u« *»- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Michael N. Dotson and Wayne )

Musgrove, and all others

)

similarly situated,

)

)

Plaintiffs, )

)

v.

)

>

Donald Satterfield, Lemuel )

Chester, Jack Colburne,

)

Charles Dayton, William I. )

Wingate, Calvin Travers, in )

their individual and

)

official capacities,

)

)

Defendants. )

COMPLAINT Plaintiffs, on behalf of themselves and the class alleged herein, state the following: I. Preliminary Statement 1. This is a class action brought by Plaintiffs on behalf of all persons who are or will be confined at the Dorchester County Detention Center (DCDC) in Cambridge, Maryland. Plaintiffs seek declaratory and injunctive relief for deprivations under color of state law of their rights, privileges and immunities secured by the Constitution of the United States, and, in particular, those secured by the First, Sixth, Eighth, and Fourteenth Amendments thereof. 2. Plaintiffs specifically seek relief from conditions at the DCDC which fall below the standards of human decency, deny basic human needs, and inflict needless suffering on prisoners.
Dotson v. Satterfield
llllJilllll

2

Plaintiffs incarcerated in the DCDC further contend that they are

forced to live in an environment where the ill effects of

particular conditions, often exacerbated by other conditions,

threaten their physical and mental well-being and result

unnecessarily in their physical and mental deterioration.

3. The DCDC was constructed in Cambridge, Maryland, over

100 years ago. It is presently unfit for the safe housing of

prisoners.

Electrical, plumbing, and heating systems are

dilapidated beyond hope of repair. The walls, floors and fixtures

are crumbling. The outdated design of the structure prevents

proper supervision of prisoners. The DCDC is a fire-trap. These

hazards are exacerbated by extreme, chronic overcrowding. Sixty

to eighty men and women are regularly crowded into space too

small, under contemporary standards, for twenty. Men are

freguently triple-celled in 50 square foot cells. There are only

two bunks in each cell, requiring the third occupant to sleep on a

thin mattress or blanket on the floor. The conditions at DCDC

pose an imminent risk to the health and safety of the prisoners

presently confined there.

II. Jurisdiction 4. Plaintiffs seek relief under 42 U.S.C. §1983 to redress
injuries suffered by them and the class they represent for deprivation under color of state law of rights secured to them under the First, Sixth, Eighth and Fourteenth Amendments. This

3 Court has jurisdiction over the claims pursuant to 28 USC §13 31 and 1343(3).
5. Venue in the District of Maryland is proper. Each of the Defendants resides in the District of Maryland, and each of the claims for relief arose in this district. III. Plaintiffs
6. Michael N. Dotson and Wayne Musgrove are prisoners at the DCDC. IV. Defendants
7. Donald Satterfield is the Jail Administrator and is responsible for the day-to-day operation of the DCDC. He is a full-time employee of the Dorchester County Council. Mr. Satterfield is an experienced correctional professional and, because of his daily presence in the jail, is fully aware of the deficiencies which exist therein.
8. Lemuel Chester, Jack Colburne, Charles Dayton, William Wingate, and Calvin Travers are members of the Dorchester County Council, and as such they have statutory responsibility, pursuant to the Dorchester County Code, section 44-2, for the management of the jail and appropriation of funds to meet the needs of those confined at the DCDC. The Dorchester County Council is fully aware of the deficiencies which exist at the DCDC, and yet has failed to remedy those deficiencies. V. Class Action Allegations
9. This is a class action under Rules 23(a) and 23(b)(l) and (2) of the Federal Rules of Civil Procedure.

4 10. Plaintiffs are representative parties of a class of all persons who are confined at DCDC, or who may be so confined in the future. 11. Plaintiffs are members of the class and their claims are typical of all class members. Plaintiffs are represented by competent counsel and will fairly and adequately protect the interests of the class. 12. The class is so numerous that joinder of the members is impracticable. Current members of the class number approximately 60. 13. The lawsuit challenges various conditions of confinement at the DCDC and there are questions of law and fact common to the class. 14. The Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class. VI. Factual Allegations
Shelter 15. The DCDC is grossly overcrowded. The main cellblock contains 20, approximately 50 square foot, cells. Fifty to sixty men are generally incarcerated in this area. There is a segregation area in the basement which is sometimes utilized to house prisoners for protection, for punishment or for work release. Five to six women are housed in an upstairs area originally designed as a small apartment. Men are often triple

5 celled in the main cellblock. The third man must sleep on mattresses on the floor due to overcrowding.
16. There is one operable shower for the entire male population. Sinks and toilets leak, causing floors to be constantly damp, even in areas where men must sleep on the floor. Prisoners have been forced to live for months without hot water. Toilet facilities are covered with mold and mildew.
17. There are no functioning heat or air conditioning systems in the jail. Ventilation is inadequate. Lighting is dim throughout the living areas. There are no lights inside the cells.
18. Prisoners are allowed to exercise only in the small catwalk areas in front of their cells or in a small space in the shower area. There is no structured space within the facility for exercise or recreation. Prisoners are not allowed to go outside for exercise or recreation.
19. Risk of injury by fire is great. Each cell must be unlocked manually to release prisoners. There are no adequate means of escape in the event of fire. The construction of the facility and the deterioration of basic utility systems increase the risk of fire. Fire drills are not held regularly.
Food 20. Prisoners are not provided with an adequate, nutritious diet. Many prisoners in the jail have suffered a significant weight loss during incarceration. Food is served at improper temperatures due to lack of proper equipment. Food handlers are

6 not trained in sanitary food preparation procedures. Men must eat in their cells, and food slots in the doors through which food is passed are filthy.
Sanitation 21. The DCDC is dirty throughout. Walls, ceilings and floors are difficult to clean due to age and deterioration. Men are not provided with adequate cleaning supplies to maintain their cell areas. The interior of the entire facility is dingy and in need of fresh paint. 22. Toilet facilities are deplorable. The shower is covered with slime and mold. Sinks and toilets are covered with the accumulation of years of grime. Sinks in the cells sometimes cannot be turned off at all, and the overflow contributes to the damp, cold environs. Plumbing facilities, including commodes, the shower and sinks, leak and are clogged, leaving water standing on floors and in the shower. 23. Laundry facilities are totally inadequate for this population. Sheets, towels and blankets are dingy. Mattresses are not sanitized between uses by prisoners. Prisoners must launder their own underwear in their cells. Disinfectants are not provided. Personal Safety 24. Overcrowding leads to scarcity of resources, tension and stress which in turn encourage confrontations and violence. The inadequate space and design of the DCDC prevents defendants from adequately separating weak and vulnerable prisoners from stronger

7 ones. Guards are indifferent and unresponsive to prisoner's needs for protection. Staffing is not adequate to supervise prisoners. A trusty is responsible for the management of the living area. Guards are not stationed inside the main cellblock, but must be summoned by banging on bars or doors or by waiving towels from the cells in an effort to attract the attention of the officers who are monitoring the cellblock by way of television monitors located outside the blocks. Suicide attempts occur frequently; two have been successful within the past years. One prisoner has been beaten twice so severely as to require hospitalization.
25. The DCDC fails to provide employment, education or recreational opportunities resulting in pervasive idleness. Although at least partly caused by overcrowding, this idleness is also due to the indifference of the defendants to the needs of prisoners. No effort is made to provide activities which could be productive and relieve the tension and frustration of daily life at the DCDC. This idleness also contributes to the violence and the threat of violence.
26. Women prisoners are completely isolated from the population and from supervisory officers. They have no means of summoning assistance in case of emergency other than banging on the heavy wooden doors.
Medical, Mental Health, and Dental Care 27. Medical services, including dental and mental health care, at the DCDC are totally inadequate and constitute deliberate indifference to prisoners' serious medical needs. Emergency,

routine and basic preventive care are inadequate. Physician services are never provided. A nurse is present in the facility only once a week. Prisoners must wait long periods of. time to receive medical or dental care treatment for serious problems. Mental health treatment is virtually non-existent.
28. Overcrowding has seriously exacerbated the deficiencies in services and staffing, and has increased the likelihood of the transmission of communicable diseases and other health risks. Routine screening of newly admitted prisoners is not done prior to placement in the general population of the facility.
29. Mentally disabled prisoners are not separated from the rest of the population. No treatment is provided for them. They remain at the mercy of more aggressive prisoners.
Visitation 30. Visitation facilities at the DCDC are inadequate. Prisoners are allowed visitors only one day per week and then only for 10 minutes per visitor with a maximum of three visitors. No contact visits are allowed. Children under 16 are never allowed to visit their parents. Access to Courts 31. Prisoners at the DCDC are effectively denied access to the courts. There is no law library at the DCDC, and prisoners have only limited and indirect access to law books or other necessary materials such as paper, pens, typewriters, copy machines, envelopes or stamps. There are no law clerks to assist prisoners in their criminal cases, or in the myriad other legal

