Taylor v. Prince George's County, Maryland

• Decision Date: 01 July 1974
• Docket Number: Civ. No. 73-1113-HM.
• Citation: 377 F. Supp. 1004
• Parties: Sarah TAYLOR and Charles Taylor v. PRINCE GEORGE'S COUNTY, MARYLAND, and Jay Harrington.
• Court: U.S. District Court — District of Maryland

377 F. Supp. 1004

Sarah TAYLOR and Charles Taylor v. PRINCE GEORGE'S COUNTY, MARYLAND, and Jay Harrington.

Civ. No. 73-1113-HM.

United States District Court, D. Maryland.

July 1, 1974.

Yale L. Goldberg, and Lawrence A. Hoffman, Silver Spring, Md., for plaintiffs.

Patrick A. O'Doherty, Baltimore, Md., for defendant Harrington.

Joseph S. Casula, and John R. Barr, Upper Marlboro, Md., and Patrick A. O'Doherty, Baltimore, Md., for defendant Prince George's County, Md.

HERBERT F. MURRAY, District Judge.

Charles Taylor, a minor resident of the District of Columbia, brought this action on November 12, 1973 through his mother, Sarah Taylor, to recover damages against Jay Harrington, an officer of the Prince George's County, Maryland Police Department hereinafter the County for injuries received during an attack by a police dog under Harrington's supervision.¹ The theoretical bases for this suit are the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Maryland common law governing the torts of negligence and assault and battery. Jurisdiction over the federal cause of action rests on 28 U.S.C. § 1343(4), whereas the state law claims are grounded on either the diverse citizenship of the parties or the doctrine of pendant jurisdiction. The amount of damages sought against each defendant exceeds the statutory prerequisite of $10,000 and venue is properly laid in this district pursuant to 28 U.S.C. § 1391 because the incident triggering this litigation occurred in Maryland. Harrington has answered the complaint with a general denial of the alleged wrongdoing and raised, as an affirmative defense, the doctrine of sovereign immunity which purportedly shields the officers of a Maryland agency from tort liability unless they consent to the suit. The County subsequently moved to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure for failure of the plaintiffs to state a claim upon which relief can be granted. More precisely, it argues that a county is not a "person" within the meaning of 42 U.S.C. § 1983 and is not subject to an action for damages under that section. Second, the County asserts that the officer was acting as an agent of the state of Maryland when he arrested Taylor and that principals alone are liable for the torts of their agents. Finally, it contends that Article 57 of the Annotated Code of Maryland precludes suit against Maryland counties unless they receive notice within one hundred and eighty days of the injury and that this prerequisite is not alleged in the complaint.

In his response to this motion, the plaintiff concedes that the County is not subject to a claim for damages under 42 U.S.C. § 1983 and consents to the dismissal of that cause of action. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Taylor insists, however, that notice of the incident was received by the Prince George's County Council on July 30, 1973, through a registered letter and has submitted an affidavit from his counsel, a copy of the letter describing the purported assault, and a return receipt to support this assertion. From these documents, it is apparent that Taylor informed the County of his injuries within the meaning of Article 57 of the Annotated Code of Maryland and that this notification is sufficient to avoid dismissal of his common law tort claims on this ground.

Nevertheless, resolution of these preliminary questions underlying the motion to dismiss still leaves the Court with two further issues which require more extended consideration. First, the Court is compelled to raise sua sponte the propriety of its subject matter jurisdiction over an allegation of tortious conduct under state law where one of the diverse parties is a municipal entity. Second, there is a dispute between all parties concerning the legal relationship of Harrington to the County and the state of Maryland which is central to the defense that police officers are agents of the state and that the municipalities are, therefore, freed from liability for their employee's misconduct.

I.

