White v. Prince George's County

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 at seq. of the Courts and Judicial Proceedings Article (“C. j.”). ¹³³ 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 ¹³⁴ 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: ¹³⁵ 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 Plaintiffs 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 (“LAD.”), wrote a letter to appellant. 6 The letterhead 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 ¹³⁶ 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 arid 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 pre-printed addresses for the Department. One was for the Headquarters ¹³⁷ 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.” Tn 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, “ike 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. ¹³⁸ 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 ] While the Plaintiffs affidavit offers his reasoning for his untimely filing, relying on the internal affairs officer’s advice, the Plaintiff offers no other evidence of any communications with the internal affairs officer. 4 Additionally, he offers no evidence of an ongoing police investigation that would warrant excusing his lack of diligence. This court finds that an ‘ordinarily prudent person’ would have, and should have, done more to ensure his action was proceeding in a timely manner. Opinion and Order of the Court Under the circumstances of this case the Plaintiff has failed to meet his burden of demonstrating good cause and substantial compliance.

Viewing this case in [ ]the light most favorable to the Plaintiff the court finds that he has offered no direct evidence of specific dates, times, or communications to support his allegations so that the court could justifiably infer that any of the Defendants were put on notice within the statutorily prescribed time limits. As such, the court need not address the issue of whether or not the Defendants have been prejudiced by lack of the required notice. On the same date, July 7, 2004, the court issued an “Order of Court,” granting appellees’ motions to dismiss the case. That ruling prompted appellant to file, on July 14, 2004, a “Motion to Alter and Amend Judgment (Rule 2-534) or in the ¹³⁹ Alternative to Revise (Rule 2-535).” With that motion, appellant submitted the letter of July 18, 2001, from the Department and his notarized complaint of July 31, 2001, along with an affidavit referring to the exhibits.

Then, on August 3, 2004, White noted this appeal. Thereafter, on August 5, 2004, appellees filed an opposition to the revisory motion. The court denied “Plaintiffs Motion for Reconsideration” by “Order of Court” dated August 9, 2004. DISCUSSION I. Preliminarily, we shall address appellees’ contentions that 1) appellant noted an appeal solely from the circuit court’s ruling of July 7, 2004, and that 2) because appellant did not appeal from the denial of his revisory motion, it is not appropriate for us to consider the exhibits that appellant attached to his motion to alter or amend.

Appellees assert: Had Appellant noted an appeal from the Court’s denial of his “Motion to Alter or Amend judgment (Rule 2-534) or in the Alternative to Revise (Rule 2-535)” these exhibits might properly be considered in an appeal from that judgment. They should not, however, be considered in a review of the Court’s original judgment dismissing the case. (Emphasis in original). When, as here, a motion to alter or amend is filed within ten days after entry of judgment, the filing of the motion stays the time for filing an appeal until thirty days after the court rules on the revisory motion.

Southern Mgmt. Corp. v. Taha, 378 Md. 461 , 494 n. 13, 836 A.2d 627 (2003); Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md. 473, 486 , 494 A.2d 940 (1985); Pickett v. Noba, Inc., 114 Md.App. 552, 557 , 691 A.2d 268 (1997), on reconsideration, 122 Md.App. 566 , 714 A.2d 212 (1998), cert. denied, 351 Md. 663 , 719 A.2d 1262 (1998); Stephenson v. Goins, 99 Md.App. 220, 225-26 , 636 A.2d 481 , cert. denied, 335 Md. 229 , 643 A.2d 384 ¹⁴⁰ (1994). As we explained in Sieck v. Sieck, 66 Md.App. 37, 44-45 , 502 A.2d 528 (1986), a motion to revise a court’s judgment, “however labeled, filed within ten days after the entry of judgment will be treated as a Rule 2-534 motion.... ” Of import here, if a notice of appeal is filed before the court has ruled on a post-judgment motion, the appeal “will not lose its efficacy ... but its effect will be delayed until the trial court rules on the pending motion.... ” Edsall v. Anne Arundel County, 332 Md. 502, 506 , 632 A.2d 763 (1993). Because appellant filed his revisory motion within ten days of the Order granting the motion to dismiss, appellant is entitled to a review of both the motion to dismiss and the motion to alter or amend.

This includes the exhibits that appellant appended to his revisory motion.

II

In order to pursue a claim for unliquidated damages under the LGTCA, the claimant must comply with the 180-day notice requirement set forth in C.J. § 5-304. It states, in part: § 5-304. Actions for unliquidated damages. (a) Notice required. — Except as provided in subsection (c) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury.

(b) Manner of giving notice.— * * * (2) In ... Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney. (3) The notice shall be in writing and shall state the time, place, and cause of the injury. ¹⁴¹ (c) Waiver of notice requirement. — Notwithstanding the other provisions of this section, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given. (Emphasis added).