9 problems prisoners, especially those serving long periods of time, encounter. Only the booking room is available for visits with lawyers, and it is separated from the office where guards and sheriff's staff congregate by only a door with a screen, such that attorney-client conversations can be heard by anyone caring to listen. Thus, inmates encounter difficulty in communicating with those who represent them. Prisoners are thereby prevented from actively participating in the preparation of their cases. VII. Claims for Relief
First Claim 32. Plaintiffs reallege and incorporate by reference paragraphs 15 through 29. 33. Defendants fail to provide Plaintiffs with the basic necessities of life, including adequate food, shelter, sanitation, medical, dental and mental health care, and personal safety. The conditions at the DCDC are incompatible with contemporary standards of decency, cause unnecessary and wanton infliction of pain and are not reasonably related to any legitimate governmental objectives. Sentenced prisoners are thereby subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and pre-trial detainees are subjected to impermissible punitive conditions in violation of the Due Process clause of the Fourteenth Amendment.
Second Claim 34. Plaintiffs reallege and incorporate by reference paragraph 30.

10 35. Plaintiffs incarcerated at the DCDC are denied the basic right of familial relationships in appropriate surroundings in violation of their rights under the First Amendment to the United States Constitution. Third Claim 36. Plaintiffs reallege and incorporate by reference paragraph 31. 37. Defendants, by their failure to provide adequate and appropriate materials and equipment, or law clerks to assist Plaintiffs, have denied Plaintiffs access to courts in violation of the Sixth and Fourteenth Amendments of the United States Constitution. • VIII. No Adequate Remedy At Law 38. As a proximate result of the Defendants' policies, practices, procedures, acts and omissions, Plaintiffs have suffered, do suffer, and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury. Plaintiffs' physical and psychological health and well-being will continue to deteriorate during the course of their confinement under the conditions described in this complaint. Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiffs will continue to be irreparably injured by the policies, practices, procedures, acts and omissions of the Defendants unless this Court grants the injunctive relief that Plaintiffs seek.

11 IX. Prayer for Relief
WHEREFORE, Plaintiffs and the class they represent pray this Court:
1. Determine by order pursuant to Rule 23, Federal Rules of Civil Procedure, that this action may be maintained as a class action;
2. Issue a declaratory judgment stating the Defendants' policies, practices, acts and omissions described in this Complaint violate Plaintiffs' rights, guaranteed to them by the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution;
3. Permanently enjoin Defendants, their officers, agents, employees and successors in office, as well as those acting in concert and participating with them, from engaging in the unlawful practices described in this Complaint;
4. Retain jurisdiction of this matter until this Court's order has been carried out;
5. Award Plaintiffs their reasonable costs and attorneys' fees pursuant to 42 U.S.C. §1988; and
6. Grant such other relief as may be just and equitable. Respectfully submitted,
Claudia W r i g h t 7 j Adjoa A. Aiyetoro ^ ACLU National Prison Project 1616 P Street, N.W. Suite 340 Washington, D.C. 20036 (202) 331-0500

DATED

12
Susan Goering ACLU Maryland The Equitable Building Suite 405 10 N. Calvert St. Baltimore-, MD 21202 (301) 576-1103 Counsel for Plaintiffs

 
 £ ^

fNTFRM

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CC7 3 1388

MICHAEL N. DOTSON, et al.,

ATBAUMOPE

CLIRK U.S. DISTRICT CCMMT

DISTRICT Of MARVLAMO

BY

WTWTY

Plaintiffs

v.

* Civil Action No. JH-87-3123

DONALD SATTERFIELD, et al., *

Defendants.

*

*

*

*

* **

STIPULATED SETTLEMENT AGREEMENT
On February 1, 1988, Michael N. Dotson, et al., (hereinafter, "the plaintiffs") in this class action lawsuit filed their amended complaint alleging violations of the United States Constitution against Lemuel Chester, Jack Colburne, Charles Dayton, Calvin Travers, and William Wingate (hereinafter collectively referred to as "Commissioners"), Donald Satterfield and Philip H. McKelvey (hereinafter collectively referred to as "Sheriff") (both Commissioners and Sheriff sometimes collectively referred to as "defendants"). The parties herein now waive hearing and agree to the submission of this Stipulated Settlement Agreement to the Court for its review and approval.

•rt ft •

unset

Dotson v. Satterfield
JC-MD 004-002

It is agreed by and between the parties as follows:

I.

GENERAL PROVISIONS

A. This Agreement is entered into to resolve an existing dispute between plaintiffs, those individually named

and those similarly situated, and the defendants, concerning appropriate conditions in and policies, procedures and practices necessary to operate the Dorchester County Jail in a

manner which will satisfy federal constitutional standards. This Agreement satisfies and resolves the claims of the class

of plaintiffs, excepting only any attorneys' fees and costs of plaintiffs' counsel. Any petition for said legal fees and costs filed by plaintiffs shall be structured so as to specify

those fees assessed against the defendant Commissioners and the defendant Sheriff. Defendants reserve the right to contest any

application made by plaintiffs for fees and costs.

B. Defendants do not admit nor is there any finding that any constitutional rights of plaintiffs have been

violated. The defendants deny any said violation of plaintiffs' rights. The Commissioners have denied and continue to deny any legal responsibility for the procedures, policies,

practices, administration, or operation of the Dorchester County Jail.

C. The plaintiffs brought this suit as a class action seeking to represent members of the class for purposes

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of securing declaratory and injunctive relief. For purposes of this Agreement, the class shall be those persons which the Court has previously identified and certified as members of the class pursuant to its order dated July 13, 1988. The class includes those inmates who are confined in the Dorchester County Jail, or who may be so confined in the future.
D. The defendants agree to operate all Dorchester County institutions housing class members in a manner consistent with the terms of this Agreement and the Constitution of the United States. This Agreement in no way constitutes an adjudication or finding of any present or past unlawful practice by the defendants, it being fully understood that the defendants unequivocally deny that any such acts or practices exist or have occurred. The parties have entered into this Agreement solely as a means to put a reasonable end to the controversy and to avoid the costs, time and risks which litigation would involve for both parties.
E. The Court shall retain jurisdiction in this case until this Agreement is fully implemented and satisfactory and sustained compliance has been demonstrated by defendants in all substantive areas. At such time the defendants may move the Court for abrogation of this Agreement and dismissal of this case in whole or in part. Nothing stated herein shall prevent plaintiffs from moving the Court for additional or further relief upon a claim of non-ccmpliance.
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F. . As long as the Court retains jurisdiction in this case, counsel for plaintiffs shall have access to and shall receive copies of documents which effectuate the implementation of this Agreement. Counsel for plaintiffs shall have access to all plaintiffs at reasonable times and under reasonable circumstances. Plaintiffs' counsel shall have access to all staff and institutions housing class members, upon reasonable notice to defendants' counsel. Defendants' counsel may be present at any meeting between plaintiffs' counsel and defendants' staff.
G. Defendants shall immediately explain the terms of this Agreement to all of their agents, servants, representatives, and employees, including institutional staff, correctional officers and other personnel, in order to ensure their understanding of the requirements of this Agreement and the necessity for strict compliance therewith. Defendants shall require strict compliance with this Agreement by said persons. Defendants shall require continued training of all staff regarding this Agreement.
H. Members of the plaintiff class agree not to engage in any acts which would result in non-compliance with any terms of this Agreement through no fault of the defendants. Members of the plaintiff class will assist the defendants in maintaining public property in the best condition
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possible by not damaging or destroying public property in the institutions.
I. By entering into this Agreement, plaintiffs are not waiving any rights to pursue individual claims for declaratory, injunctive, and/or monetary relief. The only claims against defendant settled herein are claims for injunctive relief of a general nature as detailed in the amended complaint filed in this case, which are applicable to more than the individual circumstances of a particular plaintiff class member.
J. The parties agree that nothing in this Agreement is intended to prevent defendants from implementing new programs or changes in physical conditions which benefit plaintiffs, nor is the Agreement intended to, and it shall not, have the effect of diminishing the rights, programs or conditions which existed prior to this Agreement pursuant to defendants' policies, procedures or other lawsuit settlements; nor shall it diminish any substantive rights or procedural protection plaintiffs may now have or hereafter acquire under state or federal statutes. The defendants shall carry out every provision of this Agreement in good faith. II. COMPLIANCE
The parties agree to retain an independent monitor, who shall be a person acceptable to both parties, to observe
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and report upon compliance with the terms of this Agreement, and to give advice and recommendations to either party upon request. The parties have agreed to the appointment of

Reverend Joseph Wenderoth, as monitor. Should Reverend Wenderoth become unable to continue service as monitor, the

parties shall agree on a new monitor. If in the future the parties are unable to agree upon an individual to serve as monitor, each party will submit the names of three (3) persons

willing to serve in this capacity to the Court. The Court will then appoint the monitor from this proffered list.

