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Peggy Lyles, et al.
v.
Montgomery County, Md., et al.
Civil Action No. DKC 2000-2021
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
162 F. Supp.2d 402, 2001 U.S. Dist. Lexis 18950
September 4, 2001, Decided
Deborah K.
Chasanow, United States District Judge.
[*403]
MEMORANDUM OPINION
Two substantive motions are currently
pending and ready for resolution in this employment discrimination case: (1) a
motion to dismiss by Joyce Torchinsky and (2) a motion to dismiss by George
Heinrich. {Fn.1} The issues are fully briefed and the court now rules pursuant
to Local Rule 105.6, no hearing being deemed necessary. For the reasons that
follow, the motions will be granted.
Background
Plaintiffs Peggy Lyles and Noel Mangum have filed an Amended Complaint
against Montgomery County (and its Chief of Police), as well as George Heinrich
and Joyce Torchinsky. The preamble to the complaint states that the
action against Montgomery County is for violation of Title VII, and that the
claims against George Heinrich and Joyce Torchinsky are for violations of 42
U.S.C. § 1983. Counts I, II, and III purport to allege Title VII claims,
presumably solely against Montgomery County. Count IV is a malicious
prosecution claim against Joyce Torchinsky and George Heinrich and Count V is a
tortious interference with employment claim against Torchinsky and Heinrich.
Ms. Lyles worked for the Montgomery County
Department of Recreation in 1980 and transferred to the police department in
October, 1980. Ms. Mangum, initially hired by the Montgomery County Department
of Public Libraries, transferred to the police department in June 1976. Their
complaints arise out of events that happened in the summer and fall of 1997.
Plaintiffs allege that they filed a charge of discrimination with the Maryland
Commission on Human Relations on January 29, 1998, and a right to sue letter
was issued on April 4, 2000. The original complaint was filed July 3, 2000.
Lyles and Magnum claim that they were subjected to
disparate treatment on account of race, through unequal application of
personnel policies regarding computer usage, dress, scheduling and leave.
Apparently, plaintiffs were charged in September and October 1997 with misuse
of their computers at work to conduct unauthorized searches within the police
department computer system. They state that it was a common practice for
employees to use the computer for non-police related activity and that no other
employees faced criminal charges. The charges were, eventually, nolle prossed.
Lt. Henrich, supervisor of the Records
Department, allegedly instigated the criminal case. Joyce Torchinsky,
Plaintiffs' immediate supervisor in the Telephone Reporting Unit, allegedly
actively encouraged and abetted Lt. Heinrich, her immediate superior.
The specific allegations against the
individual defendants are that they:
set into motion a criminal investigation that lead to criminal charges brought against Plaintiffs for alleged criminal "acts" which they themselves have committed, have permitted others to commit and which have been committed by almost everyone in the Division for a variety of purposes, and did not lead to criminal charges being raised. This selective prosecution was committed with the intent to harm the Plaintiffs, to damage [*404] their reputation, to embarrass them in front of their peers, humiliate them, and with the intent to get them fired.
Amended
Complaint, P 27.
Standard of Review
A motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) raises the issue of whether the facts alleged in the complaint
are sufficient to state a claim. Such a motion ought not be granted unless
"it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In so doing, the court
must consider all well-pled allegations in a complaint as true. Albright v. Oliver, 510 U.S. 266, 268, 127
L. Ed. 2d 114, 114 S. Ct. 807 (1994). Moreover, the court is to construe all
allegations liberally in favor of the plaintiff, Scheuer v. Rhodes, 416 U.S.
232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) and must disregard the contrary
allegations of the opposing party. A.S.
Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The Court, however, need
not accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882
F.2d 870, 873 (4th Cir. 1989), nor conclusory factual allegations devoid of any
reference to actual events. United
Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
Analysis
Joyce Torchinsky argues that she cannot be
a defendant in a Title VII claim because she was not named as a respondent in
the administrative proceedings, that the suit against her is untimely and that
she is not a proper defendant for a Title VII claim. Among Plaintiffs'
responses is the assertion that Joyce Torchinsky is not a defendant in the
Title VII counts. Pl. Opp. To Def. Torchinsky's Mot. to Dismiss, at 4.
Accordingly, the arguments made separately by Ms. Torchinsky are moot.
George Heinrich's motion, which is joined
in by Ms. Torchinsky, asserts the court does not have supplemental jurisdiction
over the common law claims against the individual defendants in counts IV and
V, that the claims are barred for failure to give notice under the Local
Government Tort Claims Act, and that the counts IV and V fail to allege
necessary elements of each tort.
State Tort
Claims
With regard to any possible state law tort
claims, the court must consider the preliminary issue of Plaintiffs' failure to
comply with the notice provision of the Local Government Tort Claims Act
(LGTCA). Md. Code Ann., Cts. & Jud. Proc. § 5-304 (1998); see Ashton v.
