Hepburn ex rel. Hepburn v. Athelas Institute, Inc., No. CIV.A. WDQ-02-3179.

• Decision Date: 01 July 2004
• Docket Number: No. CIV.A. WDQ-02-3179.
• Citation: 324 F.Supp.2d 752
• Parties: Mark HEPBURN, an Incompetent by Deborah HEPBURN, His Mother Plaintiff, v. ATHELAS INSTITUTE, INC., et al., Defendant/Third-Party Plaintiff, v. The National Center on Institutions and Alternatives, Inc., Third-Party Defendant.
• Court: U.S. District Court — District of Maryland

324 F.Supp.2d 752

Mark HEPBURN, an Incompetent by Deborah HEPBURN, His Mother Plaintiff, v. ATHELAS INSTITUTE, INC., et al., Defendant/Third-Party Plaintiff, v. The National Center on Institutions and Alternatives, Inc., Third-Party Defendant.

No. CIV.A. WDQ-02-3179.

United States District Court, D. Maryland, Northern Division.

July 1, 2004.

COPYRIGHT MATERIAL OMITTED

Alan R. Engel, Robert A. Sapero, Sapero and Sapero, Baltimore, MD, for Plaintiff.

Joseph F. Cunningham, Geoffrey Martin Bohn, Robert A. Battey, Joseph F Cunningham and Associates, Arlington, VA, for Defendant.

MEMORANDUM OPINION

QUARLES, District Judge.

Pending is a Motion to Dismiss the Third-Party Complaint filed by Third-Party Defendant The National Center on Institutions and Alternatives, Inc. ("NCIA"). The motion will be granted for the following reasons.

I. Background

NCIA and Athelas Institute, Inc. ("Athelas") both provide services to developmentally and physically disabled persons. 04/21/03 Memorandum Opinion at 3. Plaintiff Mark Hepburn resided at facilities operated by NCIA, but often spent daytime hours at Athelas facilities. Id. NCIA was still involved in this daytime care, however, because these Athelas facilities contracted with NCIA to provide "habilitation, vocational, and individual support services to Mr. Hepburn." Id. NCIA and Athelas received federal funding under Title 42 U.S.C. §§ 1396-96u. Id.

On September 29, 1999, Hepburn choked on a sandwich at one of the joint Athelas/NCIA facilities. Id. The incident caused permanent injuries to, inter alia, Hepburn's brain and nervous system, which left him in a paralyzed vegetative state. Id. at 3-4.

Hepburn brought this action against both NCIA and Athelas on September 27, 2002, asserting claims under, inter alia, Title 42 U.S.C. § 1983. On April 4, 2003, the Court dismissed all claims against NCIA because Hepburn failed to properly serve it under Fed.R.Civ.P. 4. 04/21/03 Memorandum Opinion & Order at 4-8. Hepburn's state claims against Athelas were also dismissed, but Hepburn's § 1983 claim against Athelas remained. Id. at 14, citing Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990).

On November 20, 2003, Athelas filed a Third-Party Complaint against NCIA, alleging negligence and seeking indemnification and contribution. The Third-Party Complaint alleges that NCIA was responsible for providing services to Hepburn, including the preparation of meals, and that it negligently prepared the meal that injured Hepburn. Third-Party Complaint at ¶¶ 4, 7. Athelas alleges NCIA's negligence with respect to Hepburn led to the suit against it and that Athelas should, therefore, be able to recover from NCIA. Id. at ¶¶ 10-18.

NCIA seeks dismissal of Athelas' Third-Party Complaint on the ground that § 1983 does not provide a right of indemnification or contribution. NCIA argues that the negligence claim is simply a restatement of the indemnification and contribution claims, and suffers from the additional defect that NCIA owed no duty to Athelas.

II. Analysis

A Fed.R.Civ.P. 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). All allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Raj Matkari, et al., 7 F.3d 1130, 1134 (4th Cir.1993). If any possible basis for relief has been pled, the Court must deny the motion to dismiss. Garland v. St. Louis, 596 F.2d 784 (8th Cir.1979), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979); Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992.