Fees and expenses of the monitor will be borne by

defendants, and will be limited to a fee schedule agreed upon by the monitor and the defendants.

In carrying out the monitor's duties, consistent with the legitimate requirements of security, the monitor shall:

other

A. Have unobstructed access to staff, inmates or knowledgeable persons for interviews or written

communication regarding conditions within the institution.

B. Have complete and unobstructed access to files,

records, reports, memoranda or other documents within the defendants' custody for purposes of compliance with the terms of this Agreement.

C. Have the authority to retain experts as the

monitor may deem necessary, when such assistance is needed to

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adequately assess compliance. Local experts will be used when available. The experts' fees and costs will be paid by the defendants.
D. Have unobstructed access to tour and inspect the institutions. Ordinarily the monitor will inform the Sheriff of his plans to visit the jail, but may visit unannounced if necessary.
E. Not be subject to dismissal except upon agreement of both parties, or by the Court upon motion of one of the parties and a showing of good cause.
F. The monitoring period shall continue for twelve (12) months from the date of the approval by the Court of this Agreement. During that time the monitor shall prepare four (4) reports summarizing the monitor's findings and evaluations. Copies of such reports shall be provided to counsel for the parties and the Court.
G. Counsel for plaintiffs will be provided with notice of all inspections by the monitor, and notice of all types of the material required by and/or delivered to the monitor by the defendants. Counsel for the plaintiffs and defendants will also be given a summary of all materials reviewed by the monitor that would be otherwise relevant and discoverable under the Federal Rules of Civil Procedure.
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H. The monitor, with the agreement of both parties,

shall have authority tc extend the monitoring period for an

additions! six (6) months to allov; for compliance, in which

case the monitor will prepare two (2) more reports of findings

and evaluations.

I. After three (3) months, following the date of the

approval of this Agreement, and at the end of each subsequent

three-month period thereafter, the defendants will file with

the Court, the monitor and the plaintiffs a comprehensive plan

outlining the means by which they intend to comply with the

terms of this Agreement.

J. Nothing contained in this Agreement shall

preclude the monitor from consulting in confidence with either

party about suggestions or recommendations beyond the scope of

this Agreement.

Ill.

SUBSTANTIVE AGREEMENTS

In order to alleviate the overcrowded conditions

alleged to exist at the Dorchester County Jail, and to protect

the needs of the public, the parties agree that the standards

of the Maryland Commission on Correctional Standards shall be

met. The parties further agree as follows:

A. Pre-Trial Release Program. The Commissioners

agree to design and implement a pre-trial release program, as

described in Attachment A, no later than January 1, 1989. The

Commissioners further agree to provide adequate funding for

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this program which initially will require at least one full-time staff person to operate the program. Funding will be. increased as necessary to ensure adequate supervision of all persons participating in the program and to ensure participation in the program by all persons who meet the described qualifications.
B. Work Release Program. The Commissioners agree to design and implement a work release program, as described in Attachment B, no later than January 1, 1989. The Commissioners further agree to provide adequate funding for this program which initially will require at least one full-time staff person to operate the program. Funding will be increased as necessary to ensure adequate supervision of all persons participating in the program and to ensure participation in the program by all persons who meet the described qualifications.
The Commissioners shall, and are instructed and authorized by the Court to, implement such ordinances as may be necessary to ensure that all sentenced prisoners committed to the custody of the Sheriff and/or the Dorchester County Jail are eligible for consideration for said program.
C. Food Service. Food service will be in compliance with the American Correctional Association's Standards for Small Jail Facilities dated August 1987, at pages 44-46: Facility Standard LD50-124 up to and including Standard LD50-133.
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D. Population and Physical Conditions of the Jail. The existing Dorchester County Jail shall at no time be used to house more than 35 individuals. Said 35 individuals shall not be housed in the Dorchester County Jail unless all applicable fire safety codes and staffing requirements are met, as certified by the monitor and the fire safety engineer, Michael Thompson. The parties further agree that fire evacuation procedures acceptable to the monitor and the fire safety engineer shall be implemented immediately. The parties agree that the current Life Safety Code of the National Fire Protection Association applies to this institution.
In the event that all code regulations pertaining to fire safety cannot be met within ten (10) days of the signing of this Agreement, as certified by the monitor and the fire safety engineer, the parties agree that the population of the Dorchester County Jail will immediately be reduced to 24 individuals. The population will not be increased to the 35 individuals unless, as certified by the monitor and fire safety engineer, all applicable fire safety code regulations are met. In any event, all applicable fire safety code regulations shall be met by January 1, 1989. In the event that these standards are not met, as certified by the monitor and fire .safety engineer, all prisoners must be removed from the Dorchester County Jail.
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Immediately upon the signing of this Agreement, no individuals will be housed in the second-floor, women's dormitory area.
The parties further agree that in the interest of fire safety, there shall be direct, continuous supervision by staff throughout the institution where prisoners are housed. Supervision by television monitors may not be substituted for direct staff supervision. This supervision shall be documented.
E. Sanitation and Maintenance. The facility will be operated in accordance with the American Correction Association's Standards for Small Jail Facilities dated August 1987, specifically, Standards LD50-134 through LD50-138 and LD50-64.
The parties further acknowledge that it is the obligation of the facility to meet the applicable standards of the Maryland Commission on Correctional Standards.
F. Classification. The Dorchester County Jail shall comply with the relevant provisions of the Maryland Commission on Correctional Standards and further agree that aggressive, vulnerable, mentally ill or disabled persons, and persons designated for separation as a result of initial medical screening, shall not be housed with the general population.
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G. Recreation, Qafc.-Qf-Cell Time and Exexc.i.3£. Prisoners shall not be locked in their cells except at night, from "lights out" to morning wake-up, or for valid security and safety reasons which will be documented and reviewed by the monitor. The Sheriff, in consultation with and subject to the approval of the monitor, shall develop and implement a program to provide adequate prisoner exercise and recreation. The program shall include at least eight hours per day outside the tier and the opportunity for daily outdoor exercise. Appropriate equipment shall be provided for indoor and outdoor exercise and recreation. Adequate staff shall be provided for these programs.
H. Visitation. The Dorchester County Jail, in consultation with and subject to the approval of the monitor, shall develop a policy and program to ensure adequate visitation for all prisoners and shall provide such staff and facilities as are needed to accomplish the same. Visitation will be allowed at least two days per week, for not less than one-half hour per visit.
I. Medical/Mental Health/Dental. The Dorchester County Jail will comply with the standards of Maryland Commission on Correctional Standards with regard to health services.
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J. The Commissioners are instructed and authorized by the Court to obtain or raise such funds as are necessary to effect this Agreement.
K. Access to the Courts. The parties further agree to defer consideration of the issue of access to the courts and reserve this issue for trial, should the need arise. Said deferral shall exist for a minimum of 120 days, at which time the parties, having had the benefit of functioning under this Agreement for said period of time, shall discuss and work toward a resolution of the access issue. Should this not be possible, the parties agree to notify the Court and request a hearing on that limited issue only.
The parties further agree that they shall execute all necessary documents, releases and dismissals to effectuate the terms of this settlement.

