Ritchie v. Donnelly

³⁴⁹ ELDRIDGE, Judge. This case concerns alleged violations of the United States Constitution and of the Maryland Declaration of Rights in connection with the discharge of the plaintiff, a female deputy sheriff, from her employment with the Howard County Sheriffs Office. I. As the Circuit Court for Howard County dismissed the plaintiffs complaint, the facts for purposes of this appeal are those alleged by the plaintiff. On April 30, 1986, Sharon M. Ritchie was discharged from her at will public employment as a deputy sheriff in the Howard County Sheriffs Office.

The discharge was effected by the defendant, Virginia L. Donnelly, then Sheriff of Howard County. The background was that, in April 1986, the Sheriffs Office changed its standard firearm from a .38 caliber revolver to a nine millimeter Beretta automatic. The plaintiff had previously qualified for firearm use with the .38 caliber revolver. After one day of classroom training, Ritchie discovered that she could not fire the new weapon with one hand.

Her instructor suggested she hold the weapon in a different way, but Ritchie remained unable to fire the weapon that day. On April 29, 1986, the defendant placed the plaintiff on administrative leave, explaining to the plaintiff that she should never have been qualified to fire a weapon and that the employee who qualified her with the .38 caliber revolver was facing severe disciplinary action. The plaintiffs termination followed shortly thereafter. The complaint alleged that similarly situated male employees were not discharged for failing to qualify with the Office’s standard weapon, that male employees were permitted to carry weapons other than the official firearm, and that male employees were afforded adequate instruction concerning the use of the Beretta.

The plaintiff also claimed that, with additional practice, she became completely proficient in the firing and operation of a nine millimeter ³⁵⁰ Beretta. The complaint further alleged that the plaintiff’s discharge was effected with malice, hate and ill-will. The complaint went on to state that the defendant had disseminated information concerning the discharge of the plaintiff to the news media and that the defendant had falsely stated to other members of the Sheriff’s Office that the plaintiff qualified in the original firearms test because she performed sexual favors for the employee administering the test. Ritchie sought compensatory and punitive damages as well as a writ of mandamus to compel her reinstatement and to compel the rehabilitation of her work record.

The original complaint contained counts alleging sexual discrimination, abusive discharge, defamation, intentional infliction of emotional distress, and violations of Articles 24 and 46 of the Maryland Declaration of Rights. The complaint was later amended to assert violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States and a cause of action under 42 U.S.C. § 1983 . 1 Virginia L. Donnelly was named as the defendant “individually and in her capacity as Sheriff of Howard County, Maryland.” Virginia Donnelly was the only defendant. Neither the State of Maryland nor Howard County was sued. Donnelly was represented by two different lawyers in the circuit court, before the Court of Special Appeals and before this Court.

The Attorney General’s Office, taking the position that the State of Maryland would have to pay a money judgment rendered against Donnelly in her “official capacity,” even though neither the State nor a governmen ³⁵¹ tal entity had been named as a defendant, represented Donnelly in her “official capacity.” Donnelly moved in the circuit court to dismiss the complaint, asserting that the claims against her in her “official capacity” were barred by sovereign immunity while the claims against her in her “individual capacity” failed to state a cause of action because the complaint alleged that all acts occurred in the scope of her employment as Sheriff of Howard County. Donnelly argued in the circuit court, and continues to argue in this Court, that if a public employee’s act is within the scope of his or her employment, the act is committed in the employee’s “official capacity” and not in her “individual capacity.” According to Donnelly, only acts occurring outside of the scope of employment are committed in a public employee’s “individual capacity.” Donnelly also contended that a writ of mandamus was not an appropriate remedy in this case. The circuit court, agreeing with the above-mentioned arguments by the defendant, dismissed the complaint. 2 Ritchie appealed, and in an unreported opinion the Court of Special Appeals affirmed in part and reversed in part. In its original decision, the Court of Special Appeals reversed the dismissal of the § 1983 claim for damages against the defendant in her official capacity.

