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KENNETH C. ROSSIGNOL, et al. v. RICHARD VOORHAAR, et al.
Civil Action WMN-99-3302
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
199 F. Supp. 2d 279
MEMORANDUM
Before the Court are: Plaintiffs' Motion for
Summary Judgment on Liability Issues (Paper No. 69); Cross-Motion for Summary
Judgment filed by Defendants Doolan, Long, Merican, Myers, Willenborg, and
Young (Paper No. 73); Defendant Fritz's Cross-Motion for Summary Judgment
(Paper No. 74); Cross-Motion for Summary Judgment filed by Defendants Voorhaar,
Alioto, and Board of County Commissioners for St. Mary's County ("the
County") (Paper No. 75). n1 The motions have been exhaustively briefed and
are ripe for decision. Upon review of the pleadings and applicable case law,
the Court determines that no hearing is necessary (Local Rule 105.6) and that:
all Defendants will be granted summary judgment as to Counts 1-3, which assert
causes of action under 42 U.S.C. § 1983, and the remaining state law claims
(Counts 4-6) will be dismissed for lack of jurisdiction.
I. FACTUAL BACKGROUND
The facts of this unusual case
are, for the most part, undisputed. Plaintiff is the publisher of a weekly
community newspaper called St. Mary's Today. Defendants include St. Mary's
County Sheriff Richard Voorhaar, seven members of the Sheriff's Department, n2
St. Mary's County State's Attorney Richard Fritz, and the county [*282] Board
of Commissioners. Late on the night of November 2, 1998, and in the early
morning hours of November 3, a large number of St. Mary's Today newspapers were
purchased en masse by several of the Sheriff's Department Defendants, among
other people, just hours before the local election, in which Defendants
Voorhaar and Fritz were candidates. Before describing the events of that night,
however, the Court will provide some background information about the parties.
In 1990, Plaintiff Kenneth
Rossignol began publishing St. Mary's Today, a weekly community newspaper
serving St. Mary's County and two adjoining counties. n3 In the autumn of 1998,
Plaintiff printed n4 approximately 6,500 copies per issue, most of which were
sold in St. Mary's County. According to Plaintiff, about 2,600 newspapers were
sold in retail stores in St. Mary's County, and about 1,100 were sold from
newsboxes. The remaining newspapers were sold either to subscribers or at
locations outside of St. Mary's County. Each issue of St. Mary's Today sold for
75 cents.
There is no question that
articles appearing in St. Mary's Today have tended to generate a great deal of
controversy. The paper often took a sharply
critical stance toward public officials, including members of the St.
Mary's County Sheriff's Department and the State's Attorney. According to
Plaintiff, the paper's brand of journalism is "hard-hitting" and
not-infrequently controversial." Pl.'s Brief at 4. Defendants, however,
refer to the paper as "unsavory," "scathing," and
"outright lies." See, e.g., Merican Response to Interrogatory 1;
Willenborg Dep. at 37-39; Fritz Dep. at 33.
Defendants have described in particular how they were portrayed by the
newspaper. According to Defendant Fritz, the paper had referred to Defendant
Doolan as a "drunk," and Defendant Long as a "child abuser"
and a "lazy" officer. See, Fritz Dep. at 126-28. Defendant Willenborg
claims that St. Mary's Today prints lies about his family, see Willenborg Dep
at 37-39, 222; Defendant Merican recalled being referred to as a "shoeshine
boy," as well as other insults. See, Merican Dep. at 27-30. Defendant
Voorhaar reports that the paper has "written a lot of things about me for
a long period of time," and that eventually he stopped reading St. Mary's
Today. See, Voorhaar Dep. at 21. Plaintiff does not dispute this testimony,
although he points out that at times St. Mary's Today has printed favorable
coverage of the Sheriff's office. See Pl.'s Brief at 7.
Tuesday, November 3, 1998 was
election day in St. Mary's County. Running for office that day were, among
others, Sheriff Voorhaar, who was running for re-election as Sheriff, and
Richard Fritz, who was running for State's Attorney for St. Mary's County. It
was also the day that St. Mary's Today was scheduled to come out with its
weekly issue. About a week before election day, some of the Sheriff's
Department Defendants began to construct a plan to buy up a large number of St.