Claudia Wright

TJ

ACLU National Prison Project 1616 P Street, N.W. Suite 340 Washington, DC 20236 (202) 331-0500

Attorney for Plaintiffs

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PRELIMINARILY APPROVED AND SO ORDERED

es P. Gillece, Jr.
Pi^er & Marbury 1100 Charles Center South 36 South Charles Street Baltimore, Maryland 21201 (301) 539-2530
Attorney for Commissioners
\ Daniel
Allen, Thieblot & Alexander 4th Floor The World Trade Center Baltimore, Maryland 21202 (301) 837-1140
Attorney for Sheriff

Howard States Distrii/cfctt Judge

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 District of Maryland (CM/ECF Live 2.5) - Docket Report

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?858832717041726-L_9...

U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:87-cv-03123-BEL

CLOSED

Dotson, et al v. Satterfield, et al Assigned to: Chief Judge Benson Everett Legg Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Michael N. Dotson
Plaintiff Wayne Musgrove and all others similarly situated

Date Filed: 11/19/1987 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Susan Goering American Civil Liberties Union of Maryland 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: goering@aclu-md.org TERMINATED: 12/10/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Goering (See above for address) TERMINATED: 12/10/1992 LEAD ATTORNEY

V. Defendant Donald Satterfield

represented by Daniel Karp Bryant Karpinski Colaresi and Karp PA 120 E Baltimore St Ste 1850 Baltimore, MD 21202 14107275000 Fax: 14107270861 Email: bkcklaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P Gillece, Jr Whiteford Taylor and Preston LLP Seven Saint Paul St Ste 1400 Baltimore, MD 21202-1626 14103478700

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District of Maryland (CM/ECF Live 2.5) - Docket Report
Defendant Lemuel Chester
Defendant Jack Colburne
Defendant Charles Dayton
2 of 8

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?858832717041726-L_9...
Fax: 14103479446 Email: jgillece@wtplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger D. Redden Piper Rudnick LLP 6225 Smith Ave Baltimore, MD 21209-3600 14105803000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address)
3/31/2006 4:32 PM

District of Maryland (CM/ECF Live 2.5) - Docket Report
Defendant William I. Wingate
Defendant Calvin Travers in their individual and official capacities
Defendant Phillip H. MCKelvey Sheriff of Dorchester County
ThirdParty Defendant American Justic Insurance Reciprocal ThirdParty Plaintiff Lemuel Chester

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?858832717041726-L_9...
LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY

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District of Maryland (CM/ECF Live 2.5) - Docket Report
ThirdParty Plaintiff Jack Colburne
ThirdParty Plaintiff Charles Dayton
ThirdParty Plaintiff William I. Wingate
ThirdParty Plaintiff

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?858832717041726-L_9...
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY

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District of Maryland (CM/ECF Live 2.5) - Docket Report

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Calvin Travers
V. ThirdParty Defendant American Risk Pooling Consultants, Inc. TERMINATED: 11/22/1993 ThirdParty Defendant The Coverx Corporation

represented by Daniel Karp (See above for address) LEAD ATTORNEY
James P Gillece, Jr (See above for address) LEAD ATTORNEY
Roger D. Redden (See above for address) LEAD ATTORNEY
represented by Daniel Karp (See above for address) TERMINATED: 11/22/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/26/1992 02/26/1992 02/26/1992
02/26/1992 03/02/1992 03/11/1992 03/20/1992

#

Docket Text

Case reopened (mdd, Deputy Clerk) (Entered: 02/28/1992)
FOR PLEADINGS 1 THRU 190 SEE ORIGINAL HARD DOCKET SHEET (mdd, Deputy Clerk) (Entered: 02/28/1992)
191 ORDER dated 02/26/92 "GRANTING" Motion of defendant County Commissioners of Dorchester County to join American Risk Pooling Consultants, Inc. and Cover X Corp. as third-party defendants to declaratory judgment action (See pleading #188 on hard docket sheet) ( signed by Judge Joseph C. Howard ) (c/m 02/27/92 vab) (mdd, Deputy Clerk) (Entered: 02/28/1992)
192 THIRD-PARTY COMPLAINT by Lemuel Chester, Jack Colburne, Charles Dayton, William I. Wingate, Calvin Travers against Amer. Risk Pooling, The Coverx Corp. (mdd, Deputy Clerk) (Entered: 03/09/1992)
193 THRID PARTY SUMMONS(ES) issued for Amer. Risk Pooling, The Coverx Corp. (mdd, Deputy Clerk) (Entered: 03/09/1992)
194 THIRD PARTY SUMMONS(ES) issued for Amer. Risk Pooling, The Coverx Corp. (slf, Deputy Clerk) (Entered: 03/17/1992)
195 MOTION with memorandum in support by Amer. Risk Pooling, The Coverx Corp. to Dismiss Third Party Complaint for lack of personal jurisdiction ,

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04/08/1992 04/08/1992 04/27/1992
04/30/1992
05/11/1992 09/08/1992 09/17/1992 09/18/1992 09/29/1992 10/15/1992 10/16/1992 11/04/1992 11/16/1992

Attachment, Affidavit, and Request for hearing. (c/s Mag. J. Chasanow) (mdd, Deputy Clerk) (Entered: 04/08/1992)
196 MOTION by defendant, County Commissioners of Dorchester County to Extend Time to respond to third party defendants motion to dismiss (mdd, Deputy Clerk) (Entered: 04/15/1992)
196 ORDER granting [196-1] motion to Extend Time to respond to third party defendants motion to dismiss no later than April 20, 1992. ( signed by Judge Joseph C. Howard ) (c/m 4/8/92 ph) (mdd, Deputy Clerk) (Entered: 04/15/1992)
197 RESPONSE by defendant County Commissioners of Dorchester County to [195-1] motion to Dismiss Third Party Complaint for lack of personal jurisdiction and Exhibit A. (c/s Mag. J. Chasanow and chambers) (mdd, Deputy Clerk) (Entered: 04/30/1992)
198 ORDER REFERRING CASE dated 04/24/92 to Magistrate Judge Deborah K. Chasanow for purpose of hearing and determination of non-dispositive pretrial mattes as ALL and hearing, proposed findings of fact, and making recommendations as to dispositive pretrial matters as ALL. ( signed by Judge Joseph C. Howard ) (c/m 04/30/92 hsg) (mdd, Deputy Clerk) (Entered: 05/08/1992)
199 REPLY by Amer. Risk Pooling, The Coverx Corp. to response of Third party plantiffs to their [195-1] motion to Dismiss (c/s) (mdd, Deputy Clerk) (Entered: 05/25/1992)
200 REPORT AND RECOMMENDATIONS of Magistrate Judge Deborah K. Chasanow . Case no longer referred to Magistrate Judge Deborah K. Chasanow Objections to R and R due by 9/18/92 (cag, Deputy Clerk) (Entered: 09/09/1992)
201 OBJECTION by Amer. Risk Pooling, The Coverx Corp. to [200-1] report and recommendations. (c/s) (cag, Deputy Clerk) (Entered: 09/19/1992)
202 OBJECTION by third party Plaintiff County Commissioners of Dorchester Co. to [200-1] report and recommendations. (cag, Deputy Clerk) (Entered: 09/21/1992)
204 RESPONSE by Lemuel Chester, Jack Colburne, Charles Dayton, William I. Wingate, Calvin Travers in opposition to [201-1] objection. (cag, Deputy Clerk) (Entered: 10/19/1992)
CASE reassigned from Judge Howard to Judge Benson E. Legg. (cag, Deputy Clerk) (Entered: 10/16/1992)
203 Reassignment letter mailed to Counsel. (cag, Deputy Clerk) (Entered: 10/16/1992)
Chambers conference set on November 18, 1992 at 4:00 before Legg, J. (mdd, Deputy Clerk) (Entered: 11/05/1992)
205 MEMORANDUM "NOTIFYING" counsel that conference with counsel in chambers scheduled for November 18, 1992 at 4:00 p.m. will instead by held on Thursday November 19, 1992 at 4:00 p.m. ( signed by Judge Benson E. Legg November 12, 1992). (c/m 11/13/92-bw) (mdd, Deputy Clerk) (Entered: 11/23/1992)

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11/23/1992 12/10/1992 12/10/1992 12/10/1992
12/23/1992 12/23/1992 01/11/1993
01/20/1993 11/22/1993 11/22/1993

