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DAUGHTRY v. ARLINGTON CTY.

May 22, 1980

Michael DAUGHTRY et al., Plaintiffs,
v.
ARLINGTON COUNTY, VIRGINIA, et al., Defendants.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

According to the complaint in this action, one early afternoon last September, the plaintiffs, Michael Daughtry and Albert Davis, left their jobs at a parking garage in Arlington County, Virginia to have their lunch at a District of Columbia restaurant. The complaint alleges that they got in Daughtry's car and drove to the District. While they were lawfully proceeding in the vicinity of the 200 block of 17th Street, N.W., it is the plaintiffs' contention that an Arlington County policeman, John T. Baird, driving an Arlington County police car, intentionally rammed their car, approached with gun drawn, then searched, arrested, and accused the plaintiffs of bank robbery. The plaintiffs charge Baird and Arlington County with negligence, false arrest, false imprisonment, assault and battery. Before the Court are the motions of the defendants to dismiss and for partial summary judgment, and the motion of the plaintiffs to amend their complaint.

 It is plaintiffs' contention that this Court has jurisdiction over this action pursuant to sections 1331, 1332, and 1343 of Title 28 of the United States Code. Section 1331 provides for jurisdiction over actions which arise under the Constitution or laws of the United States. Section 1332 provides for diversity jurisdiction. Section 1343 provides for jurisdiction over actions brought pursuant to civil rights statutes such as 42 U.S.C. § 1983. The defendants challenge each of these bases of jurisdiction.

 I. THIS COURT HAS DIVERSITY JURISDICTION IN THAT ARLINGTON COUNTY, VIRGINIA IS A CITIZEN OF VIRGINIA FOR THE PURPOSES OF DIVERSITY JURISDICTION.

 The defendants contend that this Court lacks diversity jurisdiction over this action because the complaint fails to set out the citizenship of the parties and because Arlington County, Virginia is not a citizen of Virginia. With respect to the plaintiffs' failure to allege the citizenship of the parties, an amended complaint making the necessary allegations has been filed. Such amendments are to be freely allowed when justice so requires as Rule 15(a) of the Federal Rules of Civil Procedure so provides. Accordingly, leave to file the amended complaint is granted.

 With respect to the citizenship of Arlington County, the Supreme Court's decision in Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973) provides the controlling precedent. In Moor, the Court held that a political subdivision of a state is a citizen of the state for diversity purposes unless it is the arm or alter ego of the State. Id. at 717, 93 S. Ct. at 1799. The Court went on to examine California law to determine whether the County was merely an arm, alter ago, or agent of the state. Id. The Court's examination of California law revealed the following material factors:

 
(A) county is given "corporate powers" and is designated a "body corporate and politic." In this capacity, a county may sue and be sued, and, significantly for purposes of suit, it is deemed to be a "local public entity" in contrast to the State and state agencies. In addition, the county, and from all that appears the county alone, is liable for all judgments against it and is authorized to levy taxes to pay such judgments. A California county may also sell, hold, or otherwise deal in property, and it may contract for the construction and repairs of structures. The counties also are authorized to provide a variety of public services such as water services, flood control, rubbish disposal, and harbor and airport facilities. Financially, the counties are empowered to issue general obligation bonds payable from county taxes. Such bonds create no obligation on the part of the State, except that the State is authorized to intervene and to impose county taxes to protect the bondholders if the county fails to fulfill its obligations voluntarily. In sum, these provisions strike us as persuasive indicia of the independent status occupied by California counties relative to the State of California. (footnotes omitted).

 Id. at 719-20, 93 S. Ct. at 1801. In addition, the Court pointed out that California's Supreme Court had held that counties in California are corporate in nature. Id. at 720-21, 93 S. Ct. at 1801.

 The defendants contend that Arlington County lacks the indicia of independent status set out in Moor because counties in Virginia are immune from tort action under Virginia law and are considered by that State's highest court as integral parts of the State. The plaintiffs contend that Arlington County possesses many of the characteristics stated in Moor. Namely, under Virginia law the county is referred to as a "body politic and corporate" despite the fact that it is not organized as a municipal corporation. Virginia counties can sue and be sued, and such suits are in the county's own name. Because county tax revenues are potentially subject to damage awards, the county is authorized to provide liability insurance, or may provide self-insurance for certain or all of its officers and employees to cover negligent acts committed or alleged to be committed while discharging their duties. A Virginia county may hold or otherwise deal in property, and may contract for the construction and repair of structures. Virginia counties are authorized to provide a variety of public services such as water service, flood control, rubbish disposal, and parks, recreation areas and swimming pools. Financially, Arlington County can issue general revenue bonds and it alone is responsible for the debts. The county can elect to be treated as a city when it issues such bonds. If the county does not pay its debts, the governor is authorized to withhold state funds, otherwise earmarked for the county, and use these funds to pay county debts. Thus, the plaintiffs contend, Arlington County is more than an alter ego of the State of Virginia.

 The plaintiffs' position on this issue is supported by the decision of the United States District Court for the District of Maryland in Taylor v. Prince George's County, 377 F. Supp. 1004 (D.Md.1974). In Taylor, the court held that Prince George's County is a citizen of the State of Maryland for diversity purposes. In reaching this conclusion, the court noted that a chartered county in Maryland, such as Prince George's, may sue and be sued; purchase, hold, and sell real, personal, and mixed property; pass all ordinances necessary for the exercise of this delegated authority. Id. at 1007. In addition, counties in Maryland can issue bonds for the maintenance of highways, bridges, drains, and streets, and for loans of money; to regulate the keeping of livestock; to levy taxes and to provide recreational facilities. Id. Thus, the court held that in light of the many similarities between the authority conferred on a chartered county in Maryland and the prerogatives of Alameda County, constituting autonomous status in Moor, Prince George's County is a citizen of Maryland. Id.

 The Court finds that Arlington County, Virginia is a citizen of that state for diversity purposes. Arlington shares many of the essential attributes of Alameda and Prince George's Counties. The only substantial difference is Arlington County's immunity from suit. However, immunity from suit does not affect the relationship between a state and a county. A county may be immune from suit and be completely independent of a state, and may not be immune from suit yet be merely an alter ego of a state. Rather than affecting the determination whether a county is a citizen, the question of immunity controls the remedy available against the county once jurisdiction has attached. Furthermore, the remedies available against a county has merely an indirect affect against the relationship between states and counties. Therefore, the Court finds that Arlington County is a citizen of the State of Virginia for diversity purposes. Since both plaintiffs are citizens of District of Columbia and both defendants are citizens of the State of Virginia and the amount in controversy exceeds $ 10,000.00, the Court has diversity jurisdiction over this action.

 II. ARLINGTON COUNTY IS NOT LIABLE UNDER 42 U.S.C. § 1983 ABSENT AN OFFICIAL POLICY ENCOURAGING CONSTITUTIONAL VIOLATIONS AND THE FACTS UNDERLYING SUCH A CLAIM MUST BE SPECIFICALLY PLED AND NOT ALLEGED IN A CONCLUSORY MANNER.

 The plaintiffs' complaint alleges that they were falsely arrested and imprisoned in violation of section 1983 of Title 42, and that Arlington County condoned or sanctioned such conduct pursuant to policies, regulations, and customs. Section 1983 provides:

 
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...

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