Summary
dismissing municipal liability claim based on finding that complaints filed in two lawsuits against particular officer constituted "mere allegations rather than notice of actual unconstitutional behavior"
Summary of this case from Ostroski v. Town of SoutholdOpinion
Civil Action No. DKC 99-3759.
June 15, 2001
MEMORANDUM OPINION
Presently pending and ready for resolution is Defendants' motion for partial summary judgment. Plaintiff agrees that judgment should be entered for both Defendants on count IV (negligence/gross negligence) and for Prince George's County ("County") on count V (negligent hiring/training). Defendants agree that count I (battery) and a portion of count II (§ 1983 claim against Mileo) must go forward to trial.
Plaintiff has also requested leave to file a surreply. Because Defendants do not raise substantially new arguments in their response, this court finds there is no need for Plaintiff to file a surreply.
Defendants argue that partial summary judgment should be entered in their favor on the issue of the release of the canine in an effort to apprehend a fleeing felon. It seems, however, that the basis for the release is so intertwined with the amount of force used that it is not possible to separate them. Rather, the issue is better resolved by carefully worded jury instructions. Accordingly, the motion is denied in its entirety as to the § 1983 claim against Mileo in count two.
In count III, Plaintiff alleges the policies of the County violated his civil rights pursuant to § 1983. To impose liability on a municipality under § 1983, Plaintiff must "identify a municipal `policy' or `custom' that caused the plaintiff's [constitutional] injury." Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997) (quoting Monell v. Dep't. of Soc. Services of the City of New York, 436 U.S. 658, 694 (1978)).
Plaintiff alleges that the County perpetuates an unconstitutional policy of deploying canines to apprehend all fleeing felons. However, the County's standard operating procedures ("SOPs") cited by both parties directly contradict this assertion. Pl. Ex. 18, § 2.3. The County's policy requires the individual officer to take into consideration the totality of the circumstances and utilize his own discretion. Id. Moreover, a County training officer also testified that K-9 officers are trained to use their discretion in deciding when to deploy the canine. Pl. Ex. 19, Cotton Depo., 17.
Additionally, Plaintiff argues that the County utilizes canines to unconstitutionally control a suspect after establishing the apprehension. As evidence of this policy, Plaintiff offers two other dog bite incidents involving Mileo. Plaintiff, however, fails to offer any evidence that Prince George's County follows a widespread "bite and hold" policy. Even assuming this is a County policy, Plaintiff fails to cite case law finding that this policy is per se unconstitutional.
Plaintiff also contends that the County follows an unconstitutional practice of not requiring the canine officer who orders the deployment of the canine to file a report justifying the use of the dog. According to the uncontradicted deposition testimony of Sergeant Santos, however, the County requires the handler to complete a commander's log detailing the circumstances of the bite. Pl. Ex. 15, Santos Depo., 10.
Plaintiff rightfully asserts that Mileo did not complete a report on the incident with Mr. Amann. Even if in this particular situation the actual officer effectuating the apprehension did not file the report, which runs contrary to the general policy of the County, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy. . . ." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Plaintiff has not provided evidence that County canine handlers routinely fail to report apprehensions in line with a widespread County policy.
Defendant alleges that in this particular instance, two canine officers were on the scene, each of whose canine partner made an apprehension. The other officer, not Corporal Mileo completed the report.
The Fourth Circuit has identified two legal theories for "imposing municipal liability where fault and causation cannot be laid to a municipal policy itself unconstitutional." Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987). First, the city should be held liable for conducting inadequate police training programs "resulting in constitutional violations committed by untrained or mistrained officers." Id.; see also City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989) ("the inadequacy of police training may serve as the basis for section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact") (internal quotation marks omitted). Second, the failure of "municipal policymakers to put a stop to or correct a widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example makes the municipality liable." Id.
The standard to make out a claim under either legal theory is deliberate indifference, "a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of County Commissioners of Bryan County, Oklahoma, 520 U.S. at 410. Plaintiff must show the municipality had "actual or constructive notice" that the particular practice or lack thereof would "result in the violation of the constitutional rights of their citizens." Canton, 489 U.S. at 388. "Generally, proof of a single incident of unconstitutional activity is insufficient to impose municipal liability." Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion). Thus, the plaintiff must "demonstrate that through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Board of County Commissioners of Bryan County, Oklahoma, 520 U.S. at 404.
Plaintiff alleges that the County negligently supervised Mileo by not taking action after receiving notice in the form of two lawsuits, Booker v. Prince George's County, et al., CAL 98-02339, Circuit Court for Prince George's County, Maryland and Walker v. Prince George's County, et al., CAL 98-18078, Circuit Court for Prince George's County, Maryland, filed by plaintiffs bitten by Mileo's canine. Defendants argue that the depositions taken in these lawsuits prior to the bite suffered by Mr. Amann did not provide adequate notice of Mileo's allegedly unconstitutional activities. According to Defendants, the incidents occurred in October and November of 1997 but the lawsuits were not resolved until February 2000. Mr. Amann was apprehended in November 1998. At the time of Mr. Amann's apprehension, the complaints filed in the other lawsuits were mere allegations rather than notice of actual unconstitutional behavior. See Singleton v. McDougall, 932 F. Supp. 1386, 1389 (S.D.Fla. 1996) (finding that evidence consisting solely of unresolved lawsuits was inadequate to suffice as notice to sheriff's department personnel that plaintiff's clearly established right had been violated); see also Peters v. City of Biloxi, Miss., 57 F. Supp.2d 366, 378 (S.D.Miss. 1999) ("mere fact that other lawsuits have been filed against the City of Meridian does not provide a basis for municipal liability"). Accordingly, summary judgment shall be granted as to Plaintiff's Monell claim (count III).
Accordingly, the motion is granted in part and denied in part. A separate order will be entered.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this day of June, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendants' motion for partial summary judgment BE, and the same hereby IS, GRANTED in part and DENIED in part;
2. Judgment BE, and the same hereby IS, ENTERED against Plaintiff and in favor of Tony Mileo and Prince George's County on Count IV, and in favor of Prince George's County on Counts III and V;
3. Counts I and II against Tony Mileo remain for trial;
4. A telephone scheduling conference will be held on Thursday, July 5, 2001 at 9:00 a.m. to set a trial date. Counsel for Plaintiff is directed to arrange for and place the call to counsel and the court; and
5. The Clerk is directed to transmit copies of the Memorandum Opinion and this Order to counsel for the parties.