Borzilleri v. Mosby

• Decision Date: 31 May 2016
• Docket Number: Civil No. JFM-15-3760
• Citation: 189 F.Supp.3d 551
• Parties: Keri L. Borzilleri v. Marilyn Mosby
• Court: U.S. District Court — District of Maryland

189 F.Supp.3d 551

Keri L. Borzilleri

v.Marilyn Mosby

Civil No. JFM-15-3760

United States District Court, D. Maryland.

Signed May 31, 2016

Stacey Kamya Grigsby, Ryan Y. Park, Boies Schiller & Flexner LLP, Washington, DC, Nafees Syed, Boies Schiller and Flexner LLP, New York, NY, for Keri L. Borzilleri.

Bradley J. Neitzel, Office of the Attorney General of Maryland, Baltimore, MD, for Marilyn Mosby.

MEMORANDUM

J. Frederick Motz, United States District Judge

Plaintiff Keri L. Borzilleri brings suit against defendant Marilyn Mosby seeking damages for violations of the First Amendment pursuant to 42 U.S.C. § 1983, the Maryland Declaration of Rights, and Maryland tort law, relating to Mosby's termination of Borzilleri. Now pending is Mosby's motion to dismiss Borzilleri's amended complaint. The parties have fully briefed the motion, and no oral argument is necessary. See Local Rule 105.6. For the reasons below, I dismiss Counts I–III of Borzilleri's amended complaint with prejudice and dismiss Counts IV–V without prejudice.

BACKGROUND

This dispute arises out of Baltimore City State's Attorney Marilyn Mosby's dismissal of Keri Borzilleri, an Assistant State's Attorney ("ASA"), shortly after Mosby assumed her post. Before her termination, Borzilleri had worked as an ASA in the Baltimore City State's Attorney's Office ("Baltimore City SAO") for over nine years.¹ (ECF No. 14, ¶ 1). Borzilleri had served as a line prosecutor for two prior Baltimore City State's Attorneys—Patricia Jessamy and Gregg Bernstein—and was, in her own words, a "career prosecutor" in the office. (Id. at ¶¶ 5, 11). Before her termination, Borzilleri had also worked as one of the office's three "Community Prosecutors," who "prosecuted complex crimes and served as a liaison between the State's Attorney's Office, the community, and the local police." (Id. at ¶ 5).

In June 2013, Mosby (who had formerly worked as an ASA under Bernstein, but who had since left for private practice) announced she would challenge Bernstein in the 2014 Democratic Party Primary for Baltimore City State's Attorney. (Id. at ¶ 12). According to Borzilleri, the primary "developed into a fiercely contested race and witnessed several tense exchanges between the proponents of Mr. Bernstein and Ms. Mosby." Id. Borzilleri supported her boss Bernstein. (Id. at ¶ 14). Borzilleri had no official role in Bernstein's campaign and never donated money to him; she did, however, host a "meet and greet" event for Bernstein at her house, which Bernstein and approximately twenty other people attended. Id. Borzilleri publicized the event by sending electronic leaflets touting Bernstein's record, and at the event she gave a speech supporting Bernstein's re-election bid, touting his term as State's Attorney and stating that he had helped improve Baltimore. Id. After the event, the Bernstein campaign posted pictures of the event on its Facebook page.² Id. Borzilleri expressed her support for Bernstein's candidacy in other ways as well, including by speaking to prospective voters at another of his campaign events and by placing a Bernstein reelection sign in front of her house. (Id. at ¶¶ 16–17).

Prior to the campaign, Borzilleri describes her relationship with Mosby as "always cordial and respectful." (Id. at ¶ 10). But after Borzilleri began campaigning for Bernstein, their relationship soured. For instance, Borzilleri alleges that on two occasions, when she accompanied Bernstein in her official capacity at community meetings that Mosby also attended, Mosby "glared directly" at her and "did not acknowledge or otherwise greet her." (Id. at ¶ 18).

