Wilcher v. Curley, Civ. No. K-77-440

• Decision Date: 21 July 1981
• Docket Number: K-77-2066.,Civ. No. K-77-440
• Citation: 519 F. Supp. 1
• Parties: Robert Lee WILCHER v. R. D. CURLEY, et al. Louis Harold RICHMAN v. Officer Michael Todd CALLAHAN, et al.
• Court: U.S. District Court — District of Maryland

519 F. Supp. 1

Robert Lee WILCHER v. R. D. CURLEY, et al.

Louis Harold RICHMAN v. Officer Michael Todd CALLAHAN, et al.

Civ. Nos. K-77-440, K-77-2066.

United States District Court, D. Maryland.

June 10, 1980.

On Motion For Reconsideration July 21, 1981.

Robert A. DiCicco, and Beatrice S. Daly, Towson, Md., for plaintiff Wilcher.

Joseph F. Murphy, Jr., Carmina Szunyog, Towson, Md., for defendants Curley, Keene, Minnicks, Nevin, Schraml and Wilson.

Benjamin L. Brown, City Sol., William Hughes, Glenn M. Grossman, G. Denmead Leviness, and Otho M. Thompson, Asst. City Solicitors, Baltimore, Md., for defendant City of Baltimore.

Benjamin L. Brown, City Sol., and Millard S. Rubenstein, Asst. City Sol., Baltimore, Md., for defendant Pomerleau.

Robert C. Verderaime, Baltimore, Md., for defendants Sharp, Kelly and Callahan.

Harold I. Glaser, and Stanley Kantor, Baltimore, Md., for plaintiff Richman.

Benjamin L. Brown, City Sol., James L. Prichard, Glenn M. Grossman, Otho M. Thompson, and J. Warren Eberhardt, Asst. City Solicitors, Baltimore, Md., for defendant Mayor & City Council.

FRANK A. KAUFMAN, Chief Judge.

In these two cases, two of the defendants, the Police Commissioner of Baltimore City (Commissioner) and the Mayor and City Council of Baltimore (City) seek summary judgment in response to the § 1983 claims of the two plaintiffs. In one of these cases, Richman v. Callahan, et al., Civil No. K-77-2066 (Richman), plaintiff seeks compensatory and punitive damages from Baltimore City Police Officer Callahan, the Commissioner, and the City. Richman alleges, inter alia, that Callahan chased Richman without probable cause so to do, discharged his gun twice at Richman while pursuing him, and then restrained and battered Richman with excessive force and malice, and that the Commissioner and the City had failed to train Callahan properly. In Wilcher v. Curley, et al., Civil No. K-77-440, plaintiff, a citizen of Maryland, seeks compensatory and punitive damages from Baltimore City Police Officers Curley, Keene, Minnicks, Nevin, Schraml, Wilson, Blackburn and Markowski of the Baltimore City Police Department (Department), the Commissioner, and the City.¹ Wilcher alleges that the defendant police officers, without provocation or cause, beat Wilcher severely and thereafter unlawfully held him in their custody. Wilcher further alleges that the Commissioner, knowing of the reputation of the defendant officers for brutality, had negligently failed to discharge them.² The City and the Commissioner seek summary judgment³ in both of the two cases.⁴

In Richman, the Commissioner contends that Richman has alleged no facts to show that he (the Commissioner) was directly involved in the incident, that the Commissioner was and is an official of the State of Maryland (State) and not of the City, and that the Eleventh Amendment bars the monetary relief requested in Richman. The City argues in Richman that no city personnel were involved in the incident, that, since Baltimore City police officers are state personnel, the police commissioner is a state and not a city official, that the City is not a person within the meaning of 42 U.S.C. § 1983,⁵ and that the action complained of involved a personal tort by a police officer, and is not actionable under § 1983.

In Wilcher, the Commissioner and the City contend that they are agencies of the state. The Commissioner and the City also contend that the affidavits filed on behalf of the Commissioner and the City disclose that the Commissioner performed his duties in the selection, training, supervision, and discipline of the defendant police officers, and that the Commissioner was not himself involved in the incident.

State/City Issue

The threshold question presented in both of the cases dealt with herein^5A is whether the Commissioner is a state or city official, and whether the Baltimore City Police Department is a state or city agency. All parties seemingly agree that if they are "state" rather than "city" agencies, the Eleventh Amendment bars recovery against them in their official capacities.

In Patterson v. Ramsey, 413 F.Supp. 523 (D.Md.1976), aff'd 552 F.2d 117 (4th Cir. 1977), Judge Young, after examining the statutory scheme governing the Board of School Commissioners of Baltimore City determined (at 530) that

the Board is a hybrid creature. It is established by the City pursuant to power delegated by the State. It receives most of its powers from the City, but is regulated in certain limited operations by the State. It receives its funds from both the City and the State. On balance, however, the Board is an agency of the City rather than an alter ego of the State. As such, it can be sued without offense to the Eleventh Amendment.

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. at 529.

In Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670 (D.Md.1979), in which the question was presented as to whether the City is an "employer" for the purposes of a suit brought against it under 42 U.S.C. § 2000e (Title VII), this Court (at 689-92 & n.51) extensively reviewed the history and the status of the Department. That review and the above set forth facts require the same conclusion herein as to the Department and as to the Commissioner as Judge Young reached with regard to the City School Board in Patterson, namely, that the Department and the Commissioner in his official capacity can be subjected to damage awards without offending the Eleventh Amendment.

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 there was something major amiss in the Department in the time period involved in these cases the City and/or the Commissioner either would or should have known about it, and would or should have taken steps toward cure of the same. As Judge Young suggests in Patterson v. Ramsey, supra, nothing more is required to eliminate the Eleventh Amendment bar. Accordingly, the motions of the City and the Commissioner to dismiss these cases as to them on the grounds that those defendants are state and not city connected must be denied.

Merit Issues

In Richman, the City and the Commissioner assert that the undisputed facts reflect that adequate training and supervision procedures existed at the time of the incident complained of and continue to exist, that those two defendants did not participate in the deprivation, if any, of plaintiff's rights and that therefore they are entitled to summary judgment. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, in response Richman contends that Officer Callahan had used excessive force both before and after the incident complained of herein, and that Callahan had never been disciplined for participating in any of those incidents. Richman also claims that Callahan had a temper problem and was known to have such a problem at the time that he was hired, but that no action was taken either in terms of not hiring him or in terms of placing him in positions in which his temper would not cause a problem....