Mealey v. Balt. City Police Dep't

Decision Date15 February 2023
Docket NumberCIVIL 1:21-cv-02332-JRR
PartiesRONALD MEALEY Plaintiff, v. BALTIMORE CITY POLICE DEPARTMENT, et al. Defendants.
CourtU.S. District Court — District of Maryland
MEMORANDUM OPINION

Julie R. Rubin, United States District Judge

This matter comes before the court on Defendants Baltimore Police Department (BPD) and Major John Webb's Motion to Dismiss Plaintiff's Amended Complaint (ECF No 40; the “BPD Motion.”) The court also has before it Sergeant Kurt Roepcke's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 41; the “Roepcke Motion.”) The parties' submissions have been reviewed and no hearing is necessary. Local Rule 105.6 (D. Md. 2021).

BACKGROUND[1]

Plaintiff Ronald Mealey brought this action against Defendants BPD Webb, and Roepcke alleging he was subject to retaliation in violation of 42 U.S.C. § 1983 and Maryland's Declaration of Rights, Article 40, for exercising his right to free speech. (ECF No. 39; First Amended Complaint referred to as “Amended Complaint.”) Plaintiff is currently employed by BPD as the Bomb Squad Commander. Id. ¶ 10. Roepcke is currently employed by BPD as the Administrative Sergeant for BPD Bomb Squad. Id. ¶ 4. Webb is currently employed by BPD as the commanding officer of the Special Operations Section. Id. ¶ 5.

In February 2019, Plaintiff met with Deputy Inspector General Gerald D'Angelo as part of the Baltimore City Office of Inspector General's (“OIG”) investigation into fraud, waste, and abuse by Roepcke and BPD's Marine Unit and Underwater Recovery/Dive Team during the removal of a sunken vessel in the Inner Harbor known as the “Danger Zone.” (ECF No. 39 ¶ 11.) As part of the investigation, Plaintiff provided substantive information detailing Roepcke's waste of taxpayer funds, breaches of BPD policies, and fraudulent procurement of an underwater saw. Id. Specifically, Plaintiff told OIG investigators that Roepcke asked to use a detonation cord in the Danger Zone, despite not being qualified to do so. Id. ¶ 13.

Following issuance of the OIG report in July 2019, BPD Commissioner Harrison referred the matter to the Public Integrity Bureau (“PIB”) for appropriate disciplinary action however, no disciplinary action was taken and PIB cleared Roepcke of wrongdoing. Id. ¶ 14. After issuance of the report, Roepcke became aware that Plaintiff had given multiple statements to the OIG. (ECF No. 39 ¶ 15.) Roepcke informed Webb of the statements Plaintiff gave to the OIG during the investigation into the Danger Zone incident. Id. Subsequently, in retaliation for Plaintiffs participation in the OIG investigation, Roepcke filed two complaints against him. Id. ¶¶ 16, 17. In both cases, the charges were determined to be unfounded. Id. ¶ 17.

In June 2020, the Baltimore City Council voted to defund the BPD Marine Unit, and Roepcke was left without an assignment. (ECF No. 39 ¶ 18.) On July 5, 2020, in contravention of BPD policy, Roepcke was named Administrative Sergeant of the Bomb Squad despite lacking Bomb Technician credentials. Id. ¶¶ 19, 20. Once Roepcke was in this position, he pursued application to attend the FBI's Hazardous Devices School (“HDS”). Id. ¶ 22. To do so, he needed to be nominated by a BPD HDS graduate and Plaintiff had to sign his application as the Bomb Squad Commander. Id. On July 21, 2020, Plaintiff emailed his chain of command, Lt. Klein, regarding his concerns that Roepcke was unsuitable for the HDS. (ECF No. 39 ¶ 23.) Lt. Klein ignored Plaintiff's protestations and instructed him to go forward with Roepcke's application. Id. Still concerned, Plaintiff voiced to Webb his belief that Roepcke was not a suitable candidate for the HDS, but Plaintiff signed the application under Webb's threat of demotion should he fail to do so. Id. ¶ 24.

Subsequently, because he viewed the matter as one of public concern, Plaintiff contacted the FBI coordinator. Id. ¶ 25. The FBI coordinator instructed Plaintiff to document his concerns by letter to Sergeant John Adamek at the National Bomb Squad Commanders Advisory Board. Id. On September 2, 2020, Roepcke received a letter from the FBI terminating his HDS application pursuant to the National Guidelines for Bomb Technicians. Id. ¶ 30.