Status conference held before Legg, J. (mdd, Deputy Clerk) (Entered: 11/25/1992)
206 MOTION by Michael N. Dotson and Wayne Musgrove for Susan Goering to Withdraw as Attorney . (mdd, Deputy Clerk) (Entered: 12/10/1992)
207 ORDER granting [206-1] motion of plaintiffs for Susan Goering to Withdraw as Attorney (Terminated attorney Susan Goering for Wayne Musgrove, attorney Susan Goering for Michael N. Dotson ( signed by Judge Benson E. Legg November 23, 1992). (c/m 12/9/92-bw) (mdd, Deputy Clerk) (Entered: 12/10/1992)
208 MEMORANDUM AND ORDER granting [206-1] motion of plaintiffs for Susan Goering to Withdraw as Attorney; "OVERRULING" objections of third-party defendant to Mag. Chasanow's report and recommendations; "ACCEPTING" Mag. Chasanow's report and recommendatation dated 9/8/92; denying [195-1] motion of the third-party defendants to Dismiss Third Party Complaint for lack of personal jurisdiction; "DIRECTING" Mr. Karp to advise this court, in writing, on or before 12/11/92, of the proper party defendants and file a line amending the pleadings, as therein set forth; "DIRECTING" Mr. Karp to respond to the declaratory judgment on or before 12/23/92 and Ms. Phillips and Mr. Gillece to file a rebuttal on or before 1/8/93; and "BIFURCATING" the proceedings, as therein set forth ( signed by Judge Benson E. Legg December 8, 1992). (c/m 12/9/92-bw) (mdd, Deputy Clerk) Modified on 12/14/1992 (Entered: 12/10/1992)
209 ANSWER to Complaint by Amer. Risk Pooling (American Justice Insurance Reciprocal) (Attorney Daniel Karp). (Received on 12/16/92) (mdd, Deputy Clerk) Modified on 12/23/1992 (Entered: 12/23/1992)
210 MOTION with memorandum in support by Amer. Risk Pooling (American Justice Insurance Reciprocal) to Dismiss , or in the alternative for Summary Judgment , attachments and request for hearing. (c/s) (mdd, Deputy Clerk) Modified on 12/23/1992 (Entered: 12/23/1992)
211 MEMORANDUM by Lemuel Chester, Jack Colburne, Charles Dayton, William I. Wingate and Calvin Travers in opposition to [210-1] motion of third party defendant, American Justice Insurance Reciprocal, to Dismiss and [210-2] motion of the third party defendant, American Justice Insurance Reciprocal, for Summary Judgment and Exhibits A thru G. (c/s) (mdd, Deputy Clerk) (Entered: 01/12/1993)
212 REPLY by Amer. Risk Pooling to response of third party defendant to [210-1] motion of Amer. Risk Pooling to Dismiss and [210-2] motion of Amer. Risk Pooling for Summary Judgment, attachments and reques for hearing. (c/s) (mdd, Deputy Clerk) (Entered: 01/20/1993)
213 MOTION by Amer. Risk Pooling to substitute third-party defendants . (mdd, Deputy Clerk) (Entered: 11/23/1993)
213 ORDER granting [213-1] motion of third-party defendant to substitute third-party defendants ( signed by Judge Benson E. Legg Noember 19, 1993). (c/m 11/19/93-bw) (mdd, Deputy Clerk) (Entered: 11/23/1993)

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01/07/1994 01/07/1994
01/07/1994 01/24/1994 01/27/1994 02/01/1994 03/03/1994 11/04/1994

214 MEMORANDUM ( signed by Judge Benson E. Legg 1/7/94) (c/m 1/7/94-bw) (mdd, Deputy Clerk) (Entered: 01/10/1994)
215 ORDER granting [210-2] motion of third-party defendant for Summary Judgment; "ENTERING" judgment in favor of third-party defendant and against third-party plaintiffs; and "DIRECTING" the clerk to close this case ( signed by Judge Benson E. Legg 1/7/94) (C/M 1/7/94-BW) (MICROFILMED 1/10/94) (mdd, Deputy Clerk) (Entered: 01/10/1994)
Case closed. (mdd, Deputy Clerk) (Entered: 01/11/1994)
216 NOTICE OF APPEAL by Lemuel Chester, Jack Colburne, Charles Dayton, William I. Wingate, Calvin Travers . Fee Status: filing fee paid Appeal record due on 2/23/94 (c/s 1/26/94 akc) (jmk, Deputy Clerk) (Entered: 02/01/1994)
217 Copy of Docketing Statement of Appellants. (jmk, Deputy Clerk) (Entered: 02/10/1994)
Notice of appeal and certified copy of docket to USCA: [216-1] appeal by Calvin Travers, William I. Wingate, Charles Dayton, Jack Colburne, Lemuel Chester (d/s & TPOF mailed to counsel). (jmk, Deputy Clerk) (Entered: 02/01/1994)
218 Certificate of Clerk certifying record as complete for appeal purposes for [216-1] appeal (copy) (jmk, Deputy Clerk) (Entered: 03/03/1994)
219 JUDGMENT OF USCA (certified copy) Re: [216-1] appeal by Calvin Travers, William I. Wingate, Charles Dayton, Jack Colburne, Lemuel Chester "Affirming" the Judgment of the District Court, bill of costs and copy of opinion attached hereto. (mdd, Deputy Clerk) (Entered: 12/09/1994)

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 937 F.2d 920 (1991)
Michael N. DOTSON, Wayne Musgrove, and all others similarly situated, PlaintiffsAppellees, v.
Lemuel CHESTER; Jack Colbourne; Charles Dayton; William I. Wingate; Calvin Travers, in their individual and official capacities as members of the Board of County Commissioners
of Dorchester County, Defendants-Appellants, and Donald Satterfield; Phillip H. McKelvey, Sheriff of Dorchester County, Defendants (Two
Cases).
Nos. 90-6858, 90-6900.
United States Court of Appeals, Fourth Circuit.
Argued March 4, 1991. Decided June 5, 1991. As Amended June 20 and July 11, 1991.
921 *921 James Patrick Gillece, Jr., argued (Roger D. Redden and Lynett M. Phillips, on brief), Piper & Marbury, Baltimore, Md., for defendants-appellants.
Nevett Steele, Jr., Nevett Steele, Jr., P.A., argued (Patricia L. Ingram, Whiteford, Taylor & Preston, on brief), Towson, Md., for plaintiffs-appellees.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BRITT, District Judge for the Eastern District of North Carolina, sitting by designation.
MURNAGHAN, Circuit Judge:
The Dorchester County Commissioners appeal from a district court order holding the County responsible for attorneys' fees and expenses allocated to the Sheriff of the Dorchester County Jail in a suit over jail conditions brought pursuant to 42 U.S.C. § 1983. The suit had been settled by a stipulated agreement without determining whether the County or the State should pay the Sheriff's portion in the event that the Sheriff did not pay.[1] The Commissioners also appeal from a court order requiring the payment of additional attorneys' fees and costs attributable to the appellees' attempts to collect the original fee award first from the Sheriff, and subsequently from the County.
We agree with the district court's conclusion that, under state law and the county code, the Sheriff possesses final policymaking authority for the County in his operation of the County Jail, and the County can be held responsible for attorneys' fees and expenses arising out of his actions. In addition, we find that the judge acted within his discretion in awarding the additional attorneys' fees and expenses accrued in collection efforts.
922 *922 I.
On November 19, 1987, Michael Dotson and other inmates (the "inmates") of the Dorchester County Jail (the "County Jail") filed a 42 U.S.C. § 1983 suit against the County Commissioners of Dorchester County (the "Commissioners") and Jail Administrator, Donald Satterfield, alleging unconstitutional conditions in the County Jail and seeking declaratory and injunctive relief. On February 1, 1988, after the Commissioners brought a motion under Federal Rule of Civil Procedure 19 for failure to join a necessary party, the complaint was amended to include Sheriff Phillip H. McKelvey. On October 3, 1988, the parties settled the case by a Settlement Agreement which permitted allocation of legal fees and costs between the Commissioners and the "Sheriff."[2] For the purposes of the Settlement Agreement, the "Sheriff" referred to the Sheriff and the Jail Administrator; we