Mosby defeated Bernstein in the June 2014 Democratic primary and went on to win the general election for Baltimore City State's Attorney in November of the same year. (Id. at ¶ 19). She was sworn in as State's Attorney on January 5, 2015. (Id. at ¶ 22). The day after Mosby's swearing-in, a newly minted Mosby political appointee, Joshua Rosenblatt, asked Borzilleri if she would be interested in joining a small unit within the Baltimore City SAO that "would collect and manage intelligence." (Id. at ¶ 23). Borzilleri expressed interest. Two days later, Rosenblatt again approached Borzilleri and told her he had received information that a recruit for his new unit had campaigned for Bernstein. He asked Borzilleri to describe her connection with the Bernstein campaign "so that he could figure out ‘how to fix the problem’ before it became ‘an issue.’ " (Id. at ¶ 24). Borzilleri did not deny her support for Bernstein and admitted to holding a Bernstein campaign event at her house. The next day, another Mosby appointee named Steward Beckham emailed Borzilleri directing her to meet with him. (Id. at ¶ 26). On Borzilleri's way to the meeting, she bumped into Rosenblatt, who could only "confirm[ ] that the meeting related to their conversation the day before about her support for Mr. Bernstein's campaign." Id. At the meeting, Beckham fired Borzilleri but "gave no details or reasons as to why she was being fired." Id. As Borzilleri was collecting her belongings, Beckham delivered a letter, signed by Mosby, stating that she was being terminated without cause, effective immediately. (Id. at ¶ 27).

Shortly after her termination, Borzilleri contacted the City of Baltimore to determine her eligibility for a deferred vested pension. (Id. at ¶ 51). Plaintiff was eligible for such a pension only if she could show that she was "laid off due to no fault of her own." (Id. at ¶ 52). She was told by the City of Baltimore, however, that her termination letter, in which Mosby stated she was being terminated without cause, was insufficient documentation of a layoff. When Borzilleri wrote the Baltimore City SAO for further documentation, Beckham wrote that her position had not been eliminated and thus, the City of Baltimore determined she was not eligible for the pension.

(Id. at ¶¶ 54–55). It was only later, after Borzilleri sent the State of Maryland a demand letter setting out substantially the same claims as in the current lawsuit, that the City of Baltimore sent her a letter indicating that she was, contrary to their earlier determination, eligible for the pension. This letter appears to indicate that the City of Baltimore re-characterized her termination as a layoff, (see id. at ¶ 59), and Borzilleri alleges that on information and belief, Mosby and/or other State employees instructed the City of Baltimore to reclassify Borzilleri's termination as such upon receiving her demand letter.

Borzilleri alleges that she was one of several State's Attorney's employees fired for their support of Bernstein. (See id. at ¶¶ 30–36). In total, Borzilleri alleges Mosby fired six veteran prosecutors for political reasons and at least thirty prosecutors left in part because of those firings. (Id. at ¶ 43). Borzilleri now sues Mosby for violations of her First Amendment rights pursuant to 42 U.S.C. § 1983 (Counts I and II), violations of her Article 40 rights under the Maryland Declaration of Rights (Counts III and IV), and for abusive discharge (Count V).

STANDARD

When ruling on a motion to dismiss, a court accepts "all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir.2009). A court, however, cannot afford the same deference to legal conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint, relying on only well-pled factual allegations, must state at least a "plausible claim for relief." Id. at 678, 129 S.Ct. 1937. The "mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen , 684 F.3d 435, 439 (4th Cir.2012). To determine whether a complaint has crossed "the line from conceivable to plausible," a court must employ a "context-specific inquiry," drawing on the court's "experience and common sense." Iqbal , 556 U.S. at 680, 129 S.Ct. 1937.

ANALYSIS

I. First Amendment and Article 40 Patronage Dismissal Claims (Counts I and III)

Mosby seeks to dismiss Counts I and III of Borzilleri's complaint alleging that she terminated Borzilleri in violation of her First Amendment and Article 40 rights against patronage dismissal. Mosby attacks these claims on three fronts. First, she argues that Borzilleri fails to state a claim on both counts. Second, regarding the First Amendment claim, she argues that she is entitled to qualified immunity because she did not violate "clearly established law." Pearson v. Callahan , 555 U.S. 223, 243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Lastly, regarding the Article 40 patronage claim, Mosby claims entitlement to statutory immunity pursuant to the Maryland Torts Claims Act ("MTCA").

a. Plausibility of Borzilleri's Patronage Claims

I first consider whether Borzilleri has stated plausible Article 40 and First Amendment patronage dismissal claims. Mosby argues that Borzilleri fails to state a political patronage claim because Borzilleri is a policymaker or alter ego to Mosby, as described by controlling case law, who is exempt from the prohibition on patronage dismissals. I agree.

The First Amendment provides that, "Congress shall make no law...abridging the freedom of speech," and Article 40 provides that "every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects." Article 40 is " ‘co-extensive’ with the First Amendment, and is construed in pari materia with it." Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., Md. , 684 F.3d 462, 468 n. 3 (4th Cir.2012).

The First Amendment protection against patronage dismissals, established by the Supreme Court in Elrod v. Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel , 445 U.S. 507, ...