Brown, 339 Md. 70, 660 A.2d 447, 465 n.19 (1995) (holding that the LGTCA
applies to constitutional torts). Defendants argue that Plaintiffs' state law
tort claims are barred by his failure to provide notice of their claims in accordance
with the LGTCA.
Section 5-304(a) of the LGTCA provides that
"an action for unliquidated damages may not be brought against a local
government or its employees unless the notice of the claim required by this
section is given within 180 days after the injury." Subsection (b) of the
statute provides that in Montgomery County "the notice shall be given in
person or by certified mail, . . . by the claimant or the representative of the
claimant, . . . the County Executive." Cts. & Jud. Proc. § 5-304(b). The notice is a condition precedent to the
right to maintain an action for damages, Grubbs v. Prince George's County, 267
Md. 318, 297 A.2d 754, 755-56 (1972) (citing Cotham v. Board of County Comm'rs,
260 Md. 556, 273 A.2d 115 (1971); Neuenschwander v. Washington Suburban
Sanitary Comm'n, 187 Md. 67, 48 A.2d 593 (1946)), and compliance with the
notice [*405] provision should be alleged in the complaint as a substantive
element of the cause of action. Madore v.
Baltimore County, 34 Md. App. 340, 367 A.2d 54, 56 (1976).
Plaintiffs concede that no notice was given
and assert that none was required because the employees are alleged to have
been acting outside the scope of their authority. The court knows of no
exception to the notice requirement when a person is sued for conduct arising
out of the person's employment. Furthermore, it is precisely because of the
defendants' employment status that Plaintiffs seek to bring a § 1983 action
against them. Plaintiffs do not assert that there is good cause to excuse the
failure. Thus, Plaintiffs are precluded from bringing state tort claims.
42 U.S.C. §
1983
Plaintiffs assert that they have brought
claims under 42 U.S.C. § 1983 against these defendants. (As noted above,
Plaintiffs concede that the Title VII claims are not against the individual
defendants.) While the preamble does refer to § 1983, the counts themselves do
not.
Defendants concede that a malicious
prosecution claim can properly be fashioned as a § 1983 claim, but continue to
argue that Plaintiffs have not stated a proper claim. They maintain, however,
that no tortious interference with employment claim may be brought either under
Maryland law or § 1983.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that
the defendant, while acting under color of state law, violated a federal right.
Presumably the individual defendants, as employees of the Montgomery County
Police Department, can be alleged to be acting under color of state law. The
complaint falters, though, with regard to it he particular federal right
allegedly violated for each count. In count IV, plaintiffs try to assert
a malicious prosecution claim. In Lambert v. Williams, 223 F.3d 257, 261 (4th
Cir. 2000), the Fourth Circuit joined a number of other circuits in holding
that a § 1983 malicious prosecution claim "is properly understood as a
Fourth Amendment claim for unreasonable seizure which incorporates certain
elements of the common law tort." Specifically, the court held that:
"§ 1983 does not empower a plaintiff to bring a claim for malicious
prosecution simpliciter. What is conventionally referred to as a '§ 1983
malicious prosecution' action is nothing more than a § 1983 claim arising from
a Fourth Amendment violation." 223 F.3d at 260. Plaintiffs have not alleged, anywhere in the
Amended Complaint, a seizure under the Fourth Amendment, or articulated how, if
at all, either defendant was personally involved in the seizure. As presently
stated, the complaint fails to state a § 1983 Fourth Amendment claim.
Plaintiffs also have not alleged a viable
federal claim encompassed in their tortious interference with employment claim.
As the analysis in Lambert makes clear, a plaintiff must go beyond stating a
possible state tort to make a § 1983 claim.
Conclusion
For these reasons, the claims against the individual defendants will be
dismissed.
Deborah K. Chasanow
United States District Judge
1. Plaintiffs also
seek leave to file what amounts to a surreply. The court has considered the
matters set forth therein, and still grants Defendants' motions. Accordingly,
Plaintiffs will be granted leave to file the surreply.
ORDER
For the reasons stated in the foregoing
Memorandum Opinion, it is this 4th day of September, 2001, by the United States
District Court for the District of Maryland, ORDERED that:
1. The motions of Joyce Torchinsky and
George Heinrich to dismiss BE, and the same hereby ARE, GRANTED;
2. The claims against Joyce Torchinsky and
George Heinrich BE, and the same hereby ARE, DISMISSED;
3. A scheduling order governing the Title
VII claims against Montgomery County will be entered; and
4. The clerk will transmit copies of the
Memorandum Opinion and this Order to counsel for all parties.
DEBORAH K. CHASANOW
United States District Judge
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