A. Contribution

Title 42 U.S.C. § 1983 does not expressly provide a right of contribution. Johnson v. Rogers, 621 F.2d 300, 304 n. 6 (8th Cir.1980)(turning to state law after concluding that federal law does not adequately address contribution issue); Miller v. Apartments and Homes of New Jersey, Inc., 646 F.2d 101, 108 (3d Cir.1981) (implying right to contribution as matter of federal common law); Mason v. The City of New York, 949 F.Supp. 1068, 1077 (S.D.N.Y.1996) (collecting authorities that have found § 1983 does not provide a right to contribution).¹ Miller v. Apartments and Homes of New Jersey, Inc., 646 F.2d 101 (3d Cir.1981), which found that § 1983 does allow contribution as a matter of federal common law, has been criticized as inconsistent with Title 42 U.S.C. § 1988 and the Supreme Court's decision in Northwest Airlines, Inc. v. Transport Workers Union of America, which refused to find a contribution right in Title VII. 451 U.S. 77, 91-94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)(Title VII neither expressly nor implicitly authorizes contribution); Dobson v. D.R. Camden, 705 F.2d 759, 763 (5th Cir.1983), rev'd on other grounds, 725 F.2d 1003 (5th Cir.1984) (noting that § 1988 presupposes that federal law will, at times, not resolve an issue and that resort to federal common law powers to fill in these gaps is only appropriate under the framework of § 1988); Mason, 949 F.Supp. at 1079 & n. 10 (finding no right to contribution under § 1983 and recognizing that Northwest Airlines cautions against adherence to the Third Circuit's decision in Miller). Moreover, contribution rights should not be read into federal statutes to protect the persons regulated by the statute at the expense of the persons protected by the statute. Northwest Airlines, Inc., 451 U.S. at 91-92, 101 S.Ct. 1571 ("Neither the Equal Pay Act nor Title VII expressly creates a right to contribution in favor of employer ... [as] it cannot possibly be said that employers are members of the class for whose especial benefit either the Equal Pay Act or Title VII was enacted"); see also Texas Industries v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) ("Moreover, it is equally clear that the Sherman Act and the provision for treble-damages actions under the Clayton Act were not adopted for the benefit of the participants in a conspiracy to restrain trade. On the contrary, petitioner is a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class ... The absence of any reference to contribution in the legislative history or of any possibility that Congress was concerned with softening the blow of joint wrongdoers ... [indicates] that Congress neither expressly or implicitly intended to create a right to contribution") (internal quotations and citations omitted); Wright v. Reynolds, 703 F.Supp. 583, 590 (N.D.Tex.1988)(contribution and indemnity are not available in § 1983 cases because "Congress, through section 1988, only allowed courts to fashion a remedy ... [to protect the civil rights] of all persons in the United States ... [and therefore] does not authorize courts to fashion a body of federal law involving the rights of those who violate the civil rights of others"). Accordingly, § 1983 does not create a right to contribution.

Section 1988 does not create any additional causes of action; it merely provides the applicable law in actions that are already proper under civil rights statutes like § 1983. Moor v. County of Alameda, 411 U.S. 693, 701, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)(Section 1988 does not authorize federal courts "to borrow entire causes of action from state law"); Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471, 474 (4th Cir.1978) ("Section 1988 in itself does not create any cause of action, but it `instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts'") (internal quotation omitted). However, because contribution is derivative in nature, a claim for contribution may not constitute a prohibited additional cause of action under § 1988. See Horton v. United States, 622 F.2d 80, 83 (4th Cir.1980)(contribution is derivative in nature); Baker, Watts & Company v. Miles & Stockbridge, 95 Md.App. 145, 188, 620 A.2d 356 (1993) ("Contribution is a derivative right and not a new cause of action"); see also Moor, 411 U.S. at 702, 93 S.Ct. 1785 ("Section 1988 ... is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights").

Section 1988 "authorize[s] federal courts, where federal law is unsuited or insufficient `to furnish suitable remedies [in a civil rights action], to look to principles of the common law, as altered by state law', so long as such principles are not inconsistent with the Constitution and laws of the United States." Moor, 411 U.S. at 702-03, 93 S.Ct. 1785; see also Mason, 949 F.Supp. at 1077. Common law tort contribution rights are codified under the Maryland Uniform Contribution Among Joint Tort-feasors Act, Md.Code Ann., Courts and Judicial Proceedings, § 3-1401 et seq. ("Contribution Act"). Section 3-1401 defines "Joint tort-feasors" as "two or more persons jointly or severally liable in tort for the same injury to person or property ..." Id. Section 3-1402 establishes a right of contribution among joint tortfeasors which attaches after one joint tortfeasor "discharge[s] the common liability" or pays "more than a pro rata share of the common liability." Id.²

Though the Contribution Act codifies a general contribution right,³ there is no indication that it applies to Maryland State Constitutional torts, which unlike common law torts, are state law claims that arise when government officials violate the Maryland Declaration of Rights. DiPino v. Davis, 354 Md. 18, 50-51, 729 A.2d 354 (1999)(distinguishing between common law torts, which are subject to certain common law and statutory immunities, from Constitutional torts, which are...