Opinion
Civil Action No. AW-01-925.
May 2, 2001
MEMORANDUM OPINION
This case arises out of the alleged search of Plaintiff, James Isley, and his car at a gas station. Currently pending before the Court are Defendants' Motion for Summary Judgment [20-1] and Plaintiff's Motion to Strike Defendants' Motion for Summary Judgment [25-1]. The motions have been briefed by all parties. No hearing is deemed necessary. See Local Rule 105.6. Upon consideration of the arguments made in support of, and opposition to, the respective motions, the Court makes the following determinations.
I. FACTUAL BACKGROUND
On December 4, 1997, Mr. Isley alleges that, while he was fueling his car, Prince George's County officers, Kimberly Hardy and Dwayne Stevenson, unlawfully detained him, searched his car, and strip searched him. Based upon this incident, Plaintiff brought suit against the individual officers and the county seeking relief based upon battery, false imprisonment, intentional infliction of emotional distress, defamation, and violations of the Maryland Declaration of Rights. Plaintiff subsequently amended his complaint to include a claim under 42 U.S.C. § 1983.
II. DISCUSSION
Defendants' motion for summary judgment is confined to Plaintiff's tort and state constitutional claims. Specifically, Defendants argue that Plaintiff failed to comply with the notice provisions of Maryland's Local Government Tort Claims Act ("LGTCA") and that Prince George's County is immune to suit from the state law claims as well as Plaintiff's request for punitive damages. Plaintiff concedes that Prince George's County enjoys governmental immunity for the common law claims and his request for punitive damages. Accordingly, the Court grants Defendants' motion for summary judgment as to the tort claims and claim for punitive damages as to Prince George's County. Therefore, the balance of the Court's discussion will focus on the application of the notice provisions of the LGTCA to the instant case.
A. Notice Under the LGTCA
Section 5-304 of the LGTCA provides that "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. . . . The notice shall be in writing and shall state the time, place, and cause of the injury." Md. Code. Ann., Cts. Jud. Pro. § 5-304(a)-(b) (1998). "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." Md. Code. Ann., Cts. Jud. Pro. § 5-304(b)(2) (1998). It is undisputed that the county attorney did not receive such notice within 180 days of the incident.
Although acknowledging that formal notice was not given to the county, Plaintiff contends that his substantial compliance with the notice provisions of the LGTCA is sufficient. As proof of his substantial compliance with the notice requirement, Plaintiff relies on the complaint he filed with the Prince George's County Police Department against the individual officers on February 12, 1998. The complaint recounts that events leading to Plaintiff's suit.
Plaintiff correctly states that the Maryland Court of Appeals has held that the notice requirement can be met through substantial compliance with the requisites of § 5-304. See, e.g. Loewinger v. Prince George's County, 266 Md. 316, 317-18, 292 A.2d 67, 68 (1972). "If the purpose of the statute is fulfilled, the manner of the accomplishment of the fulfillment has not generally been tested too technically." Jackson v. Board of County Commissioners, 233 Md. 164, 168, 195 A.2d 693, 695 (1963). Nonetheless, giving notification of the plaintiff's claims to the alleged tortfeasor county agency alone does not substantially comply with the notice requirement. See Loewinger, 266 Md. at 317, 292 A.2d at 68. Although the Maryland Court of Appeals has posited that reexamination of the holding in Loewinger may be appropriate, it remains the controlling law in Maryland. See Williams v. Maynard, 359 Md. 379, 387, 754 A.2d 379, 383 n. 7 (2000).
Not only are the facts of this case are analogous to those in Loewinger, but also a case issued by this Court is directly on point. See Bibum v. Prince George's County, 85 F. Supp.2d 557, 565-66 (D.Md. 2000). In Bibum, the plaintiff also alleged that the filing of a complaint with the Prince George's County police department substantially complied with the notice requirement. The Court held that "[s]ending the complaint form to the police department does not meet the substantial compliance test under Loewinger." Bibum, 85 F. Supp.2d at 565. Following the same reasoning applied in Loewinger and Bibum, the Court finds that Plaintiff's failure to send any notice to the designated county officials within the statutory time-frame is not the type of technical defect that the doctrine of substantial compliance was intended to excuse and, therefore, did not substantially comply with the statute.