Upon motion for reconsideration, however, the dismissal of the § 1983 official ³⁵² capacity damages action was affirmed based upon the court’s view that the Sheriff of Howard County was a State rather than a local official and, therefore, was not a “person” for purposes of § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 , 109 S.Ct. 2304, 2312 , 105 L.Ed.2d 45, 58 (1989). See also Howlett By and Through Howlett v. Rose, 496 U.S.-,-, 110 S.Ct. 2430, 2437 , 110 L.Ed.2d 332, 346 (1990). The dismissal of the individual capacity damages action under § 1983 was also affirmed.

The Court of Special Appeals adopted the reasoning of the trial court that the complaint did not state an individual capacity § 1983 claim because it alleged “that the acts and omissions complained of ‘were at all times taken within the scope of [appellant’s] employment [as Sheriff of Howard County].’ ” (Brackets are those of the Court of Special Appeals). The Court of Special Appeals affirmed the dismissal of the state constitutional claims with respect to “individual capacity” claims and reversed as to “official capacity” claims. The “individual capacity” state constitutional claims were affirmed for the same reason that the federal individual capacity claims were affirmed, namely that, because the complaint asserted that the defendant at all times acted within the scope of her employment as Sheriff of Howard County, there could be no individual liability. In reversing the dismissal of the “official capacity” state constitutional claims, the Court of Special Appeals relied on this Court’s decision in Clea v. City of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988), for the proposition that a state officer is not entitled to invoke the immunity of the State with regard to state constitutional violations.

The Court of Special Appeals stated: “We recognize that Clea was a suit against the officer in his individual capacity. As we see it, however, the rationale in Clea is equally applicable to an official capacity action.” The Court of Special Appeals, holding that a writ of mandamus was an appropriate remedy if the plaintiff had ³⁵³ been illegally discharged, reversed the dismissal of the application for a writ of mandamus. The intermediate appellate court refused to consider the dismissal of the state non-constitutional tort claims because the issue was not raised until the plaintiffs reply brief in the Court of Special Appeals. Donnelly, in her “official capacity,” and Ritchie filed petitions for a writ of certiorari which we granted.

The plaintiffs petition sought review of the Court of Special Appeals’ decision upholding the dismissal of the “individual capacity” constitutional claims. Her petition also sought review of the dismissal of the non-constitutional tort claims. The defendant in her “official capacity” sought review of the Court of Special Appeals’ decision reversing the dismissal of the “official capacity” state constitutional claims. The Court of Special Appeals’ decision regarding the application for a writ of mandamus was not challenged in the defendant’s certiorari petition.

II

We shall first consider the dismissal of the plaintiff’s federal law claims under 42 U.S.C. § 1983 based on alleged violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 3 The elements of a § 1983 cause of action, as well as the defenses to that cause of action, are defined by federal law. Howlett By and Through Howlett v. Rose, supra, 496 U.S. at-, 110 S.Ct. at 2442 , 110 L.Ed.2d at 353 ; Md. Nat'l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 13-14 , 511 ³⁵⁴ A.2d 1079, 1085-1086 (1986); County Exec., of Prince George’s County v. Doe, 300 Md. 445, 454-455 , 479 A.2d 352, 357 (1984). Generally, § 1983 “creates a remedy for violations of federal rights committed by persons acting under color of state law.” Howlett By and Through Howlett v. Rose, supra, 496 U.S. at-, 110 S.Ct. at 2433 , 110 L.Ed.2d at 342 .

A body of federal law, both complex and sometimes confusing, has developed under § 1983 concerning the difference between an action brought against a public officer or employee in his “official capacity” as opposed to an action brought against him in his “individual capacity.” The capacity in which a public officer or employee was acting when the alleged deprivation of a federal right occurred determines, to some extent, what a plaintiff must prove in order to establish liability, what defenses are available to an officer or employee, and what is the nature of any liability imposed. Kentucky v. Graham, 473 U.S. 159, 166-167 , 105 S.Ct. 3099, 3105-3106 , 87 L.Ed.2d 114, 122 (1985). This dichotomy between different capacities has caused particular confusion in the present case. 4 In addition to the dichotomy between “official capacity” and “individual capacity” claims, § 1983 authorizes an action against a “person” only. The analysis of whether a particular defendant is a “person,” capable of being sued under § 1983, may also be a complex one.

