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Durham v. Rapp

United States District Court, D. Maryland

December 9, 2014

CHARLES W. RAPP et al., Defendants

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[Copyrighted Material Omitted]

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James Troy Durham, Plaintiff, Pro se, Pocomoke City, MD.

For Charles W Rapp, Albert L. Liebno, Jr., Colonel Marcus L Brown, John A. Bartlett, Jr., Sheriff Michael A. Lewis, Chief William McMahon, Lt. Robin E Roberts, Dr. Charles Wellford, Dr. Anthony Batts, Joezette Pope, Chief Douglas K. Holland, Douglas F. Gansler, Stuart M. Nathan, Gary D. Maynard, Chief Larry Brownlee, Chief Charles H. Hinnant, as Commissioners of the Maryland Police Training Commission, Defendants: Michael O Connor Doyle, LEAD ATTORNEY, State of Maryland Office of the Attorney General, Pikesville, MD; Tamal Ajani Banton, Office of the Attorney General, Department of Public Safety and Correctional Services, Pikesville, MD.

For Stephen E. Vogt, Defendant: Alex S Gordon, LEAD ATTORNEY, Office of the United States Attorney, Greenbelt, MD.

For United States of America, Interested Party: Alex S Gordon, LEAD ATTORNEY, Office of the United States Attorney, Greenbelt, MD.

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James K. Bredar, United States District Judge.

This case was filed May 7, 2013, by Plaintiff James " Troy" Durham against the members of the Maryland Police Training Commission (" MPTC" ), MPTC's executive director, Charles W. Rapp, and MPTC's deputy director, Albert L. Liebno, Jr., in their personal capacities.[1] (Compl., ECF No. 1.) An amended complaint was filed March 25, 2014 (Am. Compl., ECF No. 46), and all Defendants have moved to dismiss it (ECF Nos. 47 & 50).[2] The motions have been briefed (ECF Nos. 53, 54, & 55), and no hearing is necessary, Local Rule 105.6 (D. Md. 2014). Defendant Stephen E.

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Vogt's motion will be denied. The motion of the other defendants will be granted in part and denied in part.

I. Standard of Dismissal for Failure to State a Claim

A complaint must contain " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." ' Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility exists " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, " Factual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555. " A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

II. Allegations of the Complaint

Durham alleges the MPTC commissioners violated his right to due process under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. (Am. Compl. Count I.) Durham also alleges that Defendants Rapp and Liebno retaliated against him for exercising his First Amendment right to petition the government for redress of his grievances as to matters of public concern and violated his Maryland state law right for the same under its Declaration of Rights, Article 40. ( Id. Count II.) Durham additionally alleges the MPTC commissioners retaliated against him for exercising his petition rights under the First Amendment. ( Id. Count III.) Durham's federal causes of action are filed pursuant to 42 U.S.C. § 1983.

As background for this case, the Court notes two related cases in this Court. The first is Durham v. Jones, Civ. No. WMN-10-2534, (" Durham I " ), in which a jury found Sheriff Robert Jones of Somerset County liable in his personal capacity for First Amendment retaliation against Durham when Jones terminated him after Durham went to the press and public officials about concerns relating to improper changing of police reports and pressure to bring charges against an arrestee. The jury's verdict on May 18, 2012, of $412,000 in economic losses and $700,000 in noneconomic losses was affirmed by the Fourth Circuit, 737 F.3d 291 (4th Cir. 2013).

The second case is Durham v. Somerset County, Maryland et al., Civ. No. JKB-12-2757, (" Durham III " ).[3] In that case, Durham has sued Somerset County, the Somerset County Commissioners in their personal and official capacities, the Somerset County Attorney in his personal capacity, Deputy Sheriff Ronnie Howard in his

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personal and official capacities, and Sheriff Jones in his personal capacity from August 2, 2012, to the present as well as in his official capacity for events occurring September 14, 2009, through the present. A second amended complaint has been recently filed in Durham III, which is still in the discovery phase. That suit seeks to hold those defendants liable for Durham's termination and for acts since then relating to his reinstatement.

The focus of the instant suit is on Defendants' decision not to waive recertification of Durham's police powers but to require him to go through the certification process again after his termination had been reversed by the Maryland Court of Special Appeals and he had been reinstated in the Somerset County Sheriff's Office (" SCSO" ). Durham alleges the original revocation of his certification, the " refus[al] to vacate [Defendants'] prior order revoking the Plaintiff's law enforcement powers," and the decision to require him to be recertified denied him procedural due process and amounted to retaliation against him for filing Durham I, Durham II, and this case. (Am. Compl. ¶ ¶ 12-13.)

Specifically, Durham alleges that his police powers were automatically revoked on September 16, 2009, because of his termination by Sheriff Jones. ( Id. ¶ 14.) He says he was not afforded a hearing before this revocation occurred. ( Id. ¶ 15.) Durham alleges " Jones advised the MPTC to place a 'red flag' on Plaintiff Durham's MPTC file" and that this amounted to a request that he be " blacklisted" from ever again being certified as a police officer. ( Id. ¶ 16.) Durham alleges that a letter from Rapp on February 3, 2011, stated that " most likely" Durham would not be granted certification " until the Court cases (including any and all appeals) have been resolved." (Am. Compl. ¶ 17; Compl., Ex. 3.[4]) This letter was written after Durham I and Durham II were filed. (Am. Compl. ¶ 19.)

Durham further alleges that the MPTC learned he had prevailed in Durham I and Durham II but " refused to reinstate his police certification without Plaintiff Durham having to undergo extensive background, medical, psychological and lie detector testing, which they forced on Plaintiff but not all other law enforcement officers who have 'gaps' in their actual employment." ( Id. ¶ 20.) After the termination had been judicially reversed, " the MPTC Defendants proceeded to deny one waiver request after another relating to the Plaintiff." ( Id. ¶ 21.) " When they voted to deny a waiver request in August 2013, each MPTC Defendant was plainly aware that this lawsuit had been filed against them. The August 2013 denial was done simply to retaliate against the Plaintiff; and harm him in his profession." ( Id. ¶ 23.) Durham went through the certification process and was recertified in December 2013. ( Id. ¶ 24.) Additional allegations will be discussed in the Court's analysis.

III. Analysis

A. Defendant Vogt's Status as an FBI Agent

Defendant Stephen E. Vogt is the Special Agent in Charge of the Baltimore office of the Federal Bureau of Investigation (" FBI" ). (Vogt's Mot. Supp. Mem. 11.) He argues he " should be dismissed with prejudice because, as a federal official, 42 U.S.C. § 1983 and the Maryland Declaration of Rights do not apply to him." ( Id. Supp. Mem. 1.)

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The Court disagrees with Vogt's proposition that his status as a federal official or employee bars suit against him under 42 U.S.C. § 1983 and the Maryland Declaration of Rights. Section 1983 provides,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

Pertinent to this suit, every person who, under color of Maryland state law, caused a deprivation of Durham's federal constitutional right of due process and right not to be retaliated against for exercising First Amendment rights shall be liable to him for injuries he suffered from the violation of his rights. The statute does not provide an exemption for federal officials acting under color of state law. Vogt cites various cases from other judges of this Court indicating that § 1983 has no application to the federal government or its officers and that actions against them must be brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See, e.g., Chiang v. Lappin, Civ. No. RDB-07-1017, 2008 WL 2945434 (D. Md. July 24, 2008); Curtis v. Pracht, 202 F.Supp.2d 406, 418 (D. Md. 2002); Tinch v. United States, 189 F.Supp.2d 313, 318-19 (D. Md. 2002). Those cases are all distinguishable because the claims made in them were ...

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