Thereafter, Roepcke filed departmental charges and complaint reports against Plaintiff. (ECF No. 39 ¶¶ 33, 39, 46.) In response, Plaintiff reported to Webb that Roepcke was retaliating against him. Id. ¶¶ 31, 35, 43. On October 19, 2020, Roepcke, or someone acting on his behalf, cut the lock to a secured room containing Plaintiff's colt service rifle. Id. ¶ 36. Roepcke, or his delegate, took the service rifle and left it unsecured in the office in an attempt to have Plaintiff charged. Id. On February 15, 2021, Plaintiff was electrocuted by contact with a con-ex box in the area previously utilized by the Marine Unit. Id. ¶ 44. Plaintiff learned that at the direction of Roepcke, Officer Brian Wassum had improperly wired the box. Id. In addition, on August 25, 2021, Webb refused to consider Plaintiff as a driver of the command vehicle when a vacancy for the position arose. Id. ¶ 50. Plaintiff alleges that the refusal to consider him for the driver position was in direct retaliation for Plaintiff's “whistleblowing” activities and his role in rejection of Roepcke's HDS application. Id.

Convinced that Roepcke was retaliating against him, and that Webb and other command staff were not protecting him, Plaintiff reached out to the OIG. (ECF No. 39 ¶ 57.) The Deputy Inspector investigating Plaintiff's claims contacted BPD Chief of Staff about the complaints; within one week, BPD advised the Bomb Squad that it was no longer a full-time, stand-alone unit, and that all Bomb Squad officers would be reassigned to the Mobile Metro Unit (“MMU”). Id. ¶ 59. Plaintiff alleges that the changes implemented by BPD were in response to the mounting accusations against Roepcke and to exercise more control over Plaintiff. Id. ¶ 62.[2]

Plaintiff alleges that his participation in the OIG investigation and/or his objections to Roepcke's HDS application were exercises of his First Amendment right to free speech, and that Roepcke's actions toward Plaintiff were retaliatory and violated his First Amendment right to free speech as well as BPD's Whistleblower Protection Policy No. 1792. Id. ¶¶ 63, 64. Plaintiff further alleges that “BPD, by and through its Command Staff, including but not limited to Major Webb, have violated Officer Mealey's First Amendment Protections and continue to allow Sgt. Roepcke to take improper retaliatory actions.” (ECF No. 39 ¶ 65.) BPD's anti-retaliation/whistleblower policy imposes on BPD officers a duty to report misconduct and to intervene to prevent or stop misconduct, and strictly prohibits retaliation against, or interference with, a BPD member for any reason, including those who report, or seek to report, violations of law or BPD policy. Id. ¶ 47.[3]Despite the whistleblower policy, Plaintiff alleges BPD has an “official policy or custom of unfettered retaliation against whistleblowers and/or officers that exercise their First Amendment Rights.” Id. ¶ 48.

On February 7, 2022, Plaintiff Mealey filed an Amended Complaint against Defendants BPD, Webb, and Roepcke, which sets forth two counts against all Defendants: (I) First Amendment Retaliation - Freedom of Speech 42 U.S.C. § 1983; and (II) Freedom of Speech, Retaliation - Maryland Declaration of Rights, Article 40. Plaintiff sues Defendants Roepcke and Webb in their individual and official capacities. Id. ¶¶ 4-5. Plaintiff seeks: (i) no less than $800,000 in non-economic damages; (ii) alternatively, if compensatory damages are not awarded, an award of nominal damages; (iii) costs and reasonable attorney's fees; (iv) punitive damages of $1,000,0000; and (v) any other relief the court deems just and proper. (ECF No. 39, pp. 24-26.)

Defendants move to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 40 and 41.) Defendants argue that sovereign immunity deprives the court of subject matter jurisdiction over the state law claim-Count II- against BPD and the officers in their official capacities. (ECF No. 40-1, pp. 12-13; ECF No. 411, p. 17.) Moreover, Roepcke argues the claims against him in his official capacity should be dismissed as duplicative because an action against him in his official capacity is an action against BPD. (ECF No. 41-1, p. 17.) Finally, Defendants argue that Plaintiff's federal claim-Count I- fails to state a plausible claim. (ECF No. 40-1, pp. 5, 13; ECF No. 41-1, p. 2.)

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1)

Defendants assert that the court lacks subject matter jurisdiction over Count II because Plaintiff's claim is barred by state sovereign immunity. (ECF No. 40-1, pp. 12-13; ECF No. 411, p 17.)

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of subject matter jurisdiction.” Barnett v. United States, 193 F.Supp.3d 515, 518 (D. Md. 2016).

“The plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction.” Mayor & City Council of Balt. v Trump, 416 F.Supp.3d 452, 479 (D. Md. 2019). Subject matter jurisdiction challenges may proceed in two ways: a facial challenge or a factual challenge. Id. A facial challenge asserts “that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction.” Id. A factual challenge asserts “that the jurisdictional allegations of the complaint [are] not true.” Id. (quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). “In a facial challenge, ‘the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts...

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