Mary's Today papers on the night before the election, when the papers were
scheduled to be delivered to stores and newsboxes. Defendant Willenborg was
[*283] the first to come up with the idea. Shortly thereafter, Defendants Long,
Merican, and Doolan agreed to participate in the plan. Defendant Willenborg has
also testified that there was "passing conversation" about the plan
with people at work, as people were "passing in the hallway."
Willenborg Dep. at 211. Sheriff Voorhaar, who did not participate in the mass
purchase, has stated that he knew about the plan about a week before election
day, and had communicated his support for the idea. n5 See, Voorhaar
Dep. at 112.
There is little dispute about
the planning of the mass purchase. Defendant Willenborg mentioned the idea to
two civilians after a Fritz campaign meeting at Fritz's house. The civilians
agreed to participate in the purchase, and suggested that they meet at the home
of one of the civilians on the Sunday prior to the election, to plan which
stores each would visit to make the purchases. Present at that meeting were
Defendants Willenborg, Doolan, Merican, and Alioto, who were all off-duty,
along with several civilians. Participants
agreed that the members of the Sheriff's Department should "not
wear anything that resembled the police," see Doolan Dep. at 65, and that
they should drive private vehicles. Furthermore, they agreed to obtain receipts
for the store-bought papers, and to videotape the newsbox purchases to document
the fact that they had paid for each paper. See, e.g., Merican Dep. at 43.
Defendants also testify that they agreed that if any store clerks refused to sell
the papers, they would simply leave and not buy them. See, Merican Dep. at 42;
Doolan Dep. at 115. Also at the meeting, Defendant Willenborg handed out a list
of the locations of newsboxes and stores selling St. Mary's Today, which had
been compiled by Defendant Long when he "drove around St. Mary's County
one night checking places that sold St. Mary's Today." See, Willenborg
Dep. at 199-200.
To fund the mass purchase,
Defendants collected money from various sources. Sheriff Voorhaar contributed
$500. Voorhaar Dep. at 41. Defendant Doolan gave $75. Doolan Dep. at 89.
Defendant Fritz contributed $500, although he testified that he was merely
passing along a contribution from his brother. Fritz Dep. at 47. One local
resident contributed $2,500; others contributed smaller amounts. See,
Willenborg Dep. at 146-48. Plaintiff has neither argued nor submitted evidence
that the contributions came from any campaign or public funds.
At approximately 11:00 p.m. on
November 2, 1998, Defendants Doolan, Merican, Young, Long, Myers, Willenborg,
and Fritz met at Defendant Long's home. All six Sheriff's deputies were
off-duty throughout the night. n6 Stickers depicting a copy of St.
Mary's Today going into a trash can were handed out, and some of the defendants
wore them throughout the night. n7 See, e.g. Willenborg Dep. at 71. At this
meeting, some Defendants expressed concerns about the legality of their plan
and asked Defendant Fritz for his opinion. Defendant Fritz suggested that they
obtain receipts for their purchases, but otherwise advised the others that he
believed Defendants had a right to purchase as many papers as they desired.
See, Doolan Dep. at 270; Fritz Dep. at 17. After Defendant Fritz was dropped
off at home, the other Defendants divided into [*284] two groups to carry out
the purchases (Merican, Doolan, and Young; and Willenborg, Long, and Myers).
As
planned, Defendants collected receipts from stores and videotaped themselves
buying papers from newsboxes. At about 2:00 a.m., as Plaintiff was attempting
to repair a jammed newsbox, he noticed that many of his newsboxes were empty.
Plaintiff then began to drive around trying to replenish the supply of St.
Mary's Today in various locations. Defendants saw Plaintiff's vehicle and began following him, purchasing many of
the papers that Plaintiff had attempted to restock. See, Willenborg Dep. at 58.
The purchases continued throughout the night, until about 7:00 a.m. on the
morning of November 3, 1998. n8
Plaintiff alleges that
Defendants bought 1,379 newspapers during the night. See, Def. Doolan, et al.
Reply at Exh. 19 (Plaintiff's listing of papers "seized"). Defendants
do not dispute this calculation. Plaintiff also claims, however, that
approximately 300 papers were taken without payment from various stores that
were not yet open for business when Defendants arrived. See, Pl.'s Brief at
Exh. 11, 14 (Pl.'s responses to interrogatories). Defendants deny that any
papers were taken without payment. It is undisputed, however, that the papers
in Defendants' possession on the morning of November 3, 1998, were bundled and
placed in a barn on property owned, at least in part, by Defendant Fritz's
family.
