Hector v. Weglein, Civ. No. K-81-937.
Citation | 558 F. Supp. 194 |
Decision Date | 01 September 1982 |
Docket Number | Civ. No. K-81-937. |
Parties | Boston R. HECTOR v. Officer James WEGLEIN and Donald D. Pomerleau and Mayor and City Council of Baltimore. |
Court | United States District Courts. 4th Circuit. United States District Court (Maryland) |
Irwin E. Weiss and Seidenman & Weiss, P.A., Baltimore, Md., for plaintiff.
Robert C. Verderaime and Verderaime & Dubois, Baltimore, Md., for defendant Officer James Weglein.
Benjamin L. Brown, City Sol., Baltimore, Md., for defendants Donald D. Pomerleau and Mayor and City Council of Baltimore.
Millard S. Rubenstein, Asst. City Sol., Baltimore, Md., for defendant Donald D. Pomerleau.
J. Shawn Alcarese, Asst. City Sol., Baltimore, Md., for defendant Mayor and City Council of Baltimore.
In this case, two of the defendants, the Mayor and City Council of Baltimore (City) and Donald D. Pomerleau, the former Police Commissioner of Baltimore City (Commissioner) have filed motions for summary judgment1 with regard to the federal claims stated against them by plaintiff, Boston R. Hector (Hector), under 42 U.S.C. § 1983 and also under Maryland law pursuant to pendent jurisdiction. The third defendant, Baltimore City Police Officer James Weglein (Weglein) has filed no pretrial motions as to Hector's § 1983 claims against him. However, Weglein does seek dismissal prior to trial of Hector's complaint against him under Maryland law for malicious prosecution. Subject-matter jurisdiction over all of Hector's § 1983 claims exists pursuant to 28 U.S.C. § 1343(3). Whether pendent jurisdiction should be exercised by this Court in connection with any of Hector's state-law based contentions raises questions for threshold determination herein.
In his Complaint, Hector alleges that on April 22, 1980, at about 1:20 p.m., he was standing on the north side of Lexington Street, west of Paca Street, in Baltimore City, eating peanuts when he was told to "move on" by Weglein. As Hector was walking away, Weglein allegedly grabbed Hector and, allegedly without provocation, kicked him, knocked him against the wall of the Lexington Market and then began beating him while he (Hector) fell helplessly to the ground. Weglein then arrested Hector, again allegedly without any probable cause, and initiated criminal proceedings against him in the District Court of Maryland for Baltimore City, charging him (Hector) with assault and disorderly conduct. On June 6, 1980, the charges against Hector were dismissed by that Court because Weglein failed to appear.
In Count I of his Complaint, Hector asserts that Weglein's willful and/or wantonly or grossly negligent actions, taken under color of state law, in bad faith and without a reasonable belief in their legality, deprived him (Hector) of his constitutional rights to due process and equal protection of the laws, thereby giving rise to a cause of action under § 1983, and also caused him severe injuries and loss of time from his employment. In Counts II and III, Hector asserts § 1983 claims against both the Commissioner and the City, respectively. In those counts, Hector first claims that "Weglein was at all times in the course of his conduct ... the agent, servant and/or employee of" the Commissioner and the City, that the Commissioner and the City "ratified, consented to or acquiesced in the acts of" Weglein by failing to dismiss him despite previous charges against him of excessive force. Second, in those two counts, Hector claims that the Commissioner and the City were "grossly and culpably negligent ... in the selection, appointment, training, supervision and retention of" Weglein and in failing to dismiss Weglein despite such previous charges of excessive force. Third, Hector claims that the City was "grossly and culpably negligent ... in directing ... the Commissioner to retain" Weglein in the light of such previous charges of excessive force and that the City "instituted, adopted or acquiesced in policies that deprived him of his constitutional rights." Hector claims that his injuries "were caused by the willful or grossly negligent acts of the" Commissioner and by the policies "instituted, adopted or acquiesced in" by the City.
Hector also asserts claims against Weglein under Maryland law for assault and battery as an intentional tort (Count IV) and in negligence (Count VII), for malicious prosecution (Count X) and for false arrest and imprisonment (Count XIII). In Counts V, VIII, XI and XIV, Hector contends that the Commissioner "is vicariously liable" for the common-law torts committed upon Hector by Weglein, the Commissioner's "agent, servant and/or employee," as well as "directly liable and responsible" and/or "grossly and culpably negligent ... in the selection, appointment, training, supervision and retention of" Weglein and in failing to dismiss Weglein despite previous complaints against him of excessive force. In Counts VI, IX, XII and XV, Hector makes substantially identical assertions against the City and claims, in addition, that the City is "directly liable and responsible" for said common-law torts and/or "grossly and culpably negligent ... in directing its agent, servant, and/or employee," the Commissioner, "to retain" Weglein as a Baltimore City Police Officer despite the previous charges against him of excessive force. Hector urges this Court to exercise pendent jurisdiction over each of his state-law claims against Weglein, the Commissioner and the City. With regard to all of his contentions, whether founded in federal or state law, Hector seeks compensatory and punitive damages, attorney's fees and costs from each of Weglein, the Commissioner and the City.
The Commissioner contends, inter alia, that he was at all relevant times an official of the State of Maryland and thus, in his official capacity, immune from suit under § 1983 pursuant to the Eleventh Amendment and that, in any event, he in no way directly contributed to or was in any way involved in the alleged deprivation of Hector's constitutional rights. The City contends, inter alia, that members of the Baltimore City Police Department (Department) such as Weglein are agents of the State of Maryland and thus not employees or agents of the City and that the City could not have caused Hector's alleged injuries since it (the City) possesses no control over the management of the Department, which is not an agency of the City, de facto or otherwise, but an agency of the State of Maryland. Additionally, the City contends that Hector has no remedy against it for the common-law torts of Weglein.
The initial issue presented in this case is whether the Eleventh Amendment protects the Commissioner and the Department herein because the Commissioner is a state rather than a city official and the Department is a state rather than a city agency. In Wilcher v. Curley, 519 F.Supp. 1 (D.Md. 1980 & 1981), this Court wrote (at 3-5):
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