Davis v. DiPino

• Decision Date: 01 September 1993
• Docket Number: No. 24,24
• Citation: 637 A.2d 475,99 Md.App. 282
• Parties: Wayne Nelson DAVIS v. Bernadette DiPINO, et al. ,
• Court: Court of Special Appeals of Maryland

Page 282

99 Md.App. 282

637 A.2d 475

Wayne Nelson DAVIS v. Bernadette DiPINO, et al.

No. 24, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Feb. 23, 1994.

Certiorari Granted July 14, 1994.

Peter Ayers Wimbrow, III, Ocean City, for appellant.

Guy R. Ayres, III (Ayres, Jenkins, Gordy & Almand, P.A. on the brief), Ocean City, for appellees DiPino, Mayor and City Council.

Julia M. Freit, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee Turner.

Argued before MOYLAN, WENNER and MURPHY, JJ.

MURPHY, Judge.

Wayne Nelson Davis, appellant, a resident of Ocean City, Maryland, was arrested on a warrant obtained by Bernadette DiPino, a sworn officer of the Ocean City police Department. DiPino is one of three appellees who are alleged to have violated appellant's rights under 42 U.S.C. § 1983 ("1983") and under the Maryland Constitution. The other appellees are DiPino's employer, the Mayor and City Council of Ocean City (Ocean City), and Donald E. Turner, the District Court Commissioner who issued the warrant. We conclude that appellant's complaint fails to state a claim upon which relief can be granted.

On July 5, 1991, DiPino presented Commissioner Turner with an APPLICATION FOR STATEMENT OF CHARGES in which she alleged that, on May 12, 1991, Davis

did knowingly and willfully advise an unknown white male as to the identity and occupation of the writer and Det Alice J. Brumbley. Writer and Brumbley were working in an undercover capacity on Wicomico Street, Ocean City, Worcester County, Maryland. While entering a vehicle writer and Brumbley observed the above named defendant state to an unknown white male 'Look those two girls are narcs' Narcs being a derogatory street term for a narcotics officer. This statement was said in a loud enough voice as so the Detectives, approximately three (3) yard [sic] away, could hear and any passerby could also hear placing the Detectives in extreme danger and compromising their cover.

Based on those allegations, Commissioner Turner decided to charge Davis with two counts of "obstructing and hindering," and to issue an arrest warrant even though Davis's home address appeared on DiPino's APPLICATION. On July 6, 1991, Davis was arrested at his place of employment and brought before Commissioner Turner, who scheduled an October 2, 1991 trial date, and set a bail in the amount of $50,000.00. Davis was unable to post bail until July 8th. On October 2nd, the State entered a nolle prosequi to each charge.

Davis then filed a nine count complaint in the Circuit Court for Worcester County, seeking money damages from DiPino and Ocean City, and requesting injunctive and declaratory relief against Turner. Count I alleged that DiPino had violated appellant's rights under 42 U.S.C. § 1983; Count II alleged that DiPino had violated appellant's rights under Articles 21, 24, 26 and 40 of the Maryland Declaration of Rights; Count III contained a "false arrest/imprisonment" claim against DiPino and Ocean City; Count IV contained a malicious prosecution claim against DiPino and Ocean City; Count V contained an abuse of process claim against DiPino and Ocean City; Count VI contained an intentional infliction of emotional distress claim against DiPino and Ocean City; Count VII contained a 1983 and Maryland constitutional claim against Ocean City for its failure to "instruct, supervise, control and discipline" DiPino; Count VIII sought injunctive and declaratory relief against Turner under 42 U.S.C. § 1983; Count IX sought injunctive and declaratory relief against Turner under Articles 24 and 26 of the Maryland Declaration of Rights.

Appellees moved for summary judgment on the basis of affidavits filed by DiPino and Turner. Davis filed an affidavit in opposition to those motions. After hearing argument of counsel, the circuit court granted summary judgment in favor of each appellee. This appeal followed.

Each of the parties has presented a different question for our review. Appellant asks:

Did the lower court err in granting defendants summary judgment?

A. Was Detective DiPino entitled to qualified immunity in the claim brought pursuant to 42 U.S.C. Sec. 1983?

B. Was a compensable violation of Plaintiff's rights (,) protected by the Declaration of Rights, committed by Detective DiPino?

C. Did Detective DiPino conclusively demonstrate an absence of malice with regard to Plaintiff's common law claims?

D. Even if Detective DiPino is entitled to qualified immunity, is Ocean City entitled to judgment on the 42 U.S.C. Sec. 1983 claim?