The analysis is influenced by the possibility that monetary relief will come from the state treasury. Consequently, the determination of whether the defendant is a “person” for purposes of § 1983 may sometimes depend upon the nature of the relief ³⁵⁵ sought. Under some circumstances, the issue may also depend upon whether a state rather than a local government official is the defendant in a § 1983 case. We shall first address the matter of the defendant Donnelly’s status as a “person” capable of being sued under § 1983.

We shall then turn to the dichotomy between “official capacity” and “individual capacity” claims as it relates to the allegations in the plaintiff’s complaint. A. With regard to an action for money damages, neither a state nor a state agency nor a state official sued in his official capacity is a “person” within the meaning of § 1983. Thus, an action for money damages under § 1983 cannot be maintained against a state, a state agency, or a state official sued in his official capacity. See Howlett By and Through Howlett v. Rose, supra, 496 U.S. at-, 110 S.Ct. at 2437 , 110 L.Ed.2d at 346 ; Will v. Michigan Dept. of State Police, supra, 491 U.S. at 71 , 109 S.Ct. at 2312 , 105 L.Ed.2d at 58 .

The Supreme Court in the Will case explained as follows ( 491 U.S. at 71 , 109 S.Ct. at 2311 , 105 L.Ed.2d at 58 ): “Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office____ As such, it is no different from a suit against the state itself____ We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.” On the other hand, a state officer or employee, sued in his individual capacity, is a “person” subject to a suit for money damages under § 1983. Kentucky v. Graham, supra, 473 U.S. at 165 , 105 S.Ct. at 3105 , 87 L.Ed.2d at 121 . See, e.g., Burns v. Reed, — U.S. -,---, 111 S.Ct. 1934, 1940-1942 , 114 L.Ed.2d 547, 559-560 (1991); ³⁵⁶ Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974).

Moreover, as to a claim for prospective relief, a state officer or employee is a “person” under § 1983 regardless of the capacity in which he is acting. An action for an injunction may be maintained under § 1983 against a state officer or employee even though the officer or employee was sued in his official capacity. Will v. Michigan Dept. of State Police, supra, 491 U.S. at 71 n. 10, 109 S.Ct. at 2311 n. 10, 105 L.Ed.2d at 58 n. 10; Sterling v. Constantin, 287 U.S. 378, 393 , 53 S.Ct. 190, 193 , 77 L.Ed. 375, 382 (1932). Ex parte Young, 209 U.S. 123, 159-160 , 28 S.Ct. 441, 454 , 52 L.Ed. 714, 729 (1908); Henne v. Wright, 904 F.2d 1208 , 1211 n. 2 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 692 , 112 L.Ed.2d 682 (1991); Chaloux v. Killeen, 886 F.2d 247 , 252 (9th Cir.1989); Harrington v. Schossow, 457 N.W.2d 583, 586 (Iowa 1990).

Local governments, unlike state governments, are “persons” under § 1983 and can be sued for money damages under § 1983 when governmental law, policy or custom contributed to the violation of federal constitutional or statutory rights. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 690-695 , 98 S.Ct. 2018, 2035-2038 , 56 L.Ed.2d 611, 635-638 (1978). See, e.g., City of St Louis v. Praprotnik, 485 U.S. 112 , 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986); De Bleecker v. Montgomery County, 292 Md. 498, 511-512 , 438 A.2d 1348, 1355 (1982).

A local government official, acting either in his official or in his individual capacity, is a “person” within the meaning of § 1983. Kentucky v. Graham, supra, 473 U.S. at 165-167 , 105 S.Ct. at 3105-3106 , 87 L.Ed.2d at 121-122 ; Brandon v. Holt, 469 U.S. 464, 469 , 105 S.Ct. 873, 876 , 83 L.Ed.2d 878, 883-884 (1985). Because a state government official, sued in his official capacity, is not a “person” for purposes of a § 1983 action for damages, but a local government official is a “person” ³⁵⁷ under the statute regardless of the capacity in which he was acting or the nature of the relief sought, it is obviously necessary in many cases to determine whether an individual defendant is a state or a local government official for purposes of § 1983. This is often difficult when dealing with an official like a Maryland sheriff who has some characteristics of a state official and some characteristics of a local government official.

