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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION

RICHARD L. MCDOWELL, Plaintiff, v. VONZELL R. WARD, et al., Defendants. Civil Action No. AW-00-1328

MEMORANDUM OPINION Presently before the Court is Defendant's Motion to Dismiss. Plaintiff filed a response, Defendant replied accordingly, and the motion is ripe for resolution. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons discussed below, the Court will grant Defendant's Motion to Dismiss as to count I and remand the case back to Calvert County for counts II and III. BACKGROUND Plaintiff Richard L. McDowell is a Sergeant/Shift Commander of the honor guard in the Calvert County Sheriff's Department and the President of the Fraternal Order of Police (FOP) Lodge No. 109. On February 1, 2000, an FOP meeting was held in which the Plaintiff presided. At the meeting, one of the topics discussed was implementing state legislation which allowed the Defendant, Sheriff Ward, to appoint a "second assistant" Sheriff within the Calvert County Sheriff's department. A major debate developed as to whether the "second assistant" sheriff would come from within the department, or whether the position would be filled from the outside. The issue drew some public attention. On February 4th and 7th, the Plaintiff spoke with a reporter

from The Washington Post about how the new position would be filled. On another occasion, Plaintiff spoke to a reporter from The Recorder, again, concerning the February 1, 2000 meeting. Articles containing Plaintiff's comments appeared in The Washington Post on February 17, 2000 and in The Recorder on February 18, 2000. On February 9, 2000 Plaintiff alleges that the Defendant notified Plaintiff's shift of a canceled staff meeting without informing the Plaintiff. On February 21, 2000, the Plaintiff alleges that he discovered that Defendant wanted Plaintiff's personal equipment removed from his vehicle because the Plaintiff was going to be reassigned a new motor vehicle. On February 23, 2000, the FOP voted on whether to approve Sheriff Ward's appointment of a "second assistant" sheriff from outside of the ranks. The vote was tied 14-14, until Plaintiff, as president of the FOP, cast the tie-breaking vote in favor of opposing Defendant's proposed personnel action. The Plaintiff alleges that he was further harassed by being told that most of the men on his shift would be transfer by July 1, 2000. On March 10, 2000, Plaintiff met with Maryland Senate President Mike Miller to discuss the FOP's position on the proposed personnel action. Plaintiff alleges in his complaint that on the same day, Defendant called his secretary from home to dictate a transfer notice. On March 13, 2000, Plaintiff alleges he received the transfer notice out of the honor guard and a vehicle reassignment. Plaintiff filed suit against Calvert County and Sheriff Ward on April 18, 2000 alleging: (1) violation of first amendment rights, (2) violation of Article 40 of the Maryland Declaration of Rights, and (3) violation of rights under the Law Enforcement Officer's Bill of Rights (Article 27, sec. 733). The case was removed to the United States District Court based on the federal question presented by count I.

DISCUSSION

I.

Standard for Motion to Dismiss It is well established that a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In determining whether to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must view the well-pleaded material allegations in a light most favorable to the plaintiff, and accept the factual allegations in the plaintiff's complaint as true. See Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir. 1997), citing Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir. 1994); Chisolm v. TranSouth Finan. Corp., 95 F.3d 331, 334 (4th Cir. 1996); J.C. Driskill, Inc. v. Abdnor, 901 F.2d 383 (4th Cir. 1990). The Court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." See Papasan v. Allain, 478 U.S. 265, 286 (1986), citing Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981). Nor is the Court "bound to accept [Plaintiff's] conclusory allegations regarding the legal effect of the facts alleged." United Mine Workers of Am. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979). As the Fourth Circuit has explained, the purpose of Rule 12(b)(6) is to provide a defendant with a mechanism for testing the legal sufficiency of the complaint, and not the facts that support it. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989); Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994); United Mine Workers, 609 F.2d at 1085 (4th Cir. 1979) . Thus, a complaint may be dismissed as a matter of law if it lacks a cognizable legal theory, or it alleges insufficient facts under a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984) (citing 2A J. Moore, Moore's Federal Practice

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