Huemmer v. MAYOR AND CITY COUNCIL, ETC., Civ. No. Y-78-991.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation474 F. Supp. 704
Docket NumberCiv. No. Y-78-991.
Decision Date09 July 1979

Peter Ayers Wimbrow, III, Ocean City, Md., for plaintiff.

Thomas Waxter, Jr. and Bruce I. Rothschild, Baltimore, Md., for defendants the Mayor and City Council of Ocean City and Irving McCabe.

JOSEPH H. YOUNG, District Judge.


Plaintiff Tammy Lane Huemmer, proceeding in forma pauperis, has filed a twelve count complaint against the Mayor and City Council of Ocean City, William and Virginia Gibbs, Kenneth Kidde, and Irving J. McCabe for their individual actions resulting in the impounding of her car on February 14, 1978 in Ocean City, Maryland.

Plaintiff alleges that from July, 1977, until February 14, 1978, she had been residing with defendant Kidde in an Ocean City apartment which he rented from defendant Gibbs. On or about February 14, 1978, plaintiff "parted company" with Kidde, packing all of her personal belongings in her car before beginning to search for other living accommodations. Upon returning to the area, plaintiff discovered that her car had been towed away and impounded by McCabe, the sole proprietor of an automobile towing service, at the request of Kidde and/or the Gibbs pursuant to § 98-1, et seq. of the Code of the Town of Ocean City.1 From February 14, 1978 until September 7, 1978, the car remained in the Town of Ocean City storage yard. Plaintiff claims that her requests that the car be returned were ignored for several months or refused altogether. Additionally, she states that as a result of this deprivation, she has "suffered much anxiety and distress over the loss of her sole means of transportation together with her personal belongings and effects, and much discomfort and inconvenience." Complaint at 4. Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 28 U.S.C. §§ 1331 and 1343. She also invokes several constitutional amendments on her behalf. By way of relief, plaintiff seeks damages for the wrongful taking and detention of her automobile, and a declaratory judgment that Chapter 98 of the Code of Ocean City is unconstitutional. Since her car and possessions therein have been returned, her request for a mandatory injunction to that effect has obviously been mooted.

This Court previously dismissed the action brought against the Gibbs on the grounds that they could not be found to have engaged in activity sufficient to bring them within the "under color of state law" requirement of 42 U.S.C. § 1983. This requirement should be read narrowly to prevent individual activities which do not manifest a significantly strong nexus with state activity from giving rise to civil rights actions. There is authority, for example, to support the proposition that the "under color of state law" requirement "can rarely be satisfied in the case of anyone other than a state official." Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966). While it remains clear that private citizens can act under color of state law whenever their activities assume the character of acts traditionally associated with official conduct, Street v. Surdyka, 492 F.2d 368, 374 (4th Cir. 1974); Dennis v. Hein, 413 F.Supp. 1137, 1139 (D.S. C.1976), such findings have generally been restricted to instances in which the private individual's behavior somehow took the place of official conduct. Larkin v. Bruce, 352 F.Supp. 1076, 1077 (E.D.Wis.1972), appeal dismissed, 483 F.2d 1407 (7th Cir. 1973) (private citizen initiating public nuisance action in Wisconsin court to enjoin violation of Wisconsin abortion statute found to be acting under color of state law as a sort of surrogate attorney general); Palmer v. Columbia Gas Company of Ohio, 342 F.Supp. 241, 246 (N.D.Ohio 1972), aff'd, 479 F.2d 153 (6th Cir. 1973) (entry of gas company's collectors upon private property to shut off customer's gas had trappings of a sheriff or constable and therefore satisfied the color of state law requirement). See also Hall v. Garson, 430 F.2d 430 (5th Cir. 1970).

Similar reasoning mandates that the action brought against defendant Kidde, who has been served with a copy of the complaint but who has never responded, also be dismissed.

The remaining defendants, the Mayor and City Council of Ocean City and Irving J. McCabe, have moved for summary judgment urging that plaintiff may not recover damages in light of defendants' good faith immunity in implementing and enforcing Chapter 98.