On
the videotape of the newsboxes purchases, as well as in testimony prepared for
this lawsuit, Defendants have expressed their purposes for executing the mass
purchase of St. Mary's Today. Many Defendants state that they participated in
the mass purchase because they had expected that the election day edition of
St. Mary's Today would print something highly critical of Defendant Fritz, who
was running for the office of State's Attorney and whom many Defendants
supported. See, e.g., Doolan Dep. at 50 ("It is my opinion that . . .
[Plaintiff was] out to slander Mr. Fritz to keep him from becoming the State's
Attorney"); Voorhaar Response to Interrogatory, Pl.'s Brief at Exh. 19
(stating that he expected Plaintiff to "smear" Fritz, "thereby
depriving him of an opportunity to defend himself prior to the election). n9 At
least one Defendant also suspected the paper would publish a negative story
about Sheriff Voorhaar, who was running for re-election. See, Willenborg Dep.
at 219. Several Defendants also described the mass purchase as a
"protest," or as an attempt to anger or "one up" Plaintiff.
See, e.g., Doolan Response to Interrogatories (Def.'s Exh. 10); Merican Dep. at
32, 99; Long Response to Interrogatories (Pl.'s Exh. 16).
Defendants' predictions that the
election day edition of St. Mary's Today
would run negative stories about Fritz and Voorhaar were realized. In
large font, the front-page headline declared, "Fritz Guilty of Rape."
The article reported that in 1965, Defendant Fritz had pleaded guilty to carnal
knowledge of a minor-a conviction which Fritz does not deny. n10 Another St. [*285]
Mary's Today election day article, entitled "Woman Supervisor Ordered Him
to Have Sex, Says Cop," criticized Sheriff Voorhaar's handling of an
alleged sexual harassment complaint.
In 1999, Plaintiff filed a six
count Complaint in this Court. Counts 1-3 are brought pursuant to 42 U.S.C. §
1983 and assert violations of Plaintiff's First Amendment rights (Count 1),
Fourth Amendment rights (Count 2), and Fourteenth Amendment right to due
process (Count 3). Count 4 alleges violations of corresponding rights guaranteed
by the Maryland Declaration of Rights (Count 4). The Complaint also alleges the
common law violations of tortious interference with business relations (Count
5) and civil conspiracy (Count 6). Plaintiff has moved for summary
judgment as to liability on all counts. Defendants have also moved for summary
judgment as to all counts.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is no genuine issue as to
any material fact and the moving party is entitled to summary judgment as a
matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party seeking summary
judgment bears the initial responsibility of informing the court of the basis
of its motion and identifying the portions of the opposing party's case which
it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is entitled to
have "all reasonable inferences . . . drawn in its respective favor."
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir. 1987).
If
the movant demonstrates that there is no genuine issue of material fact and
that the movant is entitled to summary judgment as a matter of law, the
non-moving party must, in order to withstand the motion for summary judgment,
produce sufficient evidence in the form of depositions, affidavits or other
documentation which demonstrates that a triable issue of fact exists for trial.
Celotex, 477 U.S. at 324. Unsupported speculation is insufficient to defeat a
motion for summary judgment. Felty, 818 F.2d at 1128 (citing Ash v. United
Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986)).
When both parties file motions for summary judgment, the court applies
the same standards of review. Taft
Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991); ITCO Corp.
v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) ("The court is
not permitted to resolve genuine issues of material facts on a motion for
summary judgment--even where ... both parties have filed cross motions for summary
judgment")(emphasis omitted), cert. denied, 469 U.S. 1215, 84 L. Ed. 2d
337, 105 S. Ct. 1191 (1985). The role of the court is to "rule on each
party's motion on an individual and separate basis, determining, in each case,
whether a judgment may be entered in accordance with the Rule 56
standard." Towne Mgmt. Corp. v. Hartford Acc. and Indem. Co., 627 F. Supp.
170, 172 (D. Md. 1985)(quoting Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d § 2720 (2d ed. 1993)). See also Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F. Supp. 352,
356 (D. Md. 1991). "Cross-motions for summary judgment do not automatically
empower the court to dispense with the determination whether questions of
material fact exist." Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983), cert. denied, 464 U.S.
805, 78 L. Ed. 2d 72, 104 S. Ct. 53 (1983). "Rather, the court must
evaluate each party's [*286] motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is
under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1391 (Fed. Cir. 1987). Both motions may be denied. See Shook v. United States, 713 F.2d 662, 665
(11th Cir. 1983).
