, Plaintiff was “speaking as an employee and not
as a citizen on a matter of public concern.”
Mot. at 12.
Second, Defendant argues that, “[e]ven if Plaintiff were
speaking as a citizen on a matter of public concern, . . .
Plaintiff’s interest in the speech does not outweigh the
interest of [SCSO] in ‘providing effective and efficient
services to the public.’”
Id. at 15 (quoting Ridpath, 447 F.3d
at 316).
As to the first argument, Plaintiff clearly was speaking as
a citizen and not as an employee.
As Plaintiff carefully
expounds in the First Amended Complaint, and Defendant does not
contest,7 it was not within the scope of his job duties or
responsibilities to send any of the letters he sent complaining
of Defendant’s actions.
First Am. Compl. ¶ 21.
These letters
were not addressed through Plaintiff’s chain of command but were
7
Because Defendant simply pasted the argument on this issue from
the motion to dismiss the original complaint into the motion to
dismiss the First Amended Complaint, he offers no meaningful
response to Plaintiff’s new allegations. Furthermore, Defendant
makes no argument, whatsoever, in his Reply on this issue, the
Reply being limited to Defendant’s “estoppel” argument.
15
prepared to voice his own personal opinions regarding the breach
of public trust by [SCSD].”
Id.
Defendant’s entire “speech as an employee” argument is
premised on the fact that Plaintiff attached to his letters
documents that were prepared in the scope of Plaintiff’s
official duties, such as his original report and altered report
of the incident.
It is the letters themselves, however, and not
these attached documents that represent the substance of the
speech that Plaintiff asserts is protected.
The attachments
simply provide demonstrative evidence supporting the claims of
misconduct, malfeasance, corruption, abuse of power and breach
of the public trust made in the letters.
Certainly at the
motion to dismiss stage, the Court must accept as true
Plaintiff’s assertion that the letters were not written pursuant
to any official duties or responsibilities.
8
See Andrew v.
Clark, 561 F.3d 261, 267 (4th Cir. 2009) (holding that, because
issue of whether plaintiff wrote a critical memorandum as part
of official duties was a disputed issue of fact, the motion to
dismiss must be denied).
At the motion to dismiss stage, the Court must also reject
Defendant’s generalized and unsubstantiated claims that any
disruption to the operation and mission of SCSD caused by
8
Defendant actually argues elsewhere in his motion that sending
the letters “conflicted with the responsibilities of the
Plaintiff.” ECF No. 15 at 16.
16
Plaintiff’s speech outweighs Plaintiff’s interests in the
speech.
The gravamen of Defendant’s argument on this issue
appears to be that, because Defendant terminated Plaintiff’s
employment for sending the letters, his sending those letters
“obviously damaged the relationship between Sheriff Jones and
[Plaintiff].”
ECF No. 15 at 16.
That argument, of course,
would defeat any free speech retaliation claim by a public
employee.
Considering the highly significant public interests
implicated by Plaintiff’s allegations that he was pressured to
falsify police reports and file false criminal charges, the
Court cannot conclude, at this stage of the litigation, that
those interests are overshadowed by concerns about damaged
departmental relationships.
As to Plaintiff’s federal free speech claim, Defendant also
raises the defense of qualified immunity.
Qualified immunity
protects “government officials performing discretionary
functions . . . from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A
right is clearly established if “it would have been clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202
17
(2001).
In making this assessment, the Court looks to the
settled law at the time of the alleged constitutional act to
determine whether the right allegedly violated was clearly
established.
Robinson v. Balog, 160 F.3d 183, 187 (4th Cir.
1998).
Under the facts as alleged in the First Amended Complaint,
the Court has no difficulty concluding that a reasonable officer
in Defendant Jones’ position would have known that it was
unlawful to terminate a deputy for bringing serious police
misconduct and a breach of the public trust to the attention of
government agencies and the press.
Plaintiff’s right to free
speech in this context was clearly established.
See Andrew,
supra; Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998)
(holding that speech that “sought to bring to light actual or
potential wrongdoing or breach of public trust on the part of
government employees” was protected public speech); Brawner v.
City of Richardson, 855 F.2d 187, 191-92 (5th Cir.1988) (“The
disclosure of misbehavior by public officials is a matter of
public interest and therefore deserves constitutional
protection, especially when it concerns the operation of a
police department.” (footnote omitted)).
Furthermore, at this
stage in the litigation, the Court cannot find that Defendant
could reasonably conclude, based on well settled law, that any
disruption to the operation and mission of SCSD caused by
18
Plaintiff’s speech outweighs Plaintiff’s interests in that
speech.
See Ridpath, 447 F.3d at 318 (affirming denial of
motion to dismiss free speech claim on ground of qualified
immunity where detrimental effect of speech on the workplace and
provision of public services could not be assessed without
discovery).
Defendant’s challenge to Plaintiff’s abusive discharge
claim fails for reasons similar to the failure of his challenge
to Plaintiff’s free speech claims.
To state a cause of action
for abusive discharge under Maryland law, a plaintiff must
demonstrate that the “motivation for the discharge contravenes
some clear mandate of public policy.”
Watson v. Peoples Sec.
Life Lis. Co., 588 A.2d 760, 764 (Md. 1991).
In the First
Amended Complaint, Plaintiff identifies his First Amendment
right of speech as the clear mandate of public policy supporting
his abusive discharge claim.
In moving to dismiss this claim,
Defendant argues that, based on his premise that Plaintiff
cannot establish a deprivation of his First Amendment rights, he
cannot support his abusive discharge claim.
9
ECF No. 15 at 23.9
Because Defendant’s counsel apparently did not read the First
Amended Complaint, he also challenged Plaintiff’s reliance on
his right to petition the government for redress as support for
an abusive discharge claim. ECF No. 15 at 22. As noted above,
Plaintiff deleted reference to the right to petition from the
First Amended Complaint.
19
Because the Court rejects that premise, it rejects the
conclusion as well.
Finally, Defendant argues that he is entitled to immunity
under Section 5-522 of the Courts and Judicial Procedure Article
of the Maryland Code.
Section 5-522 provides that state
personnel are immune from suit and from liability for tortious
conduct committed within the scope of their public duties and
without malice or gross negligence.
Proc. § 5-522(b).
Md. Code Ann., Cts. & Jud.
Defendant proposed that “Plaintiff does not
allege that Defendant Sheriff Jones acted outside the scope of
his employment or with malice or gross negligence.”
at 23.
ECF No. 15
Of course, had Defendant’s counsel read the First
Amended Complaint, the following allegations would have been
discovered:
Defendant Jones disregarded the administrative hearing
board’s recommendation, and with no reason other than
to hurt and punish the Plaintiff for speaking publicly
about and placing the Sheriff and the SCSO in a
negative light, upped the punishment and terminated
the Plaintiff from his employment. The alleged basis
for doing so was nothing more than a contrived pretext
to deprive the Plaintiff of his valuable employment.
The termination of the Plaintiff, in violation of
Federal and State constitutional protections, was an
ultra vires act and outside of the scope of Defendant
Jones’ employment.
First Am. Compl. ¶ 26.
The Court finds these allegations
sufficient to defeat Defendant’s assertion of state personnel
immunity at this stage of the litigation.
20
For these reasons, Defendant’s motion will be denied in its
entirety.
A separate order will issue.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: April 21, 2011
21
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