Maryland's Transportation Law sets forth the original grant of authority on which Ocean City's abandoned vehicle provisions are based:

(a) Enumeration of powers.—The provisions of the Maryland Vehicle Law do not prevent a local authority, in the reasonable exercise of its police power, from exercising the following powers as to highways under its jurisdiction:
(1) Regulating or prohibiting the stopping, standing, or parking of vehicles;

Md. Transportation Code Ann. § 25-102(a)(1). Pursuant to this grant of authority, Ocean City enacted Ordinance No. 1973-5-2 on May 21, 1973, to be known as the "Ocean City Impounding Ordinance." The purpose of the ordinance is as follows:

For the purpose of protecting the general welfare and public interest of the community; safeguarding the parking facilities of the citizens of the Town of Ocean City from indiscriminate trespassing and utilization; and eliminating the retarding of traffic, unnecessary street congestion, unnecessary delays and traffic hazards, the municipality shall provide impoundment facilities pursuant to the procedures provided in this chapter.

§ 98-2. While detailing the violations and penalties as well as the regulations governing licenses for towing vehicles, the ordinance also contains six sections which provide for the disposition of impounded vehicles after they have been towed:

Towing and Impoundment Procedure
§ 98-8. Notification of towing agency.
Any property owner may, when a vehicle is illegally parked upon his private property, notify any authorized towing agency and request removal of said vehicle. Notification shall not be made by any official of the Town of Ocean City.
§ 98-9. Tow slip.
Upon arrival at the subject property, the towing company shall cause to be presented to said property owner a tow slip which shall consist of one (1) original and three (3) copies. The towing company shall cause said tow slip to be completed by filling in all pertinent data. Before towing or removing the subject vehicle, the towing company shall cause the property owner to sign said tow slip in the place provided. The towing company shall then cause the yellow copy of the towing slip to be securely affixed to the subject vehicle.
§ 98-10. Towing.
The towing company may then proceed to tow the subject vehicle to the impoundment facility maintained by the city.
§ 98-11. Impoundment.
Upon arrival at the impoundment facility, the towing operator shall, prior to receipt of said vehicle, furnish the custodian with the white towing slip, which said slip shall be properly completed and signed by the property owner or said vehicle will be refused. The towing company shall keep the blue and pink towing slips.
§ 98-12. Inventory and inspection.
The impoundment custodian shall, prior to accepting any vehicle for impoundment, observe the exterior of said vehicle and note on an inventory sheet any obvious scratches, dents or other damage to same. He shall also indicate whether or not the keys are in said vehicle and whether or not the vehicle, including the trunk, is locked or unlocked. He shall also do an inventory of the contents of the vehicle by observation, including the contents of the trunk if said trunk is unlocked.
§ 98-13. Impoundment maintenance.
The impoundment custodian shall keep the keys to said vehicle (if same are therein) in his possession at all times while said vehicle is impounded. He shall keep the impounded vehicles under observation and make periodic inspections of said impounded vehicles.

In their motions for summary judgment, defendants recite not only the alleged deficiencies in the Complaint but also seek to justify the legality of the Ocean City ordinance on the basis of its being similar in effect to the Maryland state statute applying to abandoned vehicles, § 25-201(b), which has been in effect since 1969.2 Defendants also submit that no action at common law for damages arises because the municipal ordinance is clearly an act governmental in nature. Additionally, defendants argue that whether or not this Court accepts the doctrine of sovereign immunity, section 1983 does not expose Ocean City to liability for passing a statute in its governmental capacity which is consistent with a state statute and enacted under the state's police powers.


Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343. Sections 1343(3) and 1983 were "intended to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law" as stated in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, reh. denied, 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822 (1972). Similar questions have been presented recently in Connecticut and California. See, e. g., Tedeschi v. Blackwood, 410 F.Supp. 34 (D.Conn.1976), and Stypmann v. City and County of San Francisco, 557 F.2d 1338 (9th Cir. 1977). Unlike the instant case, both Tedeschi and Stypmann involved challenges to the constitutionality of state impounding ordinances where vehicles were impounded only after a police officer makes the initial determination to tow a car and summons the towing company. Here, however, plaintiff avers that the towing company acted pursuant to "the request of Mr. Kidde and Mr. and/or Mrs. Gibbs." Complaint at 3. Even where the initiation of a decision...

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