B. Waiver Under the LGTCA
Plaintiff also argues that the notice requirement should be waived because Defendants have not affirmatively shown prejudice by his failure to give notice and there was good cause for the lack of notice. Section 5-304 provides that "[n]otwithstanding 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." Md. Code. Ann., Cts. Jud. Pro. § 5-304(c) (1998). "In enacting the escape clause, . . . the legislature made no attempt to define what constitutes good cause, but clearly committed that determination to the discretion of the court." Madore v. Baltimore County, 34 Md. App. 340, 344, 367 A.2d 54, 57 (1976). "The very purpose of that discretion is to permit the court to accomplish substantial justice under varying circumstances, giving due regard to the reason for the requirement, and the rights of the parties." Id.
Defendants have not even alleged prejudice let alone made an affirmative showing of prejudice by Plaintiff's failure to give notice. However, Plaintiff must still show good cause why the Court should still entertain the suit. Plaintiff posits that Defendants' failure to raise the defense of lack of notice for over two years since institution of the suit qualifies as good cause.
"The test for whether good cause exists pursuant to § 5-304(c) is `whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.'" Heron v. Strader, 361 Md. 258, 271, 761 A.2d 56, 63 (2000) (quoting Westfarm Assoc. v. Washington Suburban Sanitary Comm'n, 66 F.3d 669, 676 (4th Cir. 1995). "While courts generally consider a combination of factors, circumstances that have been found to constitute good cause fit into several broad categories: excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard), serious physical or mental injury and/or location out-of-state, [and] the inability to retain counsel in cases involving complex litigation. . . ." Heron, 361 Md. at 272, 761 A.2d at 64 (citations omitted). In interpreting the LGTCA, the Fourth Circuit has also found that the complexity and particular difficulties of proof associated with the plaintiff's cause of action may constitute good cause for delay when the plaintiff exercised reasonable diligence in investigating and pressing his claims against the governmental agency. See Westfarm Assoc., 66 F.3d at 677. Still, "ignorance of the law is no excuse when a party, represented by counsel, fails to give notice because he was unaware that notice was required." Williams v. Montgomery County, 123 Md. App. 119, 134, 716 A.2d 1100, 1107 (1998), aff'd, Williams v. Maynard, 359 Md. 379, 754 A.2d 379 (2000); see Bibum, 85 F. Supp.2d at 565-66. Likewise, the pendency of criminal proceedings against the plaintiff does not constitute good cause. See Heron, 361 Md. at 272-73; 761 A.2d at 64.
The complained of incident occurred in December 1997. Therefore, Plaintiff's 180-day window to file his claim with the county attorney expired in June 1998. The record does not reflect anything that could have prevented Plaintiff from notifying the county attorney of his claims during this period. Further, given the holding in Heron, the Court believes that, absent any affirmative misrepresentations by the police department, simply awaiting resolution of the internal affairs investigation into his complaint does not constitute good cause.
Essentially, by the time Plaintiff filed suit in December 1998, the damage was done. Even if the Defendants had raised the defense earlier, the only effect would have been dismissal of Plaintiff's tort claims (and case) at an earlier stage in the litigation. Absent a showing of any circumstances preventing him from providing the county attorney with the requisite notice, the Court finds no good cause to waive compliance with the statutory requirements of § 5-304. Cf. Martino v. Bell, 40 F. Supp.2d 719, 722 (D.Md. 1999).
Plaintiff did not amend his complaint to include the § 1983 claim until March 13, 2001.
Plaintiff's failure to satisfy the notice provisions of § 5-304or to show good cause for waiver bars his common law claims for battery, false imprisonment, intentional infliction of emotional distress, and defamation. Equally important, Maryland courts have "characterized civil violations of State Constitutional protections as `constitutional torts'. . . ." DiPino v. Davis, 354 Md. 18, 50, 729 A.2d 354, 371 (1999) (stating violations of Articles 21, 24, 25, 26, and 40 of the Declaration of Rights are constitutional torts); see Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995) (construing action brought under Article 24 as a state constitutional tort covered by the LGTCA). "[T]here is no exception in the Local Government Tort Claims Act for constitutional torts." Ashton, 339 Md. at 108, 660 A.2d at 466. "The LGTCA covers municipalities and counties . . . and it applies to all torts without distinction, including intentional and constitutional torts." Thomas v. City of Annapolis, 113 Md. App. 440, 457, 688 A.2d 448, 456 (1997). Consequently, Plaintiff's non-compliance with LGTCA also bars his claim for violations of the Maryland Declaration of Rights. See Martino, 40 F. Supp.2d at 723.
III. CONCLUSION
For the reasons stated above, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion to Strike as moot. Consequently, only the federal claim remains in Plaintiff's cause of action. An Order consistent with this Opinion will follow.