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BURT v. BARRY

April 11, 1997

JOAN BURT, Plaintiff,
v.
MARION BARRY, et al., Defendant.



The opinion of the court was delivered by: SPORKIN

 This matter is before the Court on the motions to dismiss the immediate case submitted by two of the defendants, Ms. Stefanie L. Schwartz, Esquire and the Honorable Peter H. Wolf. The Court has considered the motions and the opposition thereto and heard argument on April 4, 1997.

 BACKGROUND

 On December 1, 1993, Plaintiff Burt appeared in Superior Court for the District of Columbia as personal representative in an estate matter to answer an Order to Show Cause why she should not be held in contempt for failure to pay a disputed claim on the estate for $ 25,000. (the "December 1, 1993 Hearing"). The Court had ordered that the disputed claim be paid by Plaintiff Burt on behalf of the estate at a hearing on November 2, 1993 (the "November 2, 1993 Hearing").

 At the December 1, 1993 Hearing, Judge Wolf ordered that Plaintiff Burt use estate funds to pay the disputed claim. Plaintiff Burt stated that the estate account required dual signatures on checks and she could not immediately obtain the second signature. She also claimed that the disputed claim was on appeal and no longer within the jurisdiction of the Superior Court. Plaintiff Burt alleges that Judge Wolf used abusive language toward her during the December 1, 1993 Hearing and ordered that she be held in contempt of Court. Judge Wolf ordered that Plaintiff Burt be incarcerated until she paid the disputed $ 25,000 claim. Plaintiff Burt was taken into custody by the U.S. Marshals immediately after the December 1, 1993 Hearing and held until she paid the disputed claim on the following day. *fn1"

 The December 1, 1993 Hearing which gave rise to the immediate action was the result of an alleged settlement of a claim which was not paid by Plaintiff Burt in her capacity as Personal Representative of the Estate of E. Josephine Greene (the "Estate"). The claim had been filed in the Superior Court for the District of Columbia, Probate Division, and docketed as Case No. 64-91 (the "Estate Case"). At a pretrial conference for the Estate Case on September 13, 1993 before the Honorable Eugene N. Hamilton, the Estate allegedly offered a $ 25,000 settlement (the "Settlement") which was accepted by the plaintiff in the Estate Case, Walk-In Medical Center ("Walk-In"), the following day. When the Estate allegedly failed to pay the Settlement, Walk-In filed a Motion to Enforce the Settlement through its counsel, Ms. Stefanie L. Schwartz, Esquire, one of the defendants in the immediate case. A hearing on Ms. Schwartz's motion was set for November 2, 1993.

 The Estate Case was transferred to Judge Peter H. Wolf prior to the November 2, 1993 hearing because of Judge Hamilton's appointment as Chief Judge. Nonetheless, Judge Hamilton presided over the November 2, 1993 hearing and granted Ms. Schwartz's Motion to Enforce Settlement. Judge Hamilton directed Plaintiff Burt, as personal representative of the Estate, to pay the $ 25,000 settlement within three days (the "November 2, 1993 Order"). On November 5, 1993, Ms. Schwartz filed a Motion for Sanctions and for Contempt and for Expedited Adjudication on behalf of Walk-In.

 Plaintiff Burt entered a notice of appeal from the November 2, 1993 Order on November 10, 1993. *fn2" Judge Wolf issued an Order to Show Cause on November 16, 1993 as to why Plaintiff Burt should not be held in criminal and/or civil contempt for failure to comply with the November 2, 1993 Order, and set the December 1, 1993 Hearing. At the December 1, 1993 Hearing, as described above, Judge Wolf held Plaintiff Burt in contempt for her failure to comply with the November 2, 1993 Order of Judge Hamilton. Judge Wolf ordered her incarcerated until the Estate paid the Settlement.

 Plaintiff Burt was released the following day after arranging for the Estate to pay the Settlement. After her release, Plaintiff Burt filed two motions on behalf of the Estate, a Motion for Injunctive Relief requesting that Walk-In post a bond pending the appeal of the November 2, 1993 Order, and a Motion for Attorney's Fees. Both of those motions were denied by the Court on June 18, 1994 and Plaintiff Burt appealed the Court's decisions. All appeals from the Estate Case were consolidated by the District of Columbia Court of Appeals, which affirmed all rulings of the lower court on July 22, 1993. Plaintiff Burt did not appeal the order entered at the December 1, 1993 Hearing.

 Plaintiff Burt filed her Amended Complaint in the immediate case on December 20, 1996. She alleges that the conduct of all Defendants violated 42 U.S.C. § 1983 and the common law, and she seeks declaratory relief (with respect to all Defendants) and damages (with respect to all Defendants except Defendant Schwartz). Plaintiff Burt claims that "improper ex parte contacts and improper communications between Judge Peter Wolf, opposing counsel Stefanie Schwartz, U.S. Marshal John Doe and other persons unknown to Plaintiff [were] part of the unlawful conspiracy . . . to deprive Plaintiff here of the federal constitutional right to due process." Amended Complaint P VII. Plaintiff Burt alleges further that Judge Wolf is not protected by judicial immunity in this matter, and that Defendants District of Columbia and Walter Ridley failed to appropriately educate, supervise, train and/or discipline the Defendant correction officers, U.S. Marshals and police officers with whom Plaintiff Burt came in contact after her incarceration on December 1, 1993.

 ANALYSIS

 A. Defendant Schwartz's Motion to Dismiss

 1. Defendant Schwartz did not act "under color of state law"

 In order to state a claim under 42 U.S.C. § 1983, a plaintiff must be able to allege and prove that the defendant "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia deprived the plaintiff of any rights, privileges or immunities secured by the Constitution and law." 42 U.S.C. § 1983. The first and most fundamental element of a § 1983 claim is that the defendant acted ...


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