III. DISCUSSION
To prevail in an action under 42
U.S.C. § 1983, a plaintiff must demonstrate that defendants acted "under
color of state law" to deprive the plaintiff of a right secured by the
Constitution or laws of the United States. See, West v. Atkins, 487 U.S. 42, 48, 101 L. Ed.
2d 40, 108 S. Ct. 2250 (1988). An individual acts under color of state law when
exercising or misusing power "possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state
law." United States v. Classic, 313 U.S. 299, 326, 85 L. Ed. 1368, 61 S.
Ct. 1031 (1941). A state employee acts under color of state law while acting in
his official capacity or while exercising his responsibilities pursuant to
state law. See, Parratt v. Taylor, 451
U.S. 527, 535-36, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). See also Monroe v. Pape, 365 U.S. 167, 172, 5 L. Ed.
2d 492, 81 S. Ct. 473 (1961), overruled on other grounds by Monell v. Dept. of Social Services, 436
U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
In contrast, the "acts of
police officers in the ambit of their personal, private pursuits fall outside
of 42 U.S.C. § 1983." Revene v. Charles County Commissioners, 882
F.2d 870, 872 (4th Cir. 1989) (citations omitted). A state officer's private
conduct, no matter how wrongful, is not actionable under § 1983. See, Barna v. Perth Amboy, 42 F.3d 809, 816 (3rd
Cir. 1994) (stating that "a police officer's purely private acts which are
not furthered by any actual or purported state authority are not acts under
color of state law.").
When determining whether a defendant acted under color of state law,
"the nature of the act performed is controlling." Revene, 882 F.2d at
872 (citing Monroe v. Pape at 184-87). Whether or not the defendant officers
were on duty, wearing a uniform, driving a patrol car, or exhibiting other
indicia of state authority, may inform the inquiry but is not dispositive of
the issue. See, Robinson v. Davis, 447 F.2d 753, 759 (4th Cir. 1971). Rather,
the reviewing court must examine the nature and circumstances of the
defendant's conduct to determine whether it is "fairly attributable to the
state." Revene at 872 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 73 L.
Ed. 2d 418, 102 S. Ct. 2764 (1982)).
In
support of his motion for summary judgment, Plaintiff first argues that the Defendants who actually purchased the
newspapers (hereinafter, "the Purchasing Defendants") acted under
color of state law because of the close "nexus" between the speech
they sought to suppress and their conduct as public officials. In other words,
Plaintiff contends that the Purchasing Defendants' conduct was directly related
to their performance of official duties, because it was allegedly carried out
in retaliation for Plaintiff's outspoken criticism of that performance.
Plaintiff's argument misses the mark for two reasons. First, it does not
apply to those Purchasing Defendants whose expressed purpose was not to
retaliate for Plaintiff's critique of their job performance, but rather to
minimize negative press about Candidate Fritz on the day of the election. More
importantly, Plaintiff's argument misapplies the law as it relates to § 1983's
"under color of state law" requirement. In emphasizing the
"nexus" between Defendants' conduct and their positions [*287] as
state officials, Plaintiff relies upon
cases in which the defendants were private citizens, not state officials, and
the inquiry was whether their actions could be treated as those of the State
itself. See, e.g., Mentavlos v.
Anderson, 249 F.3d 301, 310 (4th Cir. 2001), cert. denied, 151 L. Ed. 2d 264,
122 S. Ct. 349 (2001); Brentwood Academy v. Tennessee Secondary School Athletic
Ass'n, 531 U.S. 288, 148 L. Ed. 2d 807, 121 S. Ct. 924 (2001). Here, however,
the Purchasing Defendants are unquestionably state officials, and the inquiry
is whether "the actions complained of were committed while the defendants
were purporting to act under the authority vested in them by the state, or were
otherwise made possible because of the privileges of their employment."
Hughes v. Halifax County School Board, 855 F.2d 183, 186-87 (4th Cir. 1988);
see also United States v. Classic, 313
U.S. 299, 326, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941) (enunciating traditional
"under color of state law" standard).
The fact that Defendants'
conduct was related to or motivated by their state employment does not
transform that conduct into state action under the standards set forth above.
Cases cited by Plaintiff to support the proposition that it does are
distinguishable, because in each of those cases the defendant was found to have
acted under color of state law, independently of his or her motive for acting.
n11 See, e.g., United States v.