shall follow suit. A month later, the district court approved the Settlement Agreement. On November 23, the judge concluded that, under 42 U.S.C. § 1988, the inmates were the "prevailing party" and awarded them $101,420.75 in attorneys' fees and $30,220.62 in expenses.
On January 20, 1988, the judge allocated the fees proportionally between the Commissioners and the Sheriff according to his perception of their relative responsibility. The Sheriff bore approximately four-fifths of the fees and costs; the Commissioners bore the remaining one-fifth.[3] The judge explained that the division reflected his belief that the Commissioners were "not responsible for the supervision, management, regulation and day-to-day control of the Dorchester County Jail." The Commissioners paid their portion.
The Sheriff did not pay his share. The inmates attempted to garnish the Sheriff's assets; however, they discovered that he had insufficient assets in his official capacity. On April 3, 1989, the inmates brought a writ of garnishment against Dorchester County's bank account to obtain the amount allocated to the Sheriff. The district court quashed the writ, apparently believing that the Sheriff's two insurance policies would cover the necessary sum. The court later acknowledged that it had "encouraged counsel to pursue" recovery from the insurance policies. Memorandum Op., Aug. 29, 1990, at 2. After further legal investigation, however, the inmates ultimately concluded, and the judge appears to have accepted, that recovery would not be forthcoming from the insurance carriers.
On April 20, 1990, the inmates once again began to look to the County's assets and notified the Commissioners by letter of their intentions to garnish the bank account.[4] On April 29, the Commissioners moved for immediate injunctive relief to prohibit garnishment. The judge denied the motion on June 19, 1990, in an order holding that "Dorchester County is a municipality subject to liability under 42 U.S.C. § 1983 and that Sheriff McKelvey is a policymaker for the county when operating the Dorchester County Jail...." Memorandum Op., June 19, 1990, at 1. 923 [5] The *923 Commissioners appealed to the Fourth Circuit.
On June 27, 1990, the district court quashed the inmates' second attempt to garnish in light of the appeal. The court, however, did not stay the June 19, 1990 order.
On July 16, 1990, the inmates asked the district court to award fees and expenses pursuant to 42 U.S.C. § 1988 for their attempts to "execute the judgments rendered against Sheriff McKelvey." On August 29, the district court found the Sheriff and the County responsible for $31,773.90 in supplemental fees and $1451.42 in costs.[6] The court did not apportion the award, noting "this court has already held that Dorchester County is ultimately liable for any judgment entered against these defendants." Memorandum Op., August 29, 1990, at 9-10. The Commissioners have also appealed that order.
The appeal before us consequently involves (1) the order that the County was ultimately liable for the fee awards against the Sheriff and (2) the order that the County was responsible for additional attorneys' fees and costs arising from the inmates' attempt to collect the initial fees judgment against the Sheriff.
II.
On appeal the Commissioners first argue that the Sheriff is a state policymaker under state laws and regulations when he is operating the County Jail and the State is liable for the Sheriff's portion. The Commissioners insist that they have only limited power over the County Jail under state law, that the State sets standards for the County Jail, and that the County's funding responsibility cannot create County liability. The Commissioners also claim that the Settlement Agreement prevented the County from being liable for the Sheriff's portion. Second, the Commissioners argue that 42 U.S.C. § 1988 does not permit what they term "third party debt collection efforts."
The inmates, in turn, claim that the Sheriff is a county policymaker when operating the County Jail. The inmates argue that, even if the Sheriff is a state official in some respects, he is, nevertheless, the final policymaker for the County with respect to the County Jail and therefore, can create county liability. The inmates also allege that the County Jail is a county facility over which the Sheriff has management responsibilities, undiminished by state guidance. In addition, the inmates claim that § 1988 permits the award of attorneys' fees arising from attempts to

collect the original award. They argue that a contrary result would render meaningless the original right to attorneys' fees.
III.
The Settlement Agreement's provision on fee apportionment is not determinative of the appeal; it does not prevent the County from being liable for the Sheriff's portion. The Settlement Agreement apportioned fees between two entities 0907 the Commissioners and the Sheriff. The apportionment may have been desirable at the time, and agreed to by the inmates, because of the widely held belief that the Sheriff's insurance policies would cover the Sheriff's portion. The apportionment, however, was not intended to determine liability between the County and the State. It was concerned only with the method of collection, not intending to limit the responsibility of the County by foreclosing liability should the Sheriff fail to pay. Until the inability to collect on the insurance policies became apparent, the precise dimensions of the § 1983 issue did not confront the parties. The Settlement Agreement does not prevent the County from bearing ultimate responsibility for the Sheriff's portion.
The inmates also seek to garnish the County's bank account. Although the decision that the County is 924 responsible does affect the Commissioners because they are the official representatives of the County, *924 such
a technical decision is not the same as one concluding that the Commissioners have additional liability because their policies alone created the situation. See City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). We must therefore confront the question, should the State or County be liable for the judgment rendered against the Sheriff arising out of the Sheriff's operation of the County Jail?
Under 42 U.S.C. § 1983, counties, like other local government entities, can be sued for violations of constitutional rights. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n. 12, 106 S.Ct. 1292, 1300 n. 12, 89 L.Ed.2d 452 (1986). The violation, however, must bear some relation to the county's "policy or custom." Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; see City of St. Louis v. Praprotnik, 485 U.S. 112, 124 n. 1, 108 S.Ct. 915, 924 n. 1, 99 L.Ed.2d 107 (1988). The contours of § 1983 municipal liability have been delineated in cases arising after Monell. See Praprotnik, 485 U.S. at 123, 108 S.Ct. at 923-24. County liability for the Sheriff's operation of the County Jail depends on whether the Sheriff had final policymaking authority for the County over the County Jail. In Praprotnik, the Court, in an opinion written by Justice O'Connor, upheld the "guiding principles" established in Pembaur:
First, ... municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability. Third, whether a particular official has "final policymaking authority" is a question of state law. Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business.
Id. at 123, 108 S.Ct. at 924 (citations omitted) (emphasis in original). Justice O'Connor reiterated that "the identification of policymaking officials is a question of state law," id. at 124, 108 S.Ct. at 924, and, although noting that "state law will [not] always speak with perfect clarity," id. at 125, 108 S.Ct. at 925, she insisted that "state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." Id. She cautioned against "egregious attempts by local governments to insulate themselves from liability for unconstitutional policies...." Id. at 127, 108 S.Ct. at 926. The Praprotnik test indicates liability relies more on final policymaking authority than on the technical characterization of an official as a state or county employee. Hence, a "corollary proposition" exists, namely, "whether an official acts on behalf of the county or the state is similarly a question of state law." Owens v. Fulton County, 877 F.2d 947, 950 (11th Cir.1989).
Other circuit courts have searched state and local laws to determine whether the actions of a county sheriff represent final policymaking authority for the county, thereby creating county liability. In Parker v. Williams, 862 F.2d 1471 (11th Cir.1989), the court wrote:

The relationship between Amerson [the sheriff] and the county in this case is central to the

evaluation of whether the county can be liable for Amerson's actions. If in hiring and training

Williams, Sheriff Amerson was acting as the final repository of county authority, then the county

may be liable for constitutional violations arising from the sheriff's actions. Although the Alabama

Supreme Court stated that Amerson was an employee of the state, that does not resolve the issue

of whose duty Amerson was implementing when he hired Williams. Amerson's functional role in

conducting his personnel policy is more significant than his technical status as an employee of the

925

state. The pivotal point is whether *925 Amerson was exercising county power with final authority.

Id. at 1478 (citations omitted). In the appellate decision in Pembaur v. City of Cincinnati, 746 F.2d 337 (6th Cir.1984), rev'd, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the court stated that Ohio law "clearly indicate[s] that the Sheriff can establish county policy in some areas. We conclude, therefore, that, in a proper case, the Sheriff's acts represent the official policy of Hamilton County and, as such, may be the basis for § 1983 liability." Id. at 341. Although the Supreme Court reversed in Pembaur, the Court stated that it did not question the conclusion that under appropriate circumstances the county sheriff could establish county policy. 475 U.S. at 483 n. 12, 106 S.Ct. at 1300 n. 12. And in Blackburn v. Snow, 771 F.2d 556 (1st Cir.1985), the court decided that "state law expressly designates the Sheriff as the individual responsible for promulgating security policy with respect to correction facilities" and that the Sheriff had "appointed himself superintendent of the County's jails during his tenure as Sheriff...." Id. at 571. The court concluded that "there could hardly be a clearer case of county liability...." Id. The court added:

What the County misunderstands is that it is not because county officials other than the Sheriff were "involved" in the promulgation of the strip search, that it is liable under Monell, nor is it because county officials failed properly to "oversee" the Sheriff. Rather, it is liable because the Sheriff was the county official who was elected by the County's voters to act for them and to exercise the powers created by state law. Accordingly, the Sheriff's strip search policy was Plymouth County's policy, and the County must respond in damages for any injuries inflicted pursuant to that policy.

