Thomas v. Gladstone

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In the Circu it Court for B altimore C ity Case No. 24-C-03-000285 IN THE COURT OF APPEALS OF MARYLAND No. 130 September Term, 2004 ______________________________________ DEWITT LAVON THOMAS, ET AL. v. KEITH GLADSTONE ______________________________________ Bell, C.J. Raker Wilner Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 11, 2005 The question before us is whether a plaintiff who (1) sues to recover damages for conduct that might, if properly pled, raise a claim under 42 U.S.C. § 1983, but, (2) fails to plead such a claim, may nonetheless recover attorneys fees under 42 U.S.C . § 1988(b ) if he/she prev ails on a State law claim for which an award of attorneys fees is otherwise not permitte d. The answ er is no . BACKGROUND In January, 2003, appellants Dewitt Thomas (Thomas) and his wife, Mallissa, filed a complain t in the Circu it Court for B altimore C ity against the Mayor and City Council of Baltimore (City), the Baltimore City Police Department (Department), and Keith Gladstone, a Baltimore City Police Officer, to recover damages arising from an incident in which Thomas was allegedly accosted, assaulted, and arrested by Officer Gladstone, all without legal justification. The initial complaint contained eleven counts, as follows: Count I (Local Government Tort Claim s Act); Co unt II (neglige nce on the part of G ladstone); Count III (negligent supervision, training, and maintenance of personnel by the City and the Department); Count IV (malicious prosecution); Count V (false arrest and false imprisonment); Count VI (loss of consortium); Count VII (abuse of process); Count VIII (assault); Count IX (battery); Coun t X (defamation); and Count XI (inva sion of privacy). The alleged facts underlying all of those counts were that, as he was leaving his mother s home on November 6, 2002, Thomas was stopped by Gladstone, forced to put his hands against the wall, beaten with a stick, handcuffed, arrested, and incarcerated for two hours. In ¶ 20 of the complaint, which was part of Count I the claim under the Local Government Tort Claims Act Thomas alleged that Gladstone s conduct deprived him of his rights, privilege s and imm unities under the laws of Maryland. (Emphasis adde d). In ¶ 21, he added, in relevant part, that he was deprived of his right to be s ecure in his person and was deprived of his rights to be free of punishment and/or other deprivation of liberty without due process of law, to the equal protection under the law as guaranteed by the Fourth and Fifth A mendm ents. (Emph asis added). Those were the only references in the complaint to any Constitutional violations or to the violation of any rights under Federal law.1 Conceiving that the allegations contained in ¶ 21 may have suf ficed to state a claim under 42 U.S.C . § 1983, the defenda nts removed the case to the United States District Court and filed a motion in tha t court to dism iss the ac tion. Appellants responded with a motion for leave to file an amended complain t and a motio n to reman d the matter to the Circuit Court. Upon th e granting o f leave, app ellants filed an amende d compla int in whic h, in addition to droppin g the City as a d efendan t, they deleted all averments of violations of due process of law, equal protection of the law, and the Fourth and Fifth Amendmen ts. Paragraph 20 alleged that Gladstone s conduct operated to deprive [Thomas] of his rights, privileges and immunities under the laws of Maryland, and ¶ 21 wa s revised to a llege, in 1 In ¶ 27, w hich was part of the C ount III neg ligent superv ision claim, ap pellants alleged that th e City and the D epartmen t owed the m, and bre ached, a d uty to adequa tely train and educate police officers in connection with Federal Constitutional and regulations. The alleged breach was of that duty to train and supervise, not of any Federal C onstitutional rig ht. -2- relevant part, only a dep rivation of h is right to be secure in his person and he was deprived of his rights. (Emphasis added). The purely State law claims remained the same, except that, in ¶ 27, the reference to any duty to train police officers with respect to Federal Constitutional regulations w as deleted. T he new ¶ 27 allege d a duty to train o fficers in connection with local and state regulations. On April 9, 2003, the Fed eral court entered an order granting the motion to remand, noting in its order that the amended complaint remo ves all f ederal c laims. 