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Deputy’s action survives county’s challenge
Listen to this articleA former Somerset County sheriff’s deputy can move forward with a lawsuit that claims he was fired for speaking out against the department.
A U.S. District Court judge in Baltimore has denied Somerset County’s attempt to bar the lawsuit on the ground that the claims were already litigated in another case filed by James “Troy” Durham.
Durham, who had worked for the department for 10 years, was fired in 2009 for complaining to public officials and the media about being ordered to tamper with a police report.
In the current lawsuit, which was filed in September 2012, Durham claimed he had still not been “unconditionally reinstated” despite favorable rulings in two related cases in state and federal courts. Instead, Durham alleges that he was forced to re-do the law enforcement certification process and denied back wages.
The case is one of many lawsuits Durham filed in connection with his firing. In it, he is suing Somerset County and Sheriff Robert N. Jones in his official capacity, as well as the county’s attorney and the county commissioners.
In another lawsuit, Durham v. Jones, Durham sued Jones in his personal capacity, resulting in a $1.1 million jury verdict that was upheld by the 4th U.S. Circuit Court of Appeals last month.
In the lawsuit resulting in Judge James K. Bredar’s order Wednesday, Durham claimed he had a right to sue Jones in his official capacity even after suing him in another lawsuit in his personal capacity.
The county, which Durham had dismissed voluntarily from Durham v. Jones, claimed that Durham was essentially trying to litigate the same claim twice.
Bredar, however, held the county was not in privity with Jones in his personal capacity in the earlier case and, therefore, Durham’s current retaliatory discharge claims were not barred.
“Dismissals without prejudice do not bar subsequent suits by res judicata,” Bredar quoted from 4th Circuit precedent.
The case will now move forward. Though the county lost on the preclusion argument, it still claims other defenses, including governmental immunity.
Durham is asking for $5 million in economic and non-economic damages for humiliation, stress, embarrassment, mental anguish and loss of enjoyment of life.
Durham’s attorney, solo practitioner Howard B. Hoffman of Rockville, and the county’s attorney, John F. Breads Jr. with the Local Government Insurance Trust in Hanover, did not respond to requests for comment.
In August 2008, Durham engaged in a high-speed chase with a motorcyclist, according to the complaint. When he finally pulled the motorcyclist over, a confrontation ensued and Durham reportedly kneed him in the ribs, sprayed him with pepper spray and slapped him.
Durham did not charge the motorcyclist with resisting arrest or assault in his report. A detective sergeant later asked him to add those charges and remove any mention of use of force by Durham from the report, according to the complaint.
When Durham refused, his supervisors told him he would be suspended or face assault charges. Supervisors even brought him to an interrogation room urging him to alter the report.
Durham finally gave in when they took away his gun, identification and badge, but he filed an internal grievance.
Later, however, Durham discovered that those reviewing his grievance were the same people who wanted him to change the report, including Jones.
Durham then took his concerns public, sending letters and police department documents to several media outlets, the governor, the Somerset County State’s Attorney, the Maryland Police Training Commission and the Maryland State Police.
An administrative trial board eventually acquitted him of most violations, but voted to suspend Durham for disseminating police department material.
Instead, Jones fired him.
Durham sought judicial review and was reinstated in October 2012, three months after the Maryland Court of Special Appeals found his termination was arbitrary and capricious.
Durham has also filed a separate $5 million lawsuit in U.S. District Court against the Maryland Police Training Commission for withholding his law enforcement certification and thereby preventing the restoration of his full police powers. Under state law, officers cannot be employed more than a year without their certification.
That case is also proceeding in federal court.
