45 F.3d 790 (4th Cir. 1995), 94-1569, DiMeglio v. Haines

Docket Nº:94-1569.
Citation:45 F.3d 790
Party Name:Frank M. DiMEGLIO, Plaintiff-Appellee, v. J. Robert HAINES, individually and in his former official capacity as Zoning Commissioner of Baltimore County, Maryland, Defendant-Appellant, and Arnold M. Jablon, individually and in his official capacity as Director of Zoning Administration and Development Management of Baltimore County, Maryland; Roger H
Case Date:February 02, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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45 F.3d 790 (4th Cir. 1995)

Frank M. DiMEGLIO, Plaintiff-Appellee,


J. Robert HAINES, individually and in his former official

capacity as Zoning Commissioner of Baltimore

County, Maryland, Defendant-Appellant,


Arnold M. Jablon, individually and in his official capacity

as Director of Zoning Administration and Development

Management of Baltimore County, Maryland; Roger Hayden,

individually and in his official capacity as Executive of

Baltimore County, Maryland; Baltimore County, Maryland, a

municipal corporation, Defendants.

No. 94-1569.

United States Court of Appeals, Fourth Circuit

February 2, 1995

Argued Oct. 31, 1994.

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ARGUED: Kathleen Morris McDonald, Irwin, Kerr, Green, McDonald & Dexter, Baltimore, MD, for appellant. Donald Frederick Chiarello, Hochberg, Chiarello, Costello & Dowell, Towson, MD, for appellee. ON BRIEF: Charles M. Kerr, Brian C. Temple, Irwin, Kerr, Green, McDonald & Dexter, Baltimore, MD, for appellant. Michael P. Tanczyn, Towson, MD; Charles Mentzer, Baltimore, MD, for appellee.

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined.


LUTTIG, Circuit Judge:

Appellant J. Robert Haines, formerly the Zoning Commissioner of Baltimore County, appeals from an order of the United States District Court for the District of Maryland denying his motion for summary judgment on appellee Frank M. DiMeglio's federal section 1983 and state law claims. Because the district court erred in denying Haines qualified immunity on the section 1983 claim, we vacate the judgment below and remand with instructions to enter judgment in favor of Haines on that claim.


Haines served as Zoning Commissioner for the Office of Zoning for Baltimore County ("the Office") from 1987 to 1991. During his tenure, the practice of the Office was to assign each zoning inspector a specific geographic area of the county within which to investigate zoning violations; the seven areas of assignment roughly equalled the seven council districts. In March 1989, the Office hired DiMeglio as its eighth zoning inspector. Apparently, the Office did not redraw the assignment areas upon DiMeglio's hire, in part because no government vehicle was available for his exclusive use. Instead, the Office positioned him to serve in an at-large or county-wide capacity to handle overflow cases.

In August 1990, DiMeglio was investigating "the Partlett case," and, with Haines' approval, had issued a citation against the Partletts for several zoning violations. On September 11, 1990, DiMeglio, as a representative of the Office, attended a meeting of the Earl's Beach Improvement Association ("EBIA"), a citizens' group concerned with the case. DiMeglio learned that the Partletts' attorney had proposed a settlement between his client and the EBIA, whereby the Partletts would correct some, but not all, of the zoning violations and would pay $2500

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towards the EBIA's attorney's fees. At this point, DiMeglio addressed the meeting, stating essentially that the offer was not a "good deal" because the EBIA could not agree to permit the Partletts to continue violating pertinent zoning requirements. J.A. at 12-13. Shortly thereafter, DiMeglio alleges that Haines personally reprimanded him for giving legal advice to the EBIA and that Haines convened a meeting of all zoning inspectors where he "admonished them against giving 'legal advice' to citizens' groups." J.A. at 14. Also, according to DiMeglio, in October or November 1990, Haines advised DiMeglio that "the citizens complaining about the zoning violation on the Partlett property 'don't care anymore' and that 'a deal is being made at the Board [of Appeals].' " J.A. at 15-16 (alteration in original). Haines allegedly also stated, regarding a hearing on the case, that, "Nobody's going to show up. Don't stick your neck out. I won't back you up." J.A. at 16.