Causey, 183 F.3d 407, 415-16 (5th Cir. 1999), cert. denied, 530 U.S. 1277, 147
L. Ed. 2d 1010, 120 S. Ct. 2747 (2000) (where defendant police officer
participated in the murder of a woman who had filed a complaint against him,
defendant's "status as a police officer put him in the unique position to
'handle the thirty' [police code for murder] and thus offer protection to [the
murderer] from the consequences of the murder"); Dang Vang v. Vang Xiong
X. Toyed, 944 F.2d 476 (9th Cir. 1991) (finding that jury reasonably could have
concluded that defendant used his government position to exert influence and
physical control over plaintiffs in order to sexually assault them); ACLU v.
Wicomico County, 999 F.2d 780 (4th Cir. 1993) (prison officials acted under
color of state law in barring plaintiff from visiting inmates to document their
complaints). n12
Perhaps recognizing the weakness of his first argument, Plaintiff later
submitted to the Court additional factual evidence that allegedly demonstrates
that the Purchasing Defendants used their official authority to carry out their
plan. n13 Viewed in the light most favorable to Plaintiff, these additional
facts include the following: (1) at least two of the Purchasing Defendants
[*288]carried their service weapons during the night; (2) Defendant Merican
wore a Fraternal Order of Police sweatshirt, which a store clerk recognized as
bearing a police symbol; (3) Defendants Willenborg and Long used Sheriff's
office pagers; (4) many of the store clerks recognized Defendants as law
enforcement officers from previous contacts; (5) one store clerk was
intimidated by Defendants into selling them his supply of the papers; (6) one
customer was prevented from buying a copy of St. Mary's Today and recognized
Defendants as police officers. See, Pl.'s Separate Statement of Additional
Facts, Paper No. 76, and attachments thereto.
The officers' firearms, if
visible, certainly convey state authority. So does a police symbol on an item
of clothing. Plaintiff, however, provides no evidence that these indicia of
authority had the effect of intimidating or coercing store clerks into selling
newspapers they otherwise would not sell. n14 Cf. Robinson v. Davis, 447 F.2d at 759
(observing that outward indicia of authority-or lack thereof-are not
dispositive in the "under color of state law" inquiry). The customer
deposed by Plaintiff testified that he was not allowed to purchase the
newspaper because Defendant Merican leaned on the stack of papers he (Defendant
Merican) was purchasing and said, "they're already sold." Hester Dep.
at 10. Although the customer was able to deduce that Defendant Merican was a
police officer, there is no evidence that Defendant Merican used his authority
as such to prevent the customer from making his purchase.
The
one clerk who testified to being intimidated by Defendants, Justin Van Patten,
admitted that his fears stemmed from his history of run-ins with law
enforcement (though not with the Defendants who bought the papers from him) and
his criminal record. See, Van Patten Dep. at 13, 45-46. Van Patten recognized
Defendants as Sheriff's deputies when they entered the store, in part because
he had "seen them around in the uniforms" and because he recognized
the Maryland police symbol on the sweatshirt of one Defendant. See, Van Patten
Dep. at 18. Nowhere in his testimony, however, does Van Patten indicate that
Defendants displayed their weapons, identified themselves as Sheriff's
deputies, invoked their authority as such, or used their law enforcement powers
to obtain the newspapers. The Court concludes that the subjective feelings of
this one witness, without evidence that Defendants purported to exercise their
police authority over him, are not sufficient to preclude summary judgment for
the Purchasing Defendants. n15
Having concluded that Defendants
Willenborg, Doolan, Long, Young, Myers, and Merican are entitled to summary
judgment on the § 1983 claims, the Court now turns to the ramifications of this
conclusion for other Defendants. First, Plaintiffs claim that Defendant Fritz,
who was a private citizen at the time of the mass purchase of St. Mary's Today,
should be liable as a joint actor or co-conspirator with the Purchasing
Defendants. See, Street v. Surdyka,
492 F.2d 368, 374 (4th Cir. 1974) (observing [*289] that "even private
citizens can take on the color of state law when they participate in police
action"). Since this Court has found that the mass purchase constituted
private conduct not executed under color of state law, there was no
"police action" with which Defendant Fritz could have participated.
Therefore, he too is entitled to summary judgment on the § 1983 claims.
