Overbey v. Mayor

Decision Date21 September 2020
Docket NumberCivil Action No. DKC 17-1793
CourtU.S. District Court — District of Maryland

This case is before the court upon remand from the United States Court of Appeals for the Fourth Circuit. (ECF Nos. 39, 42); Overbey v. Mayor of Baltimore, 930 F.3d 215 (4th Cir. 2019). In order to place the current issues in context, some history is required.

I. Background

Plaintiffs are Ashley Amaris Overbey ("Ms. Overbey") and a local newspaper, the Baltimore Brew ("the Brew"). On June 30, 2017, Plaintiffs filed an amended complaint against the Mayor and City Council of Baltimore ("the City") and the Baltimore City Police Department ("BPD") for damages, for declaratory and injunctive relief under the First Amendment, and for breach of contract and violation of the public policy of the state of Maryland. (ECF No. 5). Although there is no reference to 42 U.S.C. § 1983 in the complaint, it does refer to the action as a "federal civil rights case."1 (ECF No. 5, ¶ 5).

The dispute concerns a "non-disparagement" clause in a settlement agreement between Ms. Overbey and the City. The clause required Plaintiff not to speak to the media or publicly about either the underlying allegations or the settlement process. (ECF No. 11-4, at 6).2 A violation of this clause rendered the claimant liable to the City for damages equal to half of the settlement award. (Id.). The parties settled her claim for $63,000. (Id., at 3, 9). The City subsequently determined that she had violated the non-disparagement clause. (ECF No. 11-6, at 2). When the settlement was ultimately approved, the City provided only $31,500 (instead of the full sum of $63,000) of the agreed payment andretained the rest as "liquidated damages." (ECF No. 11-6, at 2). This suit followed.

In response to the amended complaint, BPD moved to dismiss the complaint for failure to state a claim. (ECF No. 10).3 The City also moved to dismiss or, alternatively for summary judgment. (ECF. No. 11). The district court treated the later as a motion for summary judgment and granted both parties' motions. (ECF Nos. 32, 33); Overbey v. Major & City Couns. Of Balt., No. MJG-17-1793, 2017 WL 5885657 (D.Md. November 29, 2017). As it related to Ms. Overbey's First Amendment claim, the district court reasoned that a waiver of her First Amendment right to speak was "knowing" and "voluntarily given" in signing the settlement, and that enforcement of that waiver was not contrary to public policy. Id. at *6. The court also ruled that the Brew lacked standing to challenge the City's use of a non-disparagement clause. Id. Both Ms. Overbey and the Brew appealed. (ECF No. 34). The Fourth Circuit reversed the summary judgment motion as it related to both parties and remanded the case. Overbey, 930 F.3d at 230.4

On December 16, 2019, Ms. Overbey filed a motion for summary judgment. (ECF No. 61). The City filed an opposition to this motion on January 8, 2020. (ECF No. 62). Finally, Ms. Overbey filed her reply on January 31, 2020. (ECF No. 63).

II. Standard of Review

Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) the Supreme Court explained that in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in a light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962));see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.2005). The mere existence of a "scintilla" of evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.

This court has previously held that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, the court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humpreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).

III. Analysis
A. Baltimore Brew's Claims

The only claim of Baltimore Brew's that the Fourth Circuit allowed to proceed was "its allegation that the City's pervasive use of non-disparagement clauses in settlements with police brutality claimants 'impedes the ability of the press generally, and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions.'" Overbey 930 F.3d at 230. The Baltimore Brew sought "declaratory and injunctive relief" and thus to establish standing it "must establish ongoing or future injury in fact." Id. (citingKenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018)). The court refused to allow the Brew to "rely on prior harms" in seeking injunctive and declaratory relief. Id. (citing Abbot v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018)).

The City's letter to the court on October 2, 2019 points out that it has stopped using the non-disparagement clause that was used in Ms. Oberbey's settlement since "at least" November 2017. (ECF No. 56, at 2). The new clause merely requires the "Releasing Party" to "strictly limit their public comments . . . to the facts alleged in the pleadings and motions filed with the court" instead of the outright "prohibition" against discussing "any opinions, facts or allegations in any way connected to the Litigation or the Occurrence." (ECF No. 56-1). Therefore, as the City rightly argues, "[a]s to the Brew, this case is moot." (ECF No. 56, at 2). During informal discussions, the Brew agreed that, if Bill 19-0409 was enacted by the City Council, its claims would be moot. The bill was enacted, but no stipulation of dismissal was filed. Accordingly, all claims by the Brew will be dismissed.

B. Ms. Overbey's Claims
1. The Void Non-Disparagement Clause

Ms. Overbey moves for summary judgment, contending that there is no dispute of material fact that, in withholding half of the settlement proceeds based on an unenforceable clause in the agreement, the City of Baltimore violated her rights under 42U.S.C. § 1983. As damages, she seeks the money along with prejudgment interest from the date of the settlement agreement.5 The City does not dispute that it withheld the money, does not really contend that the non-disparagement clause is enforceable, but laments that it lost the case on appeal. It does dispute what the proper measure of damages should be.

"Compensatory damages may be recovered in § 1983 actions for proven violations of constitutional right, but only for any actual harms caused by the violation and not for the violation standing alone." Norwood v. Bain, 143 F.3d 843, 855, (4th Cir. 1998) (citing Carey v. Piphus, 435 U.S. 247 (1978); Memphis Cmty. Sch. District v. Stachura, 477 U.S. 299 (1986)), aff'd in relevant part on reh'g per curiam en banc, rev'd on other grounds, 166 F.3d 243, 245 (affirming compensatory damages); see also Knussman v. Maryland, 272 F.3d.625, 639 (4th Cir. 2001) (citing Memphis, 477 U.S. at 307) (presuming an award for "direct pecuniary harms such as loss of income" is available under § 1983 while arguing for recovery for emotional injury as well); Kane v. Lewis, 605 Fed. Appx. 229, 239 (4th Cir. 2015) (citing Carey, 435 U.S. at 254) ("[T]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional right[.]"). "Actual harms resulting from conduct that violatedthe right may include economic loss, physical injury, or emotional distress." Norwood, 143 F.3d at 855 (citing Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985)(emotional distress caused by illegal strip search)); Spell v McDaniel, 824 F.2d 1380 (4th Cir. 1987)(pain and suffering and medical expense cause by police brutality to person in custody); see also Westerfield v. U.S., 483 Fed.Appx. 950, 956 (6th Cir. 2012)(defendant has "right to a fair trial compensable in damages under 42 U.S.C. § 1983 for such injury as he is able to prove—e.g., impairment of reputation, personal humiliation, mental anguish and emotional distress"). In the absence of actual harm, an award of nominal damages is appropriate.

The actual harm alleged here is the loss of half of the settlement proceeds due to the unconstitutional enforcement of the non-disparagement clause. As Ms. Overbey points out, the settlement contract she signed with the City has a severability provision detailing the effect of a void non-disparagement clause on the contract as a whole. (ECF No. 61-1, at 10-11). The applicable provision reads:

14. Severability: In the event that any covenant, condition, or other provision contained in this Agreement is held to be invalid, void, or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other covenant, condition or other provision contained herein. If such

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