In December 1990, Haines redrew the seven zoning-inspector territories into eight territories. Seven of the eight inspectors were then reassigned, including DiMeglio, who was assigned to a territory in northern Baltimore County. The reassignment coincided with an additional county vehicle becoming available for DiMeglio's sole use. DiMeglio's salary and benefits were not reduced, nor were any perquisites of his office adjusted or eliminated. DiMeglio also contends that after this reassignment, Haines told him that "[y]ou'll never be promoted in this Office," J.A. at 17, however at no time after these actions occurred was DiMeglio eligible for or denied a promotion.

Almost three years later, DiMeglio brought this suit under 42 U.S.C. Sec. 1983, alleging that Haines had violated his rights under the First and Fourteenth Amendments by reassigning him to a different enforcement territory in retaliation for his exercise of free speech. DiMeglio also asserted state law claims, including a violation of Article 40 of the Maryland Declaration of Rights and common-law tortious interference with contract.

Haines pleaded a defense of qualified immunity and moved for summary judgment on that ground. The district court, without a hearing and by letter order dated April 7, 1994, denied Haines' motion summarily, stating only that "there are differences as pointed out in the motion as well as in the plaintiff's response" and "[s]ince discovery has not been completed, summary judgment at this time is inappropriate under the appropriate court rulings." J.A. at 245. Haines filed this interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985).



Government officials are protected by qualified immunity "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). For this reason, immunity shields officials "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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). When a plaintiff seeks to hold an official personally liable for his exercise of a discretionary function, the court must, in addressing the qualified immunity defense, consider whether the plaintiff has alleged a violation of law that was clearly established at the time the challenged actions were taken. This inquiry is a pure question of law, see Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, and "hence always capable of decision at the summary judgment stage." Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.1992). See also Siegert v. Gilley, 500 U.S. 226, 231, 232, 111 S.Ct. 1789, 1792-93, 1793, 114 L.Ed.2d 277 (1991); Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). 1

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Indeed, the Supreme Court has repeatedly recognized that because the question of immunity is essentially a legal question, see Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, "[i]mmunity ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). "[E]ven such pretrial matters as discovery are to be avoided if possible, as '[i]nquiries of this kind can be peculiarly disruptive of effective government.' " Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (second alteration in original) (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at 2737).

A district court may deny a motion for summary judgment based on qualified immunity and allow discovery to proceed only if it has addressed the threshold immunity question, and concluded (1) that the plaintiff alleged a violation of a clearly established right, but (2) that there existed a material factual dispute over what actually occurred, and (3) under the defendant's version, a reasonable official could have believed that his conduct was lawful. Anderson, 483 U.S. at 646-47 n. 6, 107 S.Ct. at 3042 n. 6. In instances where there is a material dispute over what the defendant did, and under the plaintiff's version of the events the defendant would have, but under the defendant's version he would not have, violated clearly established law, it may be that the qualified immunity question cannot be resolved without discovery. Id. In such circumstances, it simply may be impossible to protect the defendant from all of the burdens that attend the pretrial process. Of course, after discovery and upon a proper motion, the district court may reconsider the question of qualified immunity. "[I]f discovery fail[ed] to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts," the defendant will yet be entitled to summary judgment, even though the acts alleged by the plaintiff constitute a violation of clearly established rights. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; see Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988).


Although the Supreme Court's decision in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), has generated significant confusion, that case did not, contrary to the view of almost every court, effect a fundamental change in this analytical framework for deciding whether an official is entitled to qualified immunity. The Court in Siegert did nothing other than clarify that this is the framework within which the qualified immunity analysis is to be undertaken, as it said it was doing.

A large number of courts have read Siegert as...

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