Under the same reasoning, Defendant Voorhaar cannot be held liable as a
joint actor, co-conspirator, or supervisor of the Purchasing Defendants. Nor
can he be found independently liable
under § 1983. The evidence of Sheriff Voorhaar's involvement-namely, that he
contributed money, communicated his approval of the plan, and personally bought
several newspapers on the morning of the election-does nothing to demonstrate
that he acted under color of state law. There is no evidence that Sheriff
Voorhaar directed or ordered Defendants to carry out the mass purchase, nor
that he had reason to believe it constituted state action. Rather, the Sheriff
contributed to and supported the private pursuits of his deputies. n16
Defendant Alioto is also
entitled to summary judgment. Defendant Alioto was on patrol duty the night of
November 2, 1998, but did not accompany the Purchasing Defendants as they
bought the papers. Defendant Alioto met with Defendant Long in a parking lot at
one point during the night to discuss an ongoing automobile theft
investigation. See, Willenborg Dep. at 82, 86; Alioto Dep. at 37-41. Plaintiff
has offered his speculation that, during the night in question, he heard
Defendant Alioto make numerous radio calls, allegedly assisting the Purchasing
Defendants with logistics. See, Rossignol Dep. at 102. Defendant Alioto has
countered with his testimony that his radio calls were that of a
"normal" evening on patrol, see Alioto Dep. at 32-36, and with the
testimony of other Defendants, stating that they did not have access to
Sheriff's radio transmissions from the private vehicles they used to make the
purchases. See, Willenborg Dep. at 189. Based on these facts, Plaintiff simply
has not offered sufficient evidence to preclude entry of summary judgment in
favor of Defendant Alioto.
Finally, having disposed of all
of Plaintiff's federal claims, the Court finds that it has no independent basis
for jurisdiction over Plaintiff's pendent state claims. Therefore,
Counts 4-6 of the Complaint will be dismissed for lack of subject matter
jurisdiction. See, 28 U.S.C. § 1367. In so doing, the Court does not intend to
suggest that Plaintiff's state law claims cannot withstand a similar motion if
brought in a state proceeding.
IV. CONCLUSION
For
the foregoing reasons, the Court will grant summary judgment to all Defendants
as to Counts 1-3 of the Complaint. Counts 4-6 will be dismissed without
prejudice. A separate order consistent with this memorandum will issue.
William M. Nickerson
United States District Judge
[*290]
Dated: February 21st, 2002
ORDER
Pursuant to the foregoing memorandum, and for the reasons stated
therein, IT IS this 21st day of February, 2002, by the United States District
Court for the District of Maryland, hereby ORDERED:
1.
That Defendants Doolan, Long, Merican, Myers, Willenborg, and Young's Motion
For Leave to File Reply Memorandum in Excess of Page Limit (Paper No. 78) is
hereby GRANTED;
2.
That Plaintiff's Motion for Summary Judgment on Liability Issues (Paper No. 69)
is hereby DENIED;
3.
That Defendants Doolan, Long, Merican, Myers, Willenborg, and Young's Motion
for Summary Judgment (Paper No. 73) is hereby GRANTED as to Counts 1-3;
4.
That Defendant Fritz's Motion for Summary Judgment (Paper No. 74) is hereby
GRANTED as to Counts 1-3;
5.
That Defendants Voorhaar, Alioto, and Board of County Commissioners for St.
Mary's County's Motion for Summary Judgment (Paper No. 75) is hereby GRANTED as
to Counts 1-3;
6.
That Counts 4-6 of the Complaint are hereby DISMISSED without prejudice;
7.
That this case is hereby CLOSED;
8.
That any and all prior rulings made by this Court disposing of any claims
against any parties are incorporated by reference herein and this order shall
be deemed to be a final judgment within the meaning of Fed. R. Civ. P. 58; and
9.
That the Clerk of the Court shall mail or transmit copies of the foregoing
memorandum and this order to all counsel of record.
William M. Nickerson
United States District Judge
FOOTNOTES:
n1 Defendants Doolan, Long,
Merican, Myers, Willenborg, and Young also filed a motion for leave to file
their reply memorandum in excess of the page limit (Paper No. 78). The motion
will be granted.
n2 The Sheriff's Department
Defendants, and their ranks as of November 2, 1998, are as follows: Steven
Doolan (Captain); Edward Willenborg (Corporal, Narcotics Section); Michael
Merican (Sergeant, Internal Affairs Division); Lyle Long (Sergeant, Criminal
Investigations Unit); Steven Myers (Deputy First Class); Harold Young (Deputy
First Class); and Daniel Alioto (Deputy First Class).
n3 Rossignol publishes the
paper through the Island Publishing Company, which is also named as a plaintiff
in this action. Rossignol notes that he brought suit on behalf of the company
in order to avoid argument that the proper party had not instituted the action.