2 Upon the reman d, appellants dropped the Department as a defendant and proceeded only against Gladstone. During the trial, the court granted summary judgment to Gladstone on all counts other than Counts I (Local Government Tort Claims Act), IV (malicious prosecution), V (false arrest and imprisonment), VI (loss of consortium), VII (abuse of process), VIII (assault), and IX (battery). The jury found for Gladstone on all of the remaining counts submitted to it except Count VII (abuse of process). On that count, it found for Thomas and awarded dam ages of $2,500 for past medical expenses. Within ten days after the entry of judgment on the verdict, appellants filed a motion to revise in which they sought $35,000 in attorneys fees, which they later increased to a request of $41,000. They acknowledged in the motion that their amended complaint was based on Thomas s deprivation of rights, privileges and immunities under the laws of 2 It is not clear whether appellants actually filed their amended complaint in the Federal court or merely informed the court of what they intended to file and later filed the amende d compla int in the Circu it Court after the reman d. The am biguity is unimp ortant. -3- Marylan d, but claimed that, because Article 2 of the Maryland Declaration of Rights makes Federal law the Supreme Law of the state, they were entitled, having prevailed on the state common law ground of abuse of process by a police officer, operating under color of state law, to an award of attorneys fees pursuant to 42 U.S.C. § 1988 (b). The court denied that motion, ap pellants note d an appe al to the Co urt of Spe cial Appe als, and we granted certiorari on our own initiative, prior to any adjudication by the intermed iate appellate c ourt. DISCUSSION The question actually raised by appellants is whether the Supremacy Clause in the Maryland Declaratio n of Righ ts effectively makes § 1988(b) a State law. In an argument that, omitting the mere quotation of § 1988 in a footnote, consumes less than one page of their brief, they suggest that Article 2 of the Declaration of R ights adopts Federal law . It is an interesting question, but one that is not really presented in this case. Appellants cannot prevail becau se, even under F ederal la w, § 19 88(b) is inapplic able. Whether that statute has been somehow adopted or incorporated into State law by virtue of Article 2 is therefore irrelevant. Under the common law American Rule applied in Maryland, the prevailing party in a lawsuit may not recover attorneys fees as an element of damages or costs unless (1) the parties to a contract have an agreement to that effect, (2) there is a statute that allows the imposition of such fees , (3) the wro ngful con duct of a d efendan t forces a pla intiff into -4- litigation with a third party, or (4) a plaintiff is forced to defend against a malicious prosecution. See St. Luke Church v. Smith, 318 Md. 337, 345-46, 568 A.2d 35, 38-39 (1990); Caffrey v. Liquor Control, 370 M d. 272, 292 -93, 805 A .2d 268, 28 0 (2002). T he only circumstance at issue here is the second w hether § 1988(b) allow s the court to award counsel fees. Section 1988(b) o f title 42 provides, in relevant part, that [i]n any action or proceeding to enforce a provision of . . . [section 1 983] . . . of this title . . . the c ourt, in its discretion, may allow the prevailing party . . . a reasonable attorney s fee as part of the costs. 3 Section 1983, in turn, provides, in relevant part, that [e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Cons titution and law s, shall be liable to the pa rty injured in an ac tion at law . Because § 1983 creates a cause of action only for violations of Federal law that occur under color o f State la w, Suessmann v. Lamone, 383 Md. 697 , 710, 862 A.2d 1 , 8-9 (2004), to state a claim under that section, the plaintiff must allege that (1) there was a violation of a right secured by Federal law, and (2) the violation was committed by someone acting under color of State law. West v. Adkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed.2d 40, 48-49 (19 88); Adamson v. Correctional Medical, 359 Md. 238, 270, 753 A.2d 501, 518 3 Section 1988(b) permits an award of attorneys fees in actions to enforce any of eleven Fe deral statutes, o ne of w hich is § 19 83. Beca use we a re concern ed here on ly with that section, we shall limit our discussion to that provision. -5- (2000); Okwa v. Harper, 360 Md. 161, 193-94, 757 A.2d 118, 135-36 (2000). In the absence of those necessary allegations, the action is not one to enforce a provision of § 1983. The closest that the United States Supreme Court or this Court has come to appellants position is where a plaintiff has alleged both an action under § 1983 (or one of the other ten statutes listed in § 1988(b)) and an alternative State law claim based on the same conduct and has prevailed on the State law claim, with no decision being reached on the § 1983 claim. As we pointed out in County Exec., Prince Geo s Co. v. Doe, 300 Md. 445, 456, 479 A.2d 352, 358 (1984), citing Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed.2d 746 (1984) and Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 65 L. E d.2d 653 (1980 ): [I]t is undispute d that whe re a plaintiff a sserts alternate grounds for the same relief, one under § 1983 and the other under state law or a provision of federal law carrying no authorization for attorney s fees, where he prevails upon the latter ground, and where there is no decision on the § 1983 ground, federal law ordinarily entitles him to an attorney s fee award if the § 1983 ground was substantial and grew out of the same f acts. We explained that, in that circumstance, the attorneys fee is awarded not because the plaintiff was successful on the State law ground but rather because he/she raised a substantial civil rights issue under § 1983. Again citing Smith v. Robinson, we observed: Consistent with its desire to promote private enforcement of federal civil rights, Congress purpose in authorizing a fee award for an un addressed constitutiona l claim wa s to avoid penalizing a litigant for the fact that courts are properly reluctant to resolve a constitutional question if a noncon stitutional claim is dispositive. -6- County Exec., Prince Geo s Co. v. Doe, supra, 300 Md. at 457, 479 A.2d at 358 (quoting Smith v. Robinson, supra, 468 U.S. at 1007, 10 4 S. Ct. at 3466, 82 L . Ed.2d at 762). The rationale for allowing an attorneys fe e in that situation is entirely lacking when a § 1983 c laim is not even p led. The pla intiff is not then being pen alized by the ina bility to obtain a fee award after proving conduct that would justify such an award under § 1983, for he/she has failed to present a claim that even potentially could have properly led to one. In their initial compla int, appellants alleged conduct which, if proved, could have resulted in an award under § 1983, and therefore under § 1988(b) as well. When the case was removed to Federal c ourt, how ever, they filed a n amend ed comp laint that effec tively deleted all allegations that rights under Federal law were violated and thereby withdrew any cognizab le claim under § 1983. Their apparent motive was to remove any basis of Federal jurisdiction so that the action could be remanded to the Circuit Court for trial on the State law claims. The consequence of that decision was to give up a claim for attorneys fees under § 1988(b). Appellan ts seek to avoid that result by insisting th at the abuse of proces s claim amounted to a constitutional tort a violation of Thomas s constitutional civil rights under Maryland law. There are two problems with that argument. The first is that abuse of process is a com mon la w, not a constitu tional, tort. We have defined abuse of process as occurring when a party has w ilfully misused c riminal or civ il process afte r it has issued in order to obtain a result not contemplated by law. Krashes v. White, 275 Md. 549, 555, 341 -7- A.2d 798, 802 (1975); 1000 Fleet v. Guerriero, 346 Md. 29, 38 , 694 A.2d 952 , 956 (1997). As we pointed out in Walker v. American Security Co., 237 Md. 80, 87, 205 A.2d 302, 306 (1964), unlike the to rt of malicio us prosecution, abuse of process is concerned with the improper use of criminal or civil process in a manner not contemplated by law after it has been issued, withou t the nec essity of sh owing lack of probab le cause . Thus, the legality of Gladstone s conduct in arresting Thomas and taking him into custody whether any of Thomas s State Constitution al rights we re violated in th at encoun ter is not an element of this common law tort. Thomas has not demonstrated how the misuse of the proc ess, after its issuance, violates the Maryland Constitution. The second problem with appellants argument is that, even if the abuse of process claim did amount to a Maryland Constitutional tort, it would support only a common law action for damages, not a recovery under § 1983 which, as noted, provides redress only for violations of Federal law. A § 1983 claim may not be based solely on a violation o f State law. Screws v. United States, 325 U.S. 91, 108-09, 65 S. Ct. 1031, 1038-39, 89 L. Ed. 1495, 1506-07 (1945); Clark v. Link, 855 F.2d 156, 16 1-63 (4 th Cir. 1988). JUDGMEN T AFFIRMED, W ITH COSTS. -8-