Id. (emphasis in original); see Turner v. Upton County, Tex., 915 F.2d 133, 136 (5th Cir.1990) (concluding that the "county sheriff is the county's final policymaker in the area of law enforcement ... by virtue of the office to which the sheriff has been elected...."), cert. denied, ___ U.S. ___, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); Zook v. Brown, 865 F.2d 887, 895 (7th Cir.1989) (concluding that by county delegation and approval, the sheriff was responsible for establishing final county policy on discipline); Anderson v. Gutschenritter, 836 F.2d 346, 349 (7th Cir.1988) (concluding that the sheriff was responsible for running the county jail and therefore his action represented county policy); Weber v. Dell, 804 F.2d 796, 803 (2d Cir.1986) (concluding that the sheriff established "county jail policy" regarding strip searches and therefore the county was liable), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Mosier v. Robinson, 722 F.Supp. 555, 556-57 (W.D.Ark.1989) (concluding that the county was a proper party to a suit against the sheriff for his conduct at the jail where "a county policy of condoning violations by the sheriff can be inferred"); Farris v. Moeckel, 664 F.Supp. 881, 891 (D.Del.1987) (concluding that the "relationship between the County and the Sheriff's Department to be so close as to render the County liable for any unconstitutional policies, practices or customs instituted by the sheriff...."); see also Gobel v. Maricopa County, 867 F.2d 1201, 1207-09 (9th Cir.1989) (surveying state law and concluding that the plaintiffs might be able to prove that the county attorney "was acting as a policymaker for Maricopa County ... and that Maricopa County is therefore liable if the carrying out of that policy violated the plaintiffs' civil rights.").

We turn to examine Maryland and Dorchester County law to determine whether the Sheriff possessed final policymaking authority for the County when managing and operating the County Jail. We bear in mind Justice O'Connor's recognition that the "identification of policymaking officials is not a question of federal law, and it is not a question of fact in the usual sense.... [O]ne may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies." Praprotnik, 485 U.S. at 124-25, 108 S.Ct. at 924. Our exploration passes through case law, the county code, state statutes, and state regulations.

926

*926 The district court judge found that the County had the authority to operate the County Jail and that the Sheriff possessed final policymaking authority over the County Jail for the County. He relied on the report and recommendation of the magistrate judge which he "adopted ... in full" in reaching his conclusion. He cited the magistrate judge's statement that a "symbiotic relationship" exists in Dorchester County: "While the sheriff, an independently elected official, is charged with the care and custody of prisoners committed to him, he cannot operate without the fiscal cooperation and agreement of the Board of County Commissioners." Memorandum Op., June 16, 1990, at 6 (citing August 19, 1988 Report and Recommendation of Magistrate Judge Chasanow at 40).[7] He then added, "The Commissioners maintain the Jail through local funding; they have delegated the responsibility of operating the Jail to the Dorchester County Sheriff, the de facto administrator of the Jail." Id.
The Commissioners dispute this finding, arguing that the Sheriff is a state official when managing the County Jail. [8] They argue that Maryland courts have recognized the Sheriff as a state official. They claim that, as a noncharter county, the County has no authority "to operate, manage or even build a jail," only the responsibility to fund "the cost of jail maintenance, prisoner supplies and staff salaries," which alone does not create liability. They contend that state regulations set policy for the management and operation of county jails, that only a state commission can close the jail for failures to comply with mandatory standards, and that only the Governor can remove the Sheriff.
The inmates argue that the Sheriff was sued as a county policymaker under the Dorchester County Code, which places responsibility for the County Jail in the hands of the Sheriff. They claim that, even if the Sheriff is a state officer in certain capacities, he is the final county policymaker when operating the County Jail. The inmates argue that the County cannot avoid liability by vesting authority in a "state" official. The inmates contend that, under state law, the County Jail is, was built as, and has been funded as, a "local detention facility" not operated by the State Department of Corrections. They claim that the Maryland Commission on Correctional Standards sets only minimum standards for non-state operated jails, and the County is ultimately responsible for the County Jail's conditions.
Because our inquiry focuses on the entity operating the County Jail, i.e., whether the Sheriff acts "as the final repository of county authority," Owens, 877 F.2d at 950, Maryland cases discussing the employment status of the sheriff are not dispositive. In Rucker v. Harford County, 316 Md. 275, 558 A.2d 399 (1989), the Maryland Court of Appeals concluded that a county sheriff was a state employee for the purposes of tort liability. Id. at 402. Rucker, however, does not compel the conclusion that the Sheriff, when managing the County Jail, is a state policymaker. Rucker addressed an incident where a sheriff and state police, in attempting to stop an escaping toll dodger, injured a bystander. Despite its holding, the court stated, "[t]his conclusion does not mean that, for some 927 purposes and in some contexts, a sheriff may not be treated as a local government *927 employee." 316 Md. at 289, 558 A.2d at 406. The court explained,
The control of the functions of the sheriffs by State common law, by the General Assembly and by the judiciary, coupled with the statewide nature of many of the sheriffs' duties, strongly reinforce the view that sheriffs are State rather than local government officials.
316 Md. at 287-88, 558 A.2d at 405. The Sheriff's activities which we investigate 0907 operating the County Jail which houses county prisoners, pursuant to county regulations, and funded by the County 0907 differ from "the statewide nature" of the Sheriff's duties involved in Rucker. See Soderbeck v. Burnett County, Wis., 821 F.2d 446, 451 (7th Cir.1987) (concluding that the Wisconsin law made the county sheriff "solely an officer of the state when fulfilling his constitutional obligations"); Himple v. Moore, 673 F.Supp. 758, 7598 (E.D.Va.1987) (concluding that the sheriff was not a county officer under Virginia law when arresting individuals and the county could not be held liable for his acts). Moreover, at the beginning of Rucker, the court stated,
we wish to emphasize that we answer this question as a matter of Maryland law only. Whether the Harford County Sheriff's Office is to be regarded as a State or local government agency, and whether the Sheriff and Deputy Sheriffs are to be regarded as State or local government employees, for the purposes of the Eleventh Amendment or 42 U.S.C. § 1983, are federal law issues which are not before this Court....

