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Notice to the State Treasurer and Filing an Internal Affairs Complaint is Insufficient to Satisfy the LGTCA Against the Baltimore City Police Department
Harrell v. Bealefeld, et al.
Plaintiffs Mark Harrell and Roslyn Wiggins (“Plaintiffs”) filed suit against several members of the Baltimore City Police Department (“Defendants”), alleging violations of 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, the Maryland Declaration of Rights, and various state law tort claims arising out of two (2) incidents of alleged police misconduct. Pending before the court were two (2) motions to dismiss the state law and RICO claims.
On September 13, 2010, Mark Harrell (“Mr. Harrell”) was knocking on the front door of the home he shared with Roslyn Wiggins in Baltimore City when Sergeant Joseph Donato (“Sergeant Donato”) allegedly smashed open Mr. Harrell’s and Ms. Wiggins’ front door and other officers then allegedly forcefully restrained and handcuffed Mr. Harrell. Mr. Harrell was taken into police custody, held for twenty-four hours, and was charged with disorderly conduct and loitering in a public place. Both charges were disposed of by nolle prosequi.
On September 16, 2010, Mr. Harrell observed Sergeant Donato in a heated exchange with Mr. Harrell’s cousin. When Mr. Harrell inquired as to the reason for the exchange, Sergeant Donato allegedly violently shoved Mr. Harrell into his police vehicle and demanded that Mr. Harrell provide information regarding an alleged murder, or else an illegal substance would be placed on Mr. Harrell and he would be charged with conspiracy to distribute the substance. On December 9, 2010, Plaintiffs sent notification of a claim under the Maryland Tort Claims Act by certified mail to the State Treasurer’s office.
On September 14, 2011, Plaintiffs filed a complaint against Baltimore City Police Commissioner Frederick Bealefeld, III, Sergeant Donato, and an unidentified Baltimore City police officer. The case was removed to the United States District Court for the District of Maryland. Plaintiffs amended their complaint to include allegations of violations of their Federal constitutional rights under 42 U.S.C. § 1983, the Maryland Declaration of Rights, RICO, and various common law causes of action.
Defendants claimed that the state law and RICO claims should have been dismissed because Plaintiffs did not comply with the notice requirement of the Maryland Local Government Tort Claims Act (“LGTCA”). 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.” In Baltimore City, the notice must be provided in person, or by certified mail, to the City Solicitor. The Baltimore City Police Department is included in the definition of “local government” for the purposes of the LGTCA.
The LGTCA notice provision is a condition precedent to maintaining an action directly against a local government or its employees. The purpose of the notice requirement is to apprise a local government of its possible liability at a time when it could conduct its own investigation. Plaintiffs must affirmatively plead compliance with the notice requirement in their complaints. A plaintiff who fails to plead satisfaction of the requirement is subject to a motion to dismiss based on a failure to state a claim.
Under certain circumstances, however, 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. 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. A tort claimant has substantially complied with the LGTCA’s notice provisions where the tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against that local government, the information required within the statutory period. When the notice does not apprise the proper officials that the plaintiff is pursuing a claim, there is not substantial compliance.
The court held that Plaintiffs neither strictly nor substantially complied with the LGTCA’s notice requirement. They did not file notice in person or by certified mail with the Baltimore City Solicitor within 180 days of the alleged injury, as required by the LGTCA. Nonetheless, Plaintiffs argued that they satisfied the notice requirement of the LGTCA by sending the State Treasurer notification of a claim under the Maryland Tort Claims Act (“MTCA”) on December 9, 2010. They claimed that the MTCA was applicable because the Baltimore City Police Department is an agency of the state. The court found this argument unavailing. Although the Baltimore City Police Department is a state agency, city police are not defined as state personnel for purposes of the MTCA. Rather, employees of the police department are regarded as local government employees entitled to the protection and immunity of the LGTCA. Because this action was against city police officers, Plaintiffs needed to comply with the LGTCA’s notice requirements, and not those of the MTCA.
Plaintiffs also failed to comply substantially with the LGTCA. Maryland law is that plaintiffs substantially comply with the LGTCA where they provided information regarding the incident to the party responsible for investigating tort claims on behalf of the local government, even though the plaintiffs expressed little intent to sue. In contrast, here, Plaintiffs provided notice to the State Treasurer, who does not have responsibility to investigate tort claims against the Baltimore City Police Department. Because notice did not apprise the proper officials that Plaintiffs were pursuing a claim, there was not substantial compliance.
Plaintiffs also claimed to have satisfied the LGTCA’s notice requirements by filing an internal affairs complaint on September 16, 2010. They did not, however, mention an internal affairs complaint in their civil complaint, nor did they refer to it in their statement of facts. Regardless, filing an internal affairs complaint, unless it was filed with the City Solicitor and provided notice of tort claims, would not constitute compliance with the LGTCA.
Finally, Plaintiffs argued that Defendants were not prejudiced by their late filing. Section 5-304(d) of the LGTCA states that “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.” Before a court analyzes whether the defendant has been prejudiced, however, plaintiffs should establish good cause. Here, Plaintiffs made no showing of good cause for their failure to comply with the LGTCA’s notice requirements.
Because Plaintiffs failed to comply strictly or substantially with the LGTCA, and did not show good cause for such failure, both motions to dismiss were granted.
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