Revene v. Charles County Com'rs

Decision Date14 August 1989
Docket NumberNo. 88-3217,88-3217
Citation882 F.2d 870
PartiesMonica REVENE, Individually, Plaintiff-Appellant, v. CHARLES COUNTY COMMISSIONERS; Office of the Sheriff of Charles County; James Gartland, in his official capacity as Sheriff, Charles County, Maryland; Robert L. Foster, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

William Ray Ford (Kenneth M. Robinson, Rockville, Md., on brief), for plaintiff-appellant.

Jerome C. Schaefer (Carl Roberts, Hanson, O'Brien, Birney & Butler, Rockville, Md., on brief), for defendants-appellees.

Before PHILLIPS and CHAPMAN, Circuit Judges, and KAUFMAN, Senior District Judge for the District of Maryland, sitting by designation.

PHILLIPS, Circuit Judge:

Monica Revene, as personal representative of her deceased husband's estate, appeals from the district court's dismissal of her action under Fed.R.Civ.P. 12(b)(6). The action, brought under 42 U.S.C. Sec. 1983, alleged various federal and pendent state law claims in connection with the shooting death of her husband by an off-duty, Charles County, Maryland, deputy sheriff. Her complaint named as defendants the deputy sheriff, the Charles County Commissioners, the Sheriff and "Office of Sheriff." Relying on various, alternative grounds, the district court granted the defendants' motion to dismiss the action as to all defendants. We hold that the dismissal was proper with respect to the Sec. 1983 claims against the Commissioners, the County Sheriff and the "Office of Sheriff," but that it was error to dismiss the Sec. 1983 claim and the pendent state-law tort claim against the deputy sheriff in his individual capacity. We also hold that the order dismissing the pendent state-law claims against the Sheriff and the County Commissioners should have been entered without prejudice.


The basic facts, as alleged in the complaint, were these.

At 10:30 p.m. on October 6, 1987, Mark Anthony Revene was driving his car in St. Charles, Maryland. At some point, Charles County Deputy Sheriff Robert L. Foster, who was off duty at the time and driving his own vehicle, began to follow Mark Revene, pulling into the driveway behind Revene when he reached his destination. After some type of altercation ensued, Deputy Sheriff Foster got out of his vehicle, drew a handgun and fired, killing Mark Revene.

Some eight months later Monica Revene, as personal representative, filed the complaint in this case in the United States District Court for the District of Maryland. After two extensions of time to plead responsively, the defendants filed a joint motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), attaching a supportive memorandum. Revene then filed her opposition to the motion, which was followed shortly thereafter by her own supporting memorandum.

Some three months later before any discovery was conducted, 1 and without a hearing, the district court granted the defendants' motion to dismiss. All of the federal claims were dismissed on the ground that Revene failed to allege adequately that the off-duty officer was acting under color of state law. The court alternatively dismissed the federal claim against the Charles County Commissioners on the ground that they were not proper defendants because, under Maryland law, they are not responsible for the supervision of county sheriffs. With respect to the Commissioners and the County Sheriff, the court further reasoned that dismissal of the federal claims was proper because the complaint failed to allege sufficiently that the deputy sheriff was acting pursuant to a "policy or custom" that was "enacted or condoned" by either of these defendants. Finally, the court held that the "Office of Sheriff" was not subject to suit because it was not a separate, legal entity. Having dismissed all of the federal claims, the court dismissed the pendent state-law claims against all the defendants "for lack of independent jurisdiction." 2

This appeal followed.


In actions under 42 U.S.C. Sec. 1983, as generally, a motion to dismiss pursuant to Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts to support her allegations. District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085 (4th Cir.1979); Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). As the Supreme Court has explained in another Sec. 1983 case

[w]hen a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss ... for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). We of course review de novo the district court's Rule 12(b)(6) dismissal of this action. Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir.1986).

In granting the defendants' motion to dismiss here the district court recognized its "limited role," but reasoned that dismissal was still warranted at the pleading stage because the allegations of the complaint failed to establish that Deputy Sheriff Foster was acting under color of state law, an essential element of the Sec. 1983 claim. The court explained that

[i]n the complaint, [Revene] admits that Deputy Sheriff Foster was off duty and not in uniform and operating his own vehicle. Defendant Foster was acting outside of his duties as a Deputy Sheriff. A defendant's position as a state official does not make his every action one under color of state law. Only when the defendant is using power granted by the state does it become "state action." ... Thus the liability imposed on a state official under 42 U.S.C. Sec. 1983 ... does not apply to Robert Foster in this case.

Dismissal on this basis was error. The "admission" in the complaint that Deputy Sheriff Foster was off duty, out of uniform and operating his own vehicle at the time of the shooting incident is, contrary to the district court's apparent view, not dispositive. While it certainly is true that "[a]cts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. Sec. 1983," Rogers v. Fuller, 410 F.Supp. 187, 191 (M.D.N.C.1976) (quoting Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975)), the lack of the outward indicia suggestive of state authority--such as being on duty, wearing a uniform, or driving a patrol car--are not alone determinative of whether a police officer is acting under color of state law. Robinson v. Davis, 447 F.2d 753, 759 (4th Cir.1971); Fuller, 410 F.Supp. at 191. See also Hughes v. Halifax County School Bd., 855 F.2d 183, 186-87 (4th Cir.1988) (contrasting outward "indicia of state authority"). Rather, the nature of the act performed is controlling. Monroe v. Pape, 365 U.S. 167, 184-87, 81 S.Ct. 473, 482-84, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The act therefore must be carefully scrutinized to determine whether an officer, when either on or off duty, is acting under color of state law. See Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980). See also Payne v. Government of District of Columbia, 559 F.2d 809, 825 n. 9 (D.C.Cir.1977) ("The circumstances surrounding the use of a service revolver, rather than the mere fact of its use, have constitutional relevance.... Surely one could not reasonably maintain that an off-duty police officer whose revolver accidentally discharged and hurt someone was acting under color of governmental authority").

Under state law, Charles County personnel, such as Deputy Sheriff Foster, are assigned set hours of "active duty" each work day but are, by local ordinance, "on duty twenty-four (24) hours a day" and are expected to "tak[e] proper police action on any matter coming to their attention at any time." Charles County Sheriff's Department Manual of Policy and Ethics Sec. 1407. Even when "off duty," then, Charles County deputy sheriffs retain authority to conduct official police action, and any action purportedly taken pursuant to this authority would be under color of state law whether the deputies "hew to the line of their authority or overstep it." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945) (Douglas, J.). 3

It is clear that had Revene been allowed to go forward with her action beyond the bare-bones pleading stage, she might have been able to prove that Deputy Sheriff Foster was acting under color of state law--despite her admissions that he was off duty, out of uniform and driving his own vehicle. Dismissal therefore was improper on the basis asserted by the district court. District 28, 609 F.2d at 1085.

Defendant-appellees now claim, however, perhaps in recognition of the district court's erroneous basis for dismissal, that "[t]he implicit basis of the District Court's decision is that Revene's Complaint does not adequately allege that Foster was acting in his capacity as a Deputy Sheriff at the time of the incident...." Appellees' Brief at 9. We are convinced, however, that, construing the complaint as we must, assuming the truth of the pleaded facts, Powell v. Shopco Laurel Co., 678 F.2d 504, 505 n. 2 (4th Cir.1982), the complaint sufficiently alleges that at the critical time Foster was acting under color of state law. We need not decide whether the mere recitation that Foster was at all times acting "under the color and pretense of the statutes, ordinances, regulations, customs and usages of the ...

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