Defendants assert that Island Publishing is not a proper party. The disposition
of this case in favor of Defendants, however, effectively moots the issue. In
light of this, for the purposes of this memorandum, the Court will ignore the
presence of Island Publishing Company as a plaintiff.
n4 Plaintiff contracted with
the Washington Times to print the newspapers.
n5 Sheriff Voorhaar did
independently purchase some copies of St. Mary's Today on the night before the
election, but the number is disputed. See, Voorhaar Dep. at 58 (stating he
bought four copies); Doolan Dep. at 192 (stating that Voorhaar had told him he
bought 15 to 20 copies).
n6 One Defendant in this
case, Deputy Alioto, was on duty that night, but did not accompany other
Defendants on their purchases.
n7 The stickers were
designed and produced by a civilian who is not a party to this lawsuit.
n8 Later that day, both
Defendant Voorhaar and Defendant Fritz won election to their respective offices.
n9 Not long before the 1998
election, Plaintiff began operating an "on line" version of St.
Mary's Today, which apparently previewed the forthcoming print edition.
Defendants deny that they saw the website prior to the election, but instead
based their predictions of the paper's content on their "experience with
previous St. Mary's Today election editions." See, e.g., Doolan Dep. at
50-51.
n10 The conviction had
already been made public by another newspaper four years earlier, when Fritz
had also run (unsuccessfully) for State's Attorney.
n11 In making his argument,
Plaintiff relies heavily on Coming Up v. San Francisco, 857 F. Supp. 711 (N.D.
Cal. 1994), which held that, where the police chief ordered officers to
confiscate copies of free newspaper that criticized his conduct, and officers
did so while on duty and driving a police vehicle, the police chief and
officers were precluded from obtaining qualified immunity at summary judgment. The case is
distinguishable on its facts and does not provide authoritative guidance for
this Court.
n12 Plaintiff also falters
when he relies on the seminal case New York Times v. Sullivan, 376 U.S. 254, 11
L. Ed. 2d 686, 84 S. Ct. 710 (1964) to support his position. That decision,
which held that a public official may not recover damages for defamatory
statements without showing actual malice, in no way stands for the proposition,
as Plaintiff would have it, that "a government official's suppression of
[speech that is critical of his conduct] necessarily bears a sufficiently close
nexus to his role as a public official and performance of his duties to warrant
the imposition of liability under Section 1983." Pl.'s Brief at 37-38.
n13 Plaintiff explains that
he does not rely on these additional facts in support of his own motion for
summary judgment, but rather contends that they preclude the entry of summary
judgment for Defendants.
n14 Plaintiff also fails to provide evidence that the office
pagers enabled Defendants to carry out their purchases. Even if they
communicated with them during the night, Defendants had already planned their
endeavor using the lists of newspaper locations, and had divided into groups to
complete the purchases.
n15 Plaintiff also asserts
that store clerk Beverly Burnett was pressured or coerced into selling all her
copies of St. Mary's Today. See, Pl.'s Supp. Facts at 4. Ms. Burnett's
deposition, however, reflects that she did not identify the customer as a law
enforcement officer, nor did she feel intimidated into selling the papers, nor
did the customer become angry or rude with her. Burnett Dep. at 27-29.
n16 For the same reasons,
the Sheriff was not acting as a policy maker when he approved of and
contributed to the mass purchase. Therefore, Plaintiff's claim of § 1983
municipal liability against St. Mary's County must fail, as it relied on
allegations that Defendant Voorhaar, as the "final policy maker" for
the Sheriff's office, "not only ratified the unconstitutional seizure of
the [papers], but he actively conspired and acted with the other defendants to
carry it out." Pl.'s Brief at 40. Since there was no unconstitutional
conduct, the Board of Commissioners for St. Mary's County will be granted
summary judgment as to the claims against it. Having so decided, the Court need
not reach the issue of whether, as Plaintiff argues, Defendants acted pursuant
to a longstanding custom, practice, or policy of violating Plaintiff's First
Amendment rights.