E. Was the STATEMENT OF CHARGES properly issued by Commissioner Turner?

F. Was there sufficient evidence that Mr. Davis would "... not respond to a Summons" to justify issuing an arrest warrant?

DiPino and Ocean City ask:

"Did the trial court correctly grant summary judgment for Bernadette DiPino and Mayor and City Council of Ocean City?"

Commissioner Turner asks:

"Did the trial court correctly grant summary judgment for Turner in view of the fact that Davis sought only injunctive or declaratory relief against Turner but alleged only a past injury that was unlikely to recur?"

In the arguments presented to us, each of the parties has urged that we accept as true those assertions of disputed fact that support his or her contentions, and has ignored those assertions of disputed fact that undermine his or her contentions. Appellees were not entitled to summary judgment on the basis of the affidavits filed by DiPino and Turner. We are persuaded, however, that each count of appellant's complaint failed to state a claim upon which relief can be granted. We therefore affirm the circuit court's decision to terminate the proceedings.

I.

Davis v. DiPino

To state a 1983 claim upon which relief can be granted against DiPino, the complaint must allege facts that--if proven to be true--would establish:

(1) the defendant-officer engaged in activity that violated one of the plaintiff's federal constitutional rights,

(2) at a time when that particular constitutional right had been clearly established, and

(3) under circumstances in which no reasonable officer would fail to realize that such activity constituted a violation of the plaintiff's rights.

Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Hunter v. Bryant, 502 U.S. 224, ----, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). To state a Maryland constitutional claim upon which relief can be granted against DiPino, the complaint must allege facts that--if proven to be true--would establish:

(1) The defendant-officer engaged in activity that violated one of the plaintiff's Maryland constitutional rights, and

(2) The defendant-officer engaged in such activity with actual malice toward the plaintiff.

There are important differences between actions filed pursuant to 42 U.S.C. § 1983 and actions based on a violation of the Maryland constitution. The federal constitutional right that the plaintiff claims has been violated must have been "clearly established" at the time of the alleged violation. No appellate decision has addressed the issue of whether the Maryland constitutional right must have been clearly established at the time of the alleged violation. Law enforcement officers have a judicially created qualified "immunity from suit" in 1983 actions. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).

In the absence of a statute, "an official who violates an individual's rights under the Maryland constitution is not entitled to any immunity, and ... the presence or absence of malice is pertinent only to the question of punitive damages." Clea v. City of Baltimore, 312 Md. 662, 684, 541 A.2d 1303 (1988). There is however, a statutory immunity that is applicable to this case. Md.Code Ann.Cts. & Jud.Proc. art. § 5-321(b)(1) (1991 Repl.Vol.) provides:

An official of a municipal corporation, while acting in a discretionary capacity, without malice and within the scope of the official's authority, is immune as an official or individual from civil liability for the performance of the action.

The parties agree that C.J. 5-321(b)(1) has an important operative effect on Maryland constitutional and non-constitutional claims against sworn law enforcement officers of a municipal corporation's police department. It assigns to the plaintiff the burden of pleading--and proving--that the defendant-officer acted with "malice." In a 1983 claim, malice is established by proof that the defendant-officer (a) violated a clearly established constitutional right of the plaintiff (b) under circumstances in which no reasonable officer would fail to realize that his or her conduct was a violation of appellant's rights. Anderson, supra, 483 U.S. at 641, 107 S.Ct. at 3040. In claims based on Maryland law, malice is established by proof that the defendant-officer "intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff." Leese v. Baltimore County, 64 Md.App. 442, 480, 497 A.2d 159 (1985).

Appellant's obligation to plead and prove malice makes the following principles applicable to each of his claims against DiPino. We must assume the truth of every fact asserted in the complaint. Cox v. Prince George's County, 296 Md. 162, 169, 460 A.2d 1038 (1983). If the particular facts that have been alleged are sufficient to establish malice, DiPino is not entitled to summary judgment merely because she has filed an affidavit in which she denies that she acted with malice. Di Grazia v. County Exec. for Mont. Co., 288 Md. 437, 445, 418 A.2d 1191 (1980). Clea, supra, 312 Md. at 677-678, 541 A.2d 1303 (1988). If the particular facts that have been alleged are not sufficient to establish malice, DiPino is entitled to a dismissal for failure to state a claim upon which relief can be granted. Sawyer v....