While, under Maryland law, a sheriff is a state official, the state law classification is not dispositive for purposes of § 1983. See Rucker v. Harford County, 316 Md. 275, 280 , 558 A.2d 399, 401-402 (1989); Clea v. City of Baltimore, supra, 312 Md. at 670 n. 5, 541 A.2d at 1306 -1307 n. 5; Dotson v. Chester, 937 F.2d 920, 926-927 (4th Cir.1991). The courts have recognized that, for purposes of § 1983, a sheriff may sometimes be treated as a state official and sometimes as a local official, depending upon the particular function which the sheriff was performing. Dotson v. Chester, supra; Parker v. Williams, 862 F.2d 1471, 1479 (11th Cir.1989); Soderbeck v. Burnett County, Wis., 821 F.2d 446, 451 (7th Cir.1987).

Recently in Dotson v. Chester, supra, 937 F.2d at 927 , the United States Court of Appeals for the Fourth Circuit suggested that a Maryland sheriff may be a state official under § 1983 while engaged in the law enforcement activity of attempting to arrest a suspected lawbreaker, but the Court of Appeals held that, in operating a county jail, the sheriff was a local government official for purposes of § 1983. It is unnecessary for us in this case to decide whether the defendant Donnelly committed the acts complained of as a state or a local government official for purposes of § 1983. The defendant has consistently adhered to the view that she was a state official under § 1983, and thus, with respect to official capacity damages claims, was not a “person” within the meaning of the federal statute. The Court of Special Appeals held that, with respect to official capacity damages claims, Donnelly was acting as a state ³⁵⁸ official and therefore could not be sued in her official capacity under § 1983.

The plaintiff has not challenged this holding by the Court of Special Appeals. In fact, in her petition for a writ of certiorari and in her briefs in this Court, the plaintiff has expressly taken the position that the defendant was acting as a “state official” for purposes of both the § 1983 claims and the state law claims. 5 In light of the position taken by both parties, we shall assume for purposes of the § 1983 claims in this case that the defendant was acting as a state official. Consequently, as the Court of Special Appeals correctly held, the defendant was not a “person” within the meaning of § 1983 with regard to official capacity claims for damages. Will v. Michigan Dept. of State Police, supra.

Insofar as the plaintiff may have been seeking to impose liability for damages upon the defendant in her official capacity, such official capacity § 1983 claims were properly dismissed. B. An official capacity § 1983 claim for damages differs from an individual capacity § 1983 claim for damages in several respects. For example, as the Supreme Court pointed out in the passage previously quoted from Will v. Michigan Dept. of State Police, supra, 491 U.S. at 71 , 109 S.Ct. at 2311 , 105 L.Ed.2d at 58 , a § 1983 damages suit against a government “official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office____ As such, it is no different from a suit against the [governmental entity] itself.” The Court in Kentucky v. Graham, supra, 473 U.S. at 166 , 105 S.Ct. at 3105 , 87 L.Ed.2d at 121 , explained: “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all ³⁵⁹ respects other than name, to be treated as a suit against the entity____ It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.” The Kentucky v. Graham opinion went on to note (Id. at n. 11): “Should the official die pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the decedent’s estate.

In an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official’s successor in office. See Fed.Rule Civ. Proc. 25(d)(1); Fed.Rule App.Proc. 43(c)(1); this Court’s Rule 40.3.” 6 See also Brandon v. Holt, supra, 469 U.S. 464 , 105 S.Ct. 873 , 83 L.Ed.2d 878 . 7 ³⁶⁰ In a § 1983 claim for damages against a government official in his or her individual capacity, the official, depending on his position, may assert absolute or qualified immunity.. Kentucky v. Graham, supra, 473 U.S. at 166 , 105 S.Ct. at 3105 , 87 L.Ed.2d at 121 .

For example, absolute immunity under § 1983 has been extended to legislators, Tenney v. Brandhove, 341 U.S. 367, 377 , 71 S.Ct. 783, 788 , 95 L.Ed. 1019, 1027 (1951), judges, Pierson v. Ray, 386 U.S. 547, 554-555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288, 295 (1967), and prosecutors engaged in certain activity, Burns v. Reed, supra, — U.S. -, 111 S.Ct. 1934 , 114 L.Ed.2d 547 ; Imbler v. Pachtman, 424 U.S. 409, 427 , 96 S.Ct. 984, 993 , 47 L.Ed.2d 128, 142 (1976). In contrast, qualified or good faith immunity for other government officials varies with “the scope of discretion and responsibilities of the office and all ³⁶¹ the circumstances as they reasonably appeared at the time of the action.” Scheuer v. Rhodes, supra, 416 U.S. at 247 , 94 S.Ct. at 1692 , 40 L.Ed.2d at 103 . In a § 1983 suit against a governmental official in his or her official capacity, however, the above-mentioned immunity defenses are not available. Kentucky v. Graham, supra, 473 U.S. at 167 , 105 S.Ct. at 3106 , 87 L.Ed.2d at 122 ; Owen v. City of Independence, 445 U.S. 622, 638-639 , 100 S.Ct. 1398, 1409 , 63 L.Ed.2d 673, 685-686 (1980).

Another difference between § 1983 individual capacity actions and official capacity actions is that punitive damages are available in the former but not in the latter. Kentucky v. Graham, supra, 473 U.S. at 167 n. 13, 105 S.Ct. at 3106 n. 13, 87 L.Ed.2d at 122 n. 13. The above-described differences between individual capacity and official capacity § 1983 claims are largely differences in results or consequences. They do not provide a standard for determining whether an action against a public official is in fact an action against the defendant in his or her official capacity.

Under the Supreme Court’s opinions, a § 1983 action against a government officer or employee does not become an official capacity action simply because of the labels used by the parties, or because punitive damages are not sought, or because § 1983 immunity defenses are not pled. As previously pointed out, in order to recover damages in a § 1983 suit against a governmental entity which is a “person” (i.e., a county or municipality), the federal law violation must be caused by or must represent an implementation of a statute, regulation, policy, or custom of the governmental entity. The Supreme Court in Monell v. Dept. of Soc. Serv. of City of N.Y., supra, 436 U.S. at 692 , 98 S.Ct. at 2036 , 56 L.Ed.2d at 636 , stated “that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Later the Court reiterated that “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts ³⁶² or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S. at 694 , 98 S.Ct. at 2037-2038 , 56 L.Ed.2d at 638 .

Because an official capacity § 1983 action is in reality an action against the government entity, it is this same factor, namely whether the federal law violation was caused by a governmental statute, policy or custom, which determines whether § 1983 official capacity liability can be imposed. The Supreme Court in Kentucky v. Graham, supra, 473 U.S. at 166 , 105 S.Ct. at 3105 , 87 L.Ed.2d at 122 , after observing that to establish liability in an individual capacity § 1983 action “it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right,” went on to state: “More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a ‘ “moving force” ’ behind the deprivation, Polk County v. Dodson, 454 U.S. 312, 326 , 102 S.Ct. 445, 454 , 70 L.Ed.2d 509 (1981) (quoting Monell, supra, 436 U.S., at 694 , 98 S.Ct., at 2037 ); thus, in an official-capacity suit the entity’s ‘policy or custom’ must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U.S. 808, 817-818 , 105 S.Ct. 2427, 2433 , 85 L.Ed.2d 791 (1985)....” The Court in Brandon v. Holt, supra, 469 U.S. at 473 n. 25, 105 S.Ct. at 878 n. 25, 83 L.Ed.2d at 886 n. 25, indicated that for a § 1983 action to be an “official capacity” action, “the record ... [must] establish that [plaintiffs’] injury was caused by the kind of ‘policy or custom’ that ‘may fairly be said to represent official policy’ of the city____ See Monell, 436 U.S., at 694 , 98 S.Ct., at 2037 .” See also, e.g., City of Canton, Ohio v. Harris, 489 U.S. 378, 385 , 109 S.Ct. 1197, 1203 , 103 L.Ed.2d 412, 424 (1989) (critical issue in determining official capacity or governmental “liability under § 1983 is the question of whether there is a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation”); City of St. ³⁶³ Louis v. Praprotnik, supra, 485 U.S. at 122 , 108 S.Ct. at 923 , 99 L.Ed.2d at 117 (governmental and official capacity-liability for damages “only when, [the government’s] official policies cause their employees to violate another person’s constitutional rights”); Pembaur v. City of Cincinnati, supra, 475 U.S. at 477 , 106 S.Ct. at 1297 , 89 L.Ed.2d at 461 (no official capacity or governmental liability for damages “unless action pursuant to official [governmental] policy of some nature caused a constitutional tort”); Owen v. City of Independence, supra, 445 U.S. at 630-634 , 100 S.Ct. at 1404-1406 , 63 L.Ed.2d at 680-683 . 8 In holding that the plaintiff’s § 1983 claims were not individual capacity claims but were asserted against the defendant in her official capacity only, the courts below did not utilize the above-discussed standard of whether a governmental law, policy or custom contributed to the alleged deprivation of federal rights. Rather, in accordance with the defendant’s arguments, both the circuit court and the Court of Special Appeals employed the stan ³⁶⁴ dard for respondeat superior liability, namely whether the tortious acts were in the scope of the defendant’s employment, as the test for determining whether the plaintiff’s claims were against the defendant in her official capacity.