Appellant concedes that he did not strictly comply with the notice provision of the LGTGA. Nevertheless, he contends that the court erred when it failed to find that he substantially complied with C.J. § 5-304. In his view, the County was put on notice when he timely filed his brutality complaint with the Department. With respect to the matter of substantial compliance, appellant observes that 1) he timely sent a letter to the Department in July 2001, which was received on July 18, 2001; 2) the Department commenced an investigation and, to that end, Sergeant Dischinger met with appellant on two occasions, all within the statutory notice period; 3) based on the letterhead that appears on the Department’s letter of July 18, 2001, it “would lead a reasonable person to believe that Prince George’s County is on notice.” He adds: “How can the County and the officers ... complain that they were not on notice to allow a timely investigation when they acknowledged the complaint and commenced the investigation?” Appellees respond that the court below did not err in dismissing the suit based on appellant’s failure to comply with C.J. § 5-304, because appellant did not provide the requisite notice within 180 days.

In their view, the complaint filed with the Department did not constitute substantial compliance because “there is no allegation that it was a notice of claim for unliquidated damages, as required by C.J. § 5-304,” nor was there any “allegation or evidence that the police department was authorized to investigate or settle tort claims on behalf of Prince George’s County.” As the Court of Appeals explained in Housing Auth. v. Bennett, 359 Md. 356, 358 , 754 A.2d 367 (2000), “[ujntil the ¹⁴² twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions.” See Rios v. Montgomery County, 157 Md.App. 462, 475 , 852 A.2d 1005 (2004), affirmed, 386 Md. 104, 124 , 872 A.2d 1 (2005). In the early twentieth century, however, the Court of Appeals recognized that local governments had “immunity in certain types of tort actions based on activity categorized as ‘governmental’ but had no immunity in tort actions based on activity categorized as ‘private’ or ‘corporate’ or ‘proprietary.’ ” Bennett, 359 Md. at 359 , 754 A.2d 367 . Thus, “shaped largely by judicial decisions and by statutes dealing with specific agencies or specific matters,” id. at 358 , 754 A.2d 367 , local governments enjoyed limited immunity from tort liability for “nonconstitutional torts based on activity categorized as ‘governmental.’ ” Id. at 361 , 754 A.2d 367 . See DiPino v. Davis, 354 Md. 18, 47 , 729 A.2d 354 (1999) (“A local governmental entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity”); Baltimore Police Department v. Cherkes, 140 Md.App. 282, 314 , 780 A.2d 410 (2001) (stating that “local governmental bodies have common law governmental immunity only for acts that are governmental, and not for private or proprietary acts, and they do not have immunity from liability for State constitutional torts”); see also Harford County v. Town of Bel Air, 348 Md. 363, 373 , 704 A.2d 421 (1998); Ashton v. Brown, 339 Md. 70, 101 , 660 A.2d 447 (1995).

With the enactment of the LGTCA, codified at C.J. §§ 5-301, et. seq., the Legislature sought to “ ‘provide a remedy for those injured by local government officers and employees acting without malice and in the scope of their employment.’ ” Faulk v. Ewing, 371 Md. 284, 298 , 808 A.2d 1262 (2002) (citation omitted). At the same time, it sought to ensure “that the financial burden of compensation is carried by the local government ultimately responsible for the responsible public ¹⁴³ officials’ acts.” Ashton v. Brown, 339 Md. at 108 , 660 A.2d 447 . C.J. § 5-304, set forth above, contains the notice requirement that applies to such tort actions. The Court of Appeals recently ruled that the 180-day notice requirement of § 5-304 is constitutional under both federal and state law.

Rios v. Montgomery County, 386 Md. 104, 120, 135, 136 , 872 A.2d 1 (2005). As the Court explained in Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67, 76 , 48 A.2d 593 (1946), overruled on other grounds as stated in Arnold v. Prince George’s County, 270 Md. 285 , 311 A.2d 223 (1973), the notice requirement derives from the Legislature’s authority to grant or deny an individual the right to pursue a legal action against a municipal corporation. The Court said: When the Legislature creates a municipal corporation as part of the machinery of government of the State, it is within its province to adjust the relative rights of the corporation and the citizens. The Legislature has thus the power to enact a statute requiring that, before suit for damages shall be instituted against a municipal corporation, a written notice of the claim shall be presented to the municipal authorities within a specified period after injury or damage is sustained.

Neuenschwander, 187 Md. at 76 , 48 A.2d 593 (internal citations omitted). The notice requirement under C.J. § 5-304 serves an important purpose. It is designed “to protect the ... counties of the State from meretricious claimants and exaggerated claims by providing a mechanism whereby the ... county would be apprised of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, ‘sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.’ ” ¹⁴⁴ Moore v. Norouzi, 371 Md. 154, 167-68 , 807 A.2d 632 (2002) (citations omitted); see Rios, 386 Md. at 126 , 872 A.2d 1 ; Faulk, 371 Md. at 298-99 , 808 A.2d 1262 ; Williams v. Maynard, 359 Md. 379, 389-90 , 754 A.2d 379 (2000). Among other things, the notice provision enables a governmental defendant to budget properly, to set aside appropriate reserves, and to account for payment of claims under complex accounting rules and tax statutes.

