Hector v. Weglein, Civ. No. K-81-937.

Citation558 F. Supp. 194
Decision Date01 September 1982
Docket NumberCiv. No. K-81-937.
PartiesBoston R. HECTOR v. Officer James WEGLEIN and Donald D. Pomerleau and Mayor and City Council of Baltimore.
CourtUnited 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.

FRANK A. KAUFMAN, Chief Judge.

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.

STATE/CITY ISSUE

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):

Herein the record establishes:
(1) The City determines the amount of revenue to be allocated for the Department and provides about two-thirds of that revenue. The remaining third comes from the State.
(2) The number of employees the police department has from time to time depends upon the funds made available by the City and upon the Commissioner's determination of the number of employees those funds can adequately compensate.
(3) All employees of the Department are paid directly by the City, and are covered by the same medical and hospital insurance as that which is available to employees of the City in general.
(4) The Commissioner reports to the Mayor and to the City Council on a regular and also on an as-needed basis.
(5) The estimates by the Commissioner of the amount of money needed to fund the Department, review of those estimates, and subsequent appropriations are subject to the same fiscal policies and procedures as are applicable to other municipal agencies.
(6) The Civil Service Commission of Baltimore, a City agency, conducts examinations for positions in the police department and supplies the Commissioner with a list of candidates.
(7) The Commissioner reports at certain intervals to the Governor of the State of Maryland (Governor), to the Mayor of the City of Baltimore, and to the Baltimore City Council (City Council). He also submits to the City Council a mid-year fiscal report on Department operations.
(8) The Commissioner rarely consults with the Mayor. Before July 1, 1979, the Commissioner frequently consulted with the Assistant Attorney General of Maryland who, up to that time, acted as counsel to the Department. Since July 1, 1979 the Commissioner has been represented by the City Solicitor for Baltimore City.
(9) The salary of employees of the Department is set by the Mayor and City Council. Employees of the Department other than the Commissioner are paid by the City. The Commissioner receives $45,000 per annum, $15,000 of which is paid by the State.
(10) Department contracts are made and executed in the name of the City.
(11) The Mayor appoints the Commissioner and has the power to remove the Commissioner. Such power to appoint and to remove was given to the Mayor by the Maryland legislature in 1976 by certain statutory amendments to Section 16-5 of the Code of Public Local Laws of Baltimore City which became effective July 1, 1976.6
(12) The Baltimore City Local Laws, section 16-2(a) declares that the "Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland." However, that declaration is not in itself determinative of whether the Department is a city or a state agency for § 1983 purposes since state and local law are only one of several indicators of an agency's status. See Patterson v. Ramsey, 413 F.Supp. 523, 529 (D.Md.1976), aff'd, 552 F.2d 117 (4th Cir.1977).
* * * * * *
While the Department and the Commissioner are hybrid creatures, the City exercises such substantial control over the day-to-day activities and policies of the Department that if
...

To continue reading

Request your trial
46 cases
  • Proctor v. Wells Fargo Bank, N.A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 25, 2018
    ...by statute on other grounds as stated in Houghton v. Forrest , 412 Md. 578, 989 A.2d 223, 230 (2010) ; see also Hector v. Weglein , 558 F.Supp. 194, 198 (D. Md. 1982) (denying Baltimore City Police Department and Police Commissioner's motion to dismiss based on Eleventh Amendment immunity b......
  • Sun Dun, Inc. of Washington v. Coca-Cola Co., Civ. A. No. S 88-2540.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 25, 1990
    ...a Maryland state court, it would be unfair for this Court to decline to exercise jurisdiction over these claims. See Hector v. Weglein, 558 F.Supp. 194, 207 (D.Md.1982); 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3567.1, at 128-32 Claims Based on the D.C.Code In ea......
  • Clea v. Mayor and City Council of Baltimore
    • United States
    • Court of Appeals of Maryland
    • September 1, 1986
    ...Bureau, 236 Md. 476, 479-480, 204 A.2d 521 (1964), cert. denied, 382 U.S. 849, 86 S.Ct. 95, 15 L.Ed.2d 88 (1965); Hector v. Weglein, 558 F.Supp. 194, 197-199 (D.Md.1982). It is true that, by Ch. 920 of the Acts of 1976, the General Assembly transferred the power to appoint the Baltimore Cit......
  • Grim v. Balt. Police Dep't
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 8, 2019
    ...n.6 (D. Md. Nov. 29, 2011) (Quarles, Jr., J.); Munyiri v. Haduch, 585 F. Supp. 2d 670, 676 (D. Md. 2008) (Davis, J.); Hector v. Weglein, 558 F. Supp. 194, 197-99 (D. Md. 1982) (Kaufman J.). Accordingly, the Eleventh Amendment does not compel the dismissal of plaintiff's Monell claims lodged......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT