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Somerset Co. deputy’s retaliation suit clears hurdle

James “Troy” Durham, who was fired from his job as a Somerset County sheriff’s deputy after he complained about being ordered to doctor an arrest report, has already won a $1.1 million verdict from a federal jury and a state-court action to get his job back.

Now, a judge has ruled that he can proceed with his $5 million lawsuit against the county and its sheriff for failing to pay the judgment and truly reinstate Durham.

The defendants “appear to have made every effort to continue to retaliate against [Durham] and nullify the success of his litigation efforts…,” Senior Judge William M. Nickerson wrote, denying a motion to dismiss the suit in U.S. District Court.

The judgment has gone unpaid, and although Durham was reinstated as a deputy sheriff, “at least in name, he has not been provided with a vehicle, a uniform, a service weapon, or arrest powers — all benefits which he was provided prior to his unlawful termination,” Nickerson wrote.

The judge rejected the county’s argument that Durham’s current lawsuit should be dismissed because he filed an amended complaint 11 days beyond a filing deadline set by federal procedural rules.

Nickerson said Durham “substantially complied” with the 60-day deadline because his attorney had sent letters to county commissioners complaining of the retaliation before time would have expired.

These letters “gave the county more than enough notice to properly investigate plaintiff’s concerns,” Nickerson wrote in the 10-page memorandum Tuesday.

Nickerson also presided over the trial in U.S. District Court last year, in which the jury found that Somerset County Sheriff Robert N. Jones illegally fired Durham. In May, the jury awarded Durham $412,000 in economic losses and $700,000 in noneconomic damages.

In a separate state court proceeding, the Maryland Court of Special Appeals also concluded last year that Durham was wrongfully terminated and ordered his reinstatement.

In Tuesday’s ruling, Nickerson strongly advised the county to comply with the verdict and reinstatement orders and reach a settlement with Durham.

“It would seem … that resolving this matter, not by more litigation (with the attendant costs and delay), but by the appropriate implementation of the previous decisions of a federal jury and the Maryland Court of Special Appeals would be the most prudent course,” Nickerson wrote. “At the parties’ joint request, the court would certainly refer this matter to a magistrate judge for settlement and the court recommends that the parties seriously consider that option.”

Durham’s attorney, Howard B. Hoffman, said Wednesday that he hopes the county will heed Nickerson’s advice and resolve the case without further litigation, but he has doubts in light of the post-judgment retaliation he said his client received.

“It’s quite obvious that the judge would like to see cooler heads prevail,” said Hoffman, a Rockville solo practitioner. “Cooler heads need to prevail in this case.”

The county’s attorney, John F. Breads Jr. of the Local Government Insurance Trust in Hanover, did not return telephone and email messages seeking comment Wednesday.

The underlying incident occurred Aug. 21, 2008, when Durham was in a high-speed chase with a motorcyclist. Durham stopped the motorcycle but the driver struggled with him during the arrest.

In court papers, Durham said he had to knee the driver in the ribs repeatedly, use pepper spray and slap him to handcuff him. Durham said he acted in compliance with the county’s use-of-force protocol.

A few days after the arrest, Durham said, two higher-ranking officers asked him why he had not charged the suspect with resisting arrest and assault. Several days later, a detective sergeant told Durham there was a problem with his initial police report, and that he needed to add charges of assault and resisting arrest, delete three supplemental reports and delete any mention of the use of force from the original report, he said.

When he refused to alter the report, Durham said, the detective told him he would be suspended and might be facing assault charges himself.

Facing arrest and suspension, Durham changed the report and deleted the supplemental reports. However, on Sept. 4, 2008, Durham filed a grievance with the Somerset County Commissioners over what had happened.

The commissioners voted to suspend him.

At an administrative hearing before a trial board, Durham was found to have committed two violations: disseminating departmental material (to the media, among others) and unbecoming conduct.

The board recommended a 10-day suspension, but Jones fired Durham instead.

The Court of Special Appeals overturned that decision last August, finding Jones’ “arbitrary and capricious” actions to be “extreme and egregious.” The court ordered Durham’s reinstatement.

In his original federal lawsuit, filed Sept. 14, 2010, Durham sued Jones in his personal and official capacity. The county also was named a defendant.

As the case progressed, the county was dropped as a defendant and the complaint was amended before trial last May to name Jones solely in his personal capacity.

Durham, who was reinstated last August, filed his post-judgment retaliation claim on Sept. 14, 2012, naming as defendants Somerset County and Jones, in his official capacity.

Seventy-one business days later, on Nov. 26, 2012, Durham filed the amended complaint that was at issue before Nickerson.

The amended complaint also named an attorney for the county, Kirk Simpkins, and county commissioners as additional defendants.