Rios, 157 Md.App. at 477 , 852 A.2d 1005 . As the Court of Appeals recently reiterated, the notice requirement under the LGTCA is “a condition precedent to maintaining an action----” Rios, 386 Md. at 127 , 872 A.2d 1 ; see Faulk, 371 Md. at 304 , 808 A.2d 1262 . Indeed, a suit under the LGTCA is “fatally flawed if the condition is not satisfied.” Rios, 386 Md. at 127 , 872 A.2d 1 . See Waddell v. Kirkpatrick, 331 Md. 52, 59 , 626 A.2d 353 (1993) (defining a “condition precedent” as “ ‘a condition attached to the right to sue at all’ ”) (citation omitted).

The notice requirement operates independent of the limitations period that applies generally to the filing of suit. Serving timely notice is essential to preserve a claimant’s right to file suit at any time during the limitations period. In contrast to the tolling of limitations, nothing in the LGTCA expressly provides for tolling the notice period. See American Gen.

Assur. Co. v. Pappano, 374 Md. 339, 351 , 822 A.2d 1212 (2003); Piselli v. 75th Street Medical, 371 Md. 188, 215 , 808 A.2d 508 (2002); Frederick Road Ltd. Ptshp. v. Brown & Sturm, 360 Md. 76, 95-6 , 756 A.2d 963 (2000); Doe v. Maskell, 342 Md. 684, 696 , 679 A.2d 1087 (1996), cert. denied, 519 U.S. 1093 , 117 S.Ct. 770 , 136 L.Ed.2d 716 (1997). There are circumstances, however, when a litigant is excused from strict compliance with the notice obligation, so long as “the purpose of the notice statute was fulfilled by substantial compliance with the statutory requirements.” Williams, 359 Md. at 390 , 754 A.2d 379 ; see Jackson v. Board of County Comm’rs, 233 Md. 164, 167-168 , 195 A.2d 693 (1963). In Faulk, 371 Md. at 299 , 808 A.2d 1262 , the Court explained: ¹⁴⁵ Where the purpose of the notice requirements is fulfilled, but not necessarily in a manner technically compliant with all of the terms of the statute, this Court has found such substantial compliance to satisfy the statute.

Moore, 371 Md. at 171-72 , 807 A.2d 632 ; Maynard, 359 Md. at 389-90 , 754 A.2d 379 ; Jackson, 233 Md. at 167 , 195 A.2d 693 . Substantial compliance “requires some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision.” Moore, 371 Md. at 171 , 807 A.2d 632 . See also Williams v. Montgomery County, 123 Md.App. 119, 131 , 716 A.2d 1100 (1998), aff'd sub nom. Williams v. Maynard, 359 Md. 379 , 754 A.2d 379 (2000) (noting that notice must be given even if it is deficient in some respects).

In Condon v. Univ. of Maryland, 332 Md. 481, 496 , 632 A.2d 753 (1993), we said that substantial compliance is “such communication that provides ... ‘requisite and timely notice of facts and circumstances giving rise to the claim.’ ” Id. (quoting Conaway v. State, 90 Md.App. 234, 246 , 600 A.2d 1133 (1992)). Relying on Moore, appellant maintains that the filing of his complaint with the Department constituted substantial compliance, because it satisfied the purpose of the notice provision. His reliance on Moore is misplaced.

Moore was a consolidated appeal, arising from separate vehicular accidents involving Montgomery County employees and two claimants, Moore and Mendelson. Moore, 371 Md. at 158-59 , 807 A.2d 632 . Within days of the accident, the claimants discussed the accidents with representatives of Trigon Administrators, Inc. (“Trigon”), Montgomery County’s third party claims administrator. Id. at 162-64 , 807 A.2d 632 .

Trigon’s representative identified himself as the claims administrator for the county and advised that “formal notification” had been received. Id. at 165, 807 A.2d 632 . However, notice was not provided directly to the County, in the manner directed by the statute. Id. at 159, 807 A.2d 632 ; see LGTCA, § 5-304(b)(l)(iii).

Because the claimants failed to notify the County Executive, as required by the statute, Montgomery County argued that they failed to satisfy the statutory notice ¹⁴⁶ requirement under the LGTCA. Moore, 371 at 170, 807 A.2d 632 . The Court recognized that “strict compliance with the notice provisions of the LGTCA is not always required; substantial compliance may suffice,” id. at 171, 807 A.2d 632 , “even though not all of the details prescribed have been complied with.” Id. However, of import here, the Court underscored that “[t]here must be some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision.” Id.

Moreover, the defective notice must satisfy “the purpose” of the notice provision. Id. The Court then considered whether “notice to a third-party claims administrator, acting on behalf of a local government,” constituted substantial compliance with the notice requirements of the LGTCA § 5-304. Id. at 158, 807 A.2d 632 .

The Court defined “substantial compliance” as “ ‘such communication that