Since dismissal of the federal question cause of action against the County eliminates the juridical basis on which the Court could determine the state law claims under the doctrine of pendant jurisdiction, the appropriate inquiry becomes whether a Maryland County is a "citizen" within the meaning of 28 U.S.C. § 1332(a)(1).² United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Shuman v. Sherman, 356 F.Supp. 911 (D. Md.1973). At the outset, it is settled law that neither a state nor its instrumentalities are citizens for the purpose of establishing federal diversity jurisdiction. Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894); Fifty Associates v. Prudential Insurance Co. of America, 446 F.2d 1187, 1191 (9th Cir. 1970); Krisel v. Duran, 386 F.2d 179 (2nd Cir. 1967). The corollary to this premise recognizes that a "political subdivision of a State, unless it is simply the arm or alter ego of the State, is a citizen of the State for diversity purposes" and that the status of a county as an independent legal entity is determined by examining state law. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890).

While decisions subsequent to Moor have held without extensive analysis that counties are presumptively citizens of the state of their location Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602, 610 (7th Cir. 1973); Pyramid Corp. v. DeSoto County Board of Supervisors, 366 F.Supp. 1299, 1301 (N.D.D.Miss.1973), it is apparent from Justice Marshall's opinion that only an autonomous legal entity enjoys the status of state citizenship under the diversity statute. Moreover, those factors evidencing the independence of Alameda County were carefully defined:

Most notably, under California law a county is given "corporate powers" and is designated a "body corporate and politic." In this capacity, a county may sue and be sued, and, significantly for the purposes of this suit, it is deemed . . . a "local public entity" in contrast to the State and state agencies. In addition . . . the county alone is liable for all judgments against it and is authorized to levy taxes to pay such judgments. A California county may also sell, hold, or otherwise deal in property, and it may contract for the construction and repairs of structures. The counties are also authorized to provide a variety of public services such as water . . ., flood control, rubbish disposal, and harbor and airport facilities. Financially, the counties are empowered to issue general obligation bonds payable from county taxes . . . which create no obligation on the part of the State. . . . Moor v. County of Alameda, 411 U.S. at 719-20, 93 S.Ct. at 1801.

Another element stressed by Justice Marshall was an opinion of the California Supreme Court which characterized counties as corporate bodies subject to writs of mandamus.

In this state, comparable powers accrued to the County upon its adoption of a charter pursuant to Article XI-A of the Maryland Constitution.³ According to Article 25A § 1 of the Annotated Code of Maryland which was enacted under this provision, a chartered county may sue and be sued; purchase, hold and sell real, personal and mixed property; and pass all ordinances necessary for the exercise of this delegated authority. Implementing these powers is section 1013 of the Prince George's County Charter:

The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence or other wrongs of its officers, agents and employees.

Maryland counties are also permitted to issue bonds for the maintenance of highways, bridges, drains and streets and for loans of money; to regulate the keeping of livestock; to levy taxes and to provide recreational facilities. Not surprisingly, the General Assembly has described this delegation of exclusive powers as "home rule." See Anne Arundel County v. Bowen, 258 Md. 713, 267 A.2d 168 (1970); Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 252 A.2d 242 (1969). Given the many similarities between the authority conferred on a chartered county in Maryland and the prerogatives of Alameda County constituting autonomous status in Moor, it is evident that the defendant County is properly a "citizen" within the meaning of 28 U.S.C. § 1332 under certain circumstances.

II.

A possible exception to this conclusion is raised by several decisions of the Maryland Court of Appeals which distinguish between the corporate powers of a county and its exercise of a governmental function as an instrumentality of the state. Maryland counties act in a governmental fashion, for example, when they employ, supervise, pay and discharge police officers. This principle was clearly enunciated in Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447 (1930) where Judge Offutt observed:

The protection of the citizen . . . is essentially a governmental function to be exercised by the state under its police power through proper agents. . . . Accordingly it may be taken as settled that police officers exercising directly the police power of the state are governmental agents, that their duties are of a public nature, and that, whether appointed by it or not, they are not municipal servants or agents, and that municipalities for which they are appointed will not be responsible for their acts or omissions as police officers, . . . whether done or omitted under a public law or a municipal ordinance. Id. at 201, 150 A. at 450.

Continued support for this rule that counties are immunized from tort liability by...