Allen Dyer v. MD State Board of Education, No. 16-1862 (4th Cir. 2017)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1862 ALLEN R. DYER, Plaintiff - Appellant, v. MARYLAND STATE BOARD OF EDUCATION; JAMES H. DEGRAFFENREIDT, JR., Member, Maryland State Board of Education; CHARLENE M. DUKES, Former Member, Maryland State Board of Education; MARY KAY FINAN, Former Member, Maryland State Board of Education; S. JAMES GATES, JR., Member, Maryland State Board of Education; LUISA MONTERO-DIAZ, Former Member, Maryland State Board of Education; SAYED M. NAVED, Former Member, Maryland State Board of Education; MADHU SIDHU, Member, Maryland State Board of Education; GUFFRIE M. SMITH, JR., Member, Maryland State Board of Education; LINDA EBERHART, Former Member, Maryland State Board of Education; CARNEY, KELCHAN, BRESLER, BENNETT & SCHERR, LLP; JUDITH S. BRESLER, Esquire, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:15-cv-03699-JKB) Submitted: March 29, 2017 Decided: Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. April 21, 2017 Allen R. Dyer, Appellant Pro Se. Brian E. Frosh, Attorney General of Maryland, Elizabeth M. Kameen, Derek S. Simmonsen, Assistant Attorneys General, Baltimore, Maryland; Alvin I. Frederick, Lauren E. Marini, ECCLESTON & WOLF, P.C., Hanover, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Allen Ray Dyer appeals the district court’s dismissal of his lawsuit requesting declaratory relief and damages under 42 U.S.C. § 1983 (2012) and the Maryland Constitution. on the Howard County Board of Education Dyer served (County Board) in Maryland in 2011, when the County Board invoked against him the Maryland State Board of Education’s (State Board) removal process under Md. Code Ann., Educ. § 3-701(g) (2007). After Dyer received notice and a hearing, but before he received a decision, he lost his bid for reelection and his term ended in December 2012. That same month, the Administrative Law Judge who had presided over the hearing recommended Dyer’s removal from the County Board for misconduct in office. The State Board proceeded to review the recommendation and issued an opinion that Dyer had committed misconduct in office. Dyer then sued the State Board, nine of its current and former members, represented proceedings, the and the County requesting attorney Board that in the and the law state district firm who had administrative court declare the removal process illegal and seeking damages for violations of his free speech, due process, and equal protection rights. We review de novo a district court’s grant of a motion to dismiss. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 3 1999). Because we conclude that both declaratory relief and damages are unavailable in this case, we affirm the district court’s judgment. Declaratory relief applies only to cases or controversies. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (citing 28 U.S.C. § 2201(a)(2012)). requires a concrete and A “case or controversy” substantial dispute such declaratory relief would not amount to an advisory opinion. that Id. Because Dyer lost his bid for reelection, declaring the State Board’s removal remedial effect. process illegal would not have a concrete, Thus, we conclude that declaratory relief is inappropriate in this case. We further conclude that Dyer cannot seek damages from either the State Board Defendants or the law firm Defendants. The district court properly ruled that sovereign immunity and absolute, quasijudicial Defendants from suit. immunity protects the State Board The Eleventh Amendment bars the damages suit against the State Board and its members in their official capacities. 2001). See Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. For the claims against the State Board members in their individual capacities, absolute, quasijudicial immunity applies because the State Board performs essentially judicial functions; a strong need exists to ensure that the State Board members can remove County Board members for 4 misconduct without undue harassment from individuals suit; subject and to Maryland removal law adequately proceedings. safeguards See, e.g., Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir. 1999); Butz v. Economou, 438 U.S. argument on evaluate immunity 478, appeal, 513-14 the (1978). district given the Contrary court did information not to Dyer’s prematurely available in the Defendants for pleadings. Finally, Dyer cannot sue the law firm damages under either § 1983 or the Maryland Constitution because they do not qualify respectively. as Section state 1983 “under color of state law.” actors applies or only government to persons 42 U.S.C. § 1983. agents, who act A person acts under color of state law “only when exercising power possessed by virtue of state law and made possible only because wrongdoer is clothed with the authority of state law.” the Polk Cty. v. Dodson, 454 U.S. 312, 317–18 (1981) (internal quotation marks omitted). A law firm and attorney who represent a public school board, like the law firm Defendants did here, do not become state actors under § 1983 by providing legal services to the board, a power not possessed by virtue of state law. Moreover, County Board proceedings. the law in the They did firm Defendants state not only administrative perform 5 represented and the judicial legally-required State functions on behalf of the State as the defendant did in West v. Atkins, 487 U.S. 42, 51 (1988). For the same reasons, the law firm Defendants did not act as “government agents” under the Maryland Constitution. See Manikhi v. Mass Transit Admin., 758 A.2d 95, 111 (Md. 2000) (“Maryland Constitutional provisions have the more narrow focus of protecting citizens from certain unlawful acts committed by government officials. these kinds of Indeed, only government agents can commit Constitutional transgressions.” (internal quotation marks omitted)). Accordingly, we affirm the district court’s judgment. We also deny Dyer’s “Motion to approve/authorize Supplement Brief with Attachments.” facts and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 6

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