White v. Prince George's County

• Decision Date: 06 July 2005
• Docket Number: No. 01293 September Term 2004.,01293 September Term 2004.
• Citation: 163 Md. App. 129,877 A.2d 1129
• Parties: Thomas C. WHITE v. PRINCE GEORGE'S COUNTY, Maryland et al.
• Court: Court of Special Appeals of Maryland

877 A.2d 1129

163 Md. App. 129

Thomas C. WHITE v. PRINCE GEORGE'S COUNTY, Maryland et al.

No. .

Court of Special Appeals of Maryland.

July 6, 2005.

Ellis J. Koch, Rockville, for Appellant.

Rajesh Kumar (David S. Whitacre, County Atty., on the brief), Upper Marlboro, for Appellee.

Panel: HOLLANDER, SALMON, and KRAUSER, JJ.

HOLLANDER, Judge.

Claiming that he was the victim of police brutality during his arrest on April 23, 2001, Thomas C. White, appellant, filed suit on March 18, 2004, in the Circuit Court for Prince George's County, against appellees Prince George's County (the "County") and four of its police officers: Mark Elie; Herbert Pettiford, Jr.; Barba; and Evans.¹ As amended in May 2004, appellant alleged a violation of his civil and constitutional rights; battery and the use of excessive force; and negligent entrustment of a police dog and "continuing police powers" to Officer Elie. Appellees moved to dismiss, claiming appellant failed to provide the requisite notice under the Local Government Tort Claims Act ("LGTCA"), Md. Code (1974, 2002 Repl. Vol.), §§ 5-301 et seq. of the Courts and Judicial Proceedings Article ("C.J.").

After the court granted appellees' motions and then denied appellant's motion to alter or amend, White noted this appeal. He presents two questions, which we quote:

I. Did the Trial Court commit error by failing to find substantial compliance with the 180 day notice requirement of Courts and Judicial Proceedings (CJ) [§] 5-304?

II. Did the Trial Court commit error by failing to find good cause for not following the strict requirements of CJ [§] 5-304?

For the reasons that follow, we shall affirm.

FACTUAL SUMMARY

Appellant was arrested by Prince George's County Police officers on April 23, 2001, and was charged with first degree burglary.² The arrest led appellant to file the underlying suit, alleging police brutality during the arrest.

In response to a motion to dismiss filed by the County alleging, inter alia, that the County was misnamed, appellant filed an Amended Complaint on May 10, 2004.³ White alleged that, after he "peacefully" surrendered, he was handcuffed and ordered to "lay on the floor." Then, according to appellant, "without cause or provocation," Officer Elie "released his [police] dog and ordered the dog to bite." Appellant averred that the dog "violently bit" him, "tearing flesh from [appellant's] leg." When appellant attempted to stand, Officer Elie struck him in the head with a baton, "splitting open" appellant's head and inflicting a wound that required twenty-four stitches. Although Officers Pettiford, Barba, and Evans "were present during the entire incident," White claimed that they "took no action to prevent Officer Elie from causing injury" to appellant.

Because the Amended Complaint failed to allege compliance with the statutory notice requirement in C.J. § 5-304, appellees moved to dismiss the suit.⁴ In response, appellant filed a "Motion to Entertain Suit," claiming substantial compliance with the notice requirement and good cause for failing to follow "the strict requirements of C.J. § 5-304(a)."⁵

With his Motion to Entertain Suit, appellant submitted an undated affidavit. He averred, in part:

2. After the incidents alleged in the Complaint, I filed a Complaint with the Prince George's County Police.

3. I was visited by Sgt. Allen W. Dis[c]hinger who stated that he was from Internal Affairs and that my complaint was being investigated.

4. I was told to take no action while the investigation was taking place.

5. I received subsequent visits by Sgt. Allen W. Dis[c]hinger when I was again assured that the matter was being investigated and I would be advised.

6. I took no action as instructed and awaited action to be taken by the police.

7. Any delay in this matter was induced by the representations of the police.

White also submitted a copy of the business card of Sergeant Dischinger.

Thereafter, the County filed an Opposition to the Motion to Entertain Suit. Appellees also submitted an undated affidavit of Sergeant Allen Dischinger, who averred, in part:

1. I am currently employed as a sergeant for the Prince George's County police department, assigned to the homicide unit. I have been a Prince George's County police officer for 23 years and a detective for most of that time.