The defendant and the courts below equated “official capacity” with scope of employment for respondeat superior purposes. Not only did the Court of Special Appeals and the circuit court fail to utilize the correct standard, but they selected a standard which has been repeatedly rejected by the Supreme Court as the test for governmental and official capacity liability under § 1983. See, e.g., City of Canton, Ohio v. Harris, supra, 489 U.S. at 385 , 109 S.Ct. at 1203 , 103 L.Ed.2d at 424 (a government entity “can be found liable under § 1983 only where the [government entity] itself causes the constitutional violation at issue. Respondeat superior ... liability will not attach under § 1983”); City of St. Louis v. Praprotnik, supra, 485 U.S. at 121-122 , 108 S.Ct. at 923 , 99 L.Ed.2d at 117 (pointing out in the plurality opinion that in the Monell case “the Court rejected the use of the doctrine of respondeat superior and concluded that [government entities] could be held liable only when an injury was inflicted by a government’s ‘lawmakers or by those whose edicts or acts may fairly be said to represent official policy’ ”); Pembaur v. City of Cincinnati, supra, 475 U.S. at 478 , 106 S.Ct. at 1297 , 89 L.Ed.2d at 462 (government “cannot be made liable by application of the doctrine of respondeat superior ”); Kentucky v. Graham, supra, 473 U.S. at 168 , 105 S.Ct. at 3106 , 87 L.Ed.2d at 123 ; Monell v. Dept. of Soc.

Serv. of City of N. Y., supra, 436 U.S. at 691-693 , 98 S.Ct. at 2036-2037 , 56 L.Ed.2d at 636-638 . Most actions taken by a government officer or employee “under color of” law, governmental custom or usage will be actions in the scope of employment. Consequently, the test utilized by the circuit court and the Court of Special Appeals in this case would make most § 1983 actions official capacity actions. While this result might help state officials ³⁶⁵ who cannot be sued for damages in a § 1983 official capacity action, it could greatly expand the § 1983 liability of counties and municipalities beyond that contemplated by Congress and reflected in the opinions of the Supreme Court.

Numerous tortious acts by government officers or employees are committed in the scope of employment but are not caused by a law, policy or custom of the government entity. Therefore, under the Supreme Court’s decisions, such torts are not committed in the official capacity of the officers or employees for purposes of § 1983. They are committed in the individual capacity of the officers or employees who are personally liable in damages. See, e.g., Wood v. Strickland, 420 U.S. 308, 322 , 95 S.Ct. 992, 1001 , 43 L.Ed.2d 214, 225 (1975) (school official who expelled students in violation of the students’ federal constitutional rights liable in a personal damages action under § 1983 if the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student”); Scheuer v. Rhodes, supra, 416 U.S. at 243 , 94 S.Ct. at 1690 , 40 L.Ed.2d at 100 .

On the facts of the present case, the plaintiffs’ § 1983 damage claims are individual capacity claims. The gist of the defendant’s allegedly wrongful conduct was discharging the plaintiff because of her sex and making false statements about how the plaintiff had originally qualified for firearm use. While the defendant clearly acted within the scope of her government employment when she discharged the plaintiff, the record does not support even a hint that gender discrimination in the discharge of employees, and making false statements like that allegedly made here, constitute the policy or custom of the State of Maryland or of the Howard County Sheriff’s Office. There is no suggestion of any prior incidents in the Howard County Sheriff’s Office of sex discrimination in the discharge of employees or of allegedly defamatory statements about employees.

Rather, as far as