2. I was the iad investigator for the case referenced in Plaintiff's Complained [sic] filed in the above-captioned case.

3. I spoke with the Plaintiff on two occasions — both at the Prince George's County Detention Center. The first visit was on 7/24/01, during which time I took a taped witness statement from him. I also visited the Plaintiff on 8/1/01 for purposes of photographing him.

4. At no time did I indicate to the Plaintiff that he was "to take no action" while the investigation was taking place.

The exhibits reflect that, in July of 2001, appellant filed with the Prince George's County Police Department (the "Department") a complaint of police brutality in connection with his arrest in April of 2001. In response, on July 18, 2001, Captain Ellis Jones, Commander of the Department's Internal Affairs Division ("I.A.D."), wrote a letter to appellant.⁶ The letter-head on the stationery said, "The Prince George's County Government." Across the bottom of the letter, it stated: "HEADQUARTERS: 7600 Barlowe Road, Palmer Park, MD 20785," which is the primary address for the Department. The letter stated:

This is to advise you that your complaint was received by this Department on July 18, 2001. Since your complaint alleges brutality on the part of a member of this Department, it must meet certain conditions mandated by State law before any investigation can be conducted.

On July 1, 1977, the State legislature amended the "Law Enforcement Officers' Bill of Rights," Article 27, Section 727-734D of the Annotated Code of Maryland. Section 728B(4) states:

"A complaint against a law enforcement officer, alleging brutality in the execution of his duties, may not be investigated unless the complaint be duly sworn to by the aggrieved person, a member of the aggrieved person's immediate family, or by any person with first hand knowledge obtained as a result of the presence at and observation of the alleged incident, or by the parent or guardian in the case of a minor child, before an official authorized to administer oaths. An investigation which could lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken unless the complaint is filed within 90 days of the alleged brutality."

Therefore, the Police Department is prohibited, by law from conducting any investigation in regard to the brutality portion of your complaint due to the fact it has not been duly sworn to and notarized. Sgt. Allen W. Dischinger #972, will be contacting you to arrange a meeting to have your complaint notarized.

In the event you have any questions concerning the matter, please do not hesitate to contact any member of the Internal Affairs Division at (301) 896-2660.

Thereafter, on July 24, 2001, Sergeant Allen W. Dischinger, an I.A.D. investigator, met with appellant and took a recorded statement from him. He then photographed appellant on August 1, 2001.⁷ No evidence was presented showing that appellant had any further contact with the Department or I.A.D. personnel.

In the meantime, on July 31, 2001, appellant completed and signed a notarized form with respect to the incident of April 23, 2001,⁸ titled "Prince George's County Police Department Complaint Against Police Practices." In the space provided to describe the incident, appellant wrote, "I've Already Provided A Statement!" The top of the form included two preprinted addresses for the Department. One was for the Headquarters located in Palmer Park, and the other was for the Internal Affairs unit in Clinton. In the section asking for the names of the officers "involved" in the alleged brutality incident, appellant wrote "CPL Elie," "PFC Barba," "P.O. Pettiford," and "P.O. Evans."

In a "Memorandum Opinion of the Court" dated July 7, 2004, the court granted the Motion to Dismiss, without a hearing. The court said, in part:

Before the Court is the question of whether or not the Plaintiff in the above-referenced case provided the required notice or had good cause not to, before bringing an action for unliquidated damages against Defendants as outlined under the Local Government Tort Claims Act....

* * *

As outlined by the Court of Appeals, "the purpose of the notice requirements under the LGTCA is to ensure that the local government is made aware of its possible liability at a time when it is able to conduct its own investigation and ascertain, for itself, from evidence and recollection that are fresh and undiminished by time, the character and extent of the injury and its responsibility for it." Moore v. Norouzi, 371 Md. 154, 807 A.2d 632 (2002).

"Relevant to determining the amount of diligence with which an `ordinarily prudent person' under the circumstances of [his/her case] would prosecute his or her claim is the underlying purpose of the notice statute." Moore v. Norouzi, 371 Md. 154, 807 A.2d 632 (2002).

In the case sub judice, the Plaintiff asserts by affidavit that he filed a complaint with the Prince George's Police department and that [Sergeant Dischinger] advised him to take no action while the matter was being investigated. He also states that the same officer visited him and assured him that the matter was being investigated. Plaintiff offers the above as proof that he substantially complied with the notice requirements of the LGTCA and that he had good cause not to follow the strict statutory requirements thus the court may still entertain his suit.

The LGTCA statute explicitly states that actions for unliquidated damages may not be pursued unless notice is given within 180 days after the injury. In this instance, notice was not given until approximately two years later.[⁹]

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