Rucker, 316 Md. at 280-81, 558 A.2d at 401. Interestingly, after Rucker, the Maryland legislature appears to have ensured that, regardless of the characterization of the Sheriff, the counties would pay for sheriffs' torts. The Rucker court had concluded that the Local Government Tort Claims Act imposed "no obligation on counties to pay for liability claims rendered against sheriffs...." 316 Md. at 294, 558 A.2d at 408. The legislature amended the state law, 1990 Md.Laws ch. 508, to require the counties either to carry insurance to cover claims against sheriffs or to reimburse the State for the costs of paying and defending claims.
We do not quarrel with the fact that, in some respects, the Sheriff is bound by state law. The Maryland Constitution creates the Sheriff's office. Md. Const. art. IV, § 44. The Governor fills vacancies by appointment. Id. [9] State law requires the Sheriff to "safely keep all persons committed to his custody," Md.Ann.Code art. 87, § 45, and to "provide food and board for all prisoners committed to [his] ... charge." Id. § 46.
State statutes, however, do not specifically empower the Sheriff to build, fund, and operate the County Jail. The provision setting forth the duties and payment for sheriffs in particular counties states only with respect to Dorchester County:
(1) The Sheriff of Dorchester County shall receive a salary ... and be allowed the actual cost of maintenance of automobiles and the county jail. The Sheriff shall appoint a chief deputy sheriff, one assistant deputy sheriff, other deputies, and a jail matron if approved by the County Commissioners. A deputy or matron shall receive the compensation provided in the county budget.
(2) If the Sheriff becomes incapacitated and the position of chief deputy is vacant, the County Commissioners shall appoint a chief deputy sheriff.
Md.Cts. & Jud.Proc.Code Ann. § 2-309(k). Moreover, the precise dimensions of sheriffs' duties in Maryland frequently have been established by county codes or other local laws. See Soper v. Montgomery County, 294 Md. 331, 338, 449 A.2d 1158, 1161-62 (1982); Baumgartner v. State, 21 Md.App. 251, 258, 319 A.2d 592, 597-98 928 (1974); Beasley v. Ridout, 94 Md. 641, 656-57, *928 52 A. 61, 65 (1902); The Maryland Sheriff v. Modern and Efficient Administration of Justice, 2 Balt.L.Rev. 282, 288 (1973). Thus, the Sheriff is not always a state employee or always a county employee. He may, on occasion, be both, or sometimes one and sometimes the other. It all depends on the particular function the Sheriff is performing.
If Dorchester County were a charter county the County would be liable for the Sheriff's operation of the jail. Charter ("home-rule") counties are expressly granted the power to "establish, maintain, regulate and control county jails, and county houses of correction or detention and reformatories, and to regulate all persons confined therein...." Md.Ann.Code art. 25A, § 5(C). In charter counties, state statutes confer authority on the counties to transfer control of the jail from the sheriff to a county warden. Md.Ann.Code art. 87, § 48; see Epps v. Levine, 457 F.Supp. 561, 565 n. 2 (D.Md.1978). Section 48 permits the councils of charter counties to
provide for the appointment of a qualified person as jailor or warden of the county jail.... A jailor or warden appointed shall be responsible for the safekeeping, care and feeding of all prisoners in the jail.... These provisions do not affect the powers and duties of the Sheriff of the county with respect to the safekeeping and custody of all prisons, except when the prisoners are in jail....
We have no doubt but that sheriffs are final policymakers for counties when operating jails in charter counties.
Dorchester County has not adopted a charter; instead, Dorchester County is run by a county commission. The Commissioners have argued that, because Md.Ann.Code art. 25, § 3, listing enumerated powers given to commission counties, does not confer a parallel power to establish, maintain, and regulate a county jail, noncharter counties do not possess such powers. The argument neglects the beginning language of § 3: "The county commissioners of each county in this State, in addition to, but not in substitution of, the powers which have been or may be granted to them, have the following express powers." Md.Ann.Code art. 25, § 3(a)(1). Section 6 of article 25 emphasizes the error in concluding that the absence of a provision in § 3 addressing county maintenance and operation of the county jail is determinative. Section 6 entitled "Section 3 conveys supplementary authority," states:

The provisions as set forth in § 3 hereof are intended to supplement or to supply authority in the county commissioners of various counties to do and perform various acts, matters and things not otherwise provided for by law.... Nothing contained in § 3 shall in any manner be considered a limitation or restriction on any existing powers and authority granted the county commissioners of any county nor shall any broader or more unrestricted power or procedure vested in or authorized to the county commissioners of any county with respect to any matters specifically provided for by a public local law be deemed in any manner limited by any of the provisions of § 3.
Md.Ann.Code art. 25, § 6 (emphasis added).
Both the Dorchester County Code (the "Code") and state law indicate that Dorchester County has the authority to establish, maintain, and regulate the County Jail. The Code demonstrates that, although the Sheriff, a constitutional officer, now has custody of the County Jail, the County Jail remains a county institution and the County merely has placed final policymaking authority in the Sheriff. Indeed, from the day the County built the County Jail, the County has been responsible for its conditions and operation.
According to the magistrate judge's 1988 findings, the County Jail "is over 100 years old and in poor physical condition." Report and Recommendation at 34. We have searched backwards to discover the relation between the County, the Sheriff, and the County Jail one hundred years ago. The 1888 Code contained sections relating to the Sheriff and the County Jail. Only three sections address the Sheriff. Section 282 stated that the Sheriff 929 "shall not be entitled to receive more than thirty cents a day for keeping and boarding each prisoner...." *929 Section 283 reimbursed the Sheriff for expenses in transferring prisoners and section 284 paid the Sheriff a fee for "executions issued by any justice of the peace." The section relating to the County Jail provided that
[t]he county commissioners ... shall appoint a nonpartisan board ... to act as jail supervisors without compensation ...; ... they shall have supervision and control of the jail and adjoining grounds ...; they shall pass and enforce all necessary rules for the protection of the health, cleanliness and comfort of the inmates, and for the regulations of all matters connected with the general management of said jail.
1 Md.Code of Pub.Local Laws art. 10, § 191 (1888).[10] In 1888, the County empowered a nonpartisan board to make final policy decisions for the County about the conditions and management of the County Jail.
The 1930 Code altered the section relating to the County Jail and abolished the nonpartisan board:
The president of the County Commissioners ..., the county treasurer and the State's Attorney for said county, for the time being, shall act as jail supervisors for said county without pay; they shall have supervision and control of the jail and adjoining grounds ...; they shall pass and enforce all necessary rules for the protection of the health, cleanliness and comfort of the inmates, and for the regulation of all matters connected with the general management of said jail....
1 Md.Code of Pub.Local Laws art. 20, § 338 (1930). The section also empowered the "jail supervisors" to "make such by-laws, rules and regulations as they may think necessary and proper, for the clothing, regulation, management, control and conduct" of prisoners engaged in work or manual labor. Id. The sections regarding the Sheriff remained constant, although the entitlement was raised to seventy-five cents. Id. at §§ 501-3. In 1930, the County, through the President of the County Commissioners, operated and managed the County Jail.
By 1961, however, interim amendments, passed in 1939, 1939 Md.Laws ch. 777, had reduced the actual involvement by the County Commissioners in the County Jail by transferring certain responsibilities to the Sheriff. The language referring to jail supervisors and their management responsibilities disappeared. The rest of the language remained; however, the "Sheriff" was substituted for the 1930 Code's reference to "jail supervisors": "said Sheriff is hereby empowered to make such by-laws, rules and regulations as he may think necessary and proper, for the clothing, regulation, management, control and conduct" of prisoners engaged in work or manual labor. Md.Code of Pub.Local Laws, Dorchester County § 321 (1961). Consistent with the transfer of management responsibilities from a County appointed board to the County Sheriff, the sections relating to the Sheriff were amended. The Commissioners' old duty of funding was retained: "It shall be the duty of the County

Commissioners to pay for all supplies and provisions necessary, in their judgment, for the support and maintenance of all persons committed to the jail...." § 335. A lengthy section outlining the Sheriff's new duties appeared:

It shall be the duty of the sheriff to keep a correct and full statement ... of all persons committed to

the jail ... [which] shall at all times be open to the inspection of the County Commissioners; and at

the first meeting of the County Commissioners in each month the sheriff shall make to them,

under oath, a full and complete report of all persons confined in the jail ...; the said sums of money

930

hereinbefore authorized to be levied *930 and paid the sheriff shall be in full of all claims of said

sheriff against Dorchester County, or said County Commissioners for his care, labor, responsibility

and expenses in discharging the duties of this office, including the keeping safely in jail of

prisoners committed to his custody; supplying to said prisoners the provisions furnished for them,

by the County Commissioners, properly cooked and served in a proper and sanitary condition as

hereinbefore provided and keeping the jail in a clean and tidy condition....

§ 356 (emphasis added). To the present, this division remains largely intact. See Md.Code of Pub.Local Laws, Dorchester County §§ 14-1, 20-1-5 (1974). Indeed, the 1974 Code provision relating to the County Jail contains the subtitle, "Sheriff to supervise jail." § 14-1.

Regardless of the County's reasons for transferring the final policymaking authority from county citizens to the County Sheriff (also, generally, a Dorchester County citizen), the historical changes in the Code demonstrate that the County Jail has been and remains a county facility. Although we recognize Rucker's caution that county funding is "not dispositive," 316 Md. at 281-82, 558 A.2d at 402, we emphasize that the County has not contested its obligation, "to fund the maintenance and operation of the jail."[11] The County cannot escape liability for its aging jail by slowly transferring the final policymaking authority to an officer who, on occasion, has been considered a state employee.

The conclusion that the Sheriff acts with final policymaking authority for Dorchester County is buttressed by state statutes. Various provisions state, assume, or imply that county jails are operated by counties, not by the State through sheriffs. Article 27 § 705(a) states that a "local detention center means any jail ... operated by one or more counties...." Md.Ann.Code art. 27, § 705(a) (emphasis added). Another section states the "governing body of one or more counties may establish and maintain a local detention center and may enter into a written agreement with each other as to allocation of responsibility, construction, operation, maintenance, and appointment of personnel. The State may, but need not be a party to any such agreement." § 705(b) (emphasis added). The listing of state prison facilities does not include county jails. See Md.Ann.Code art. 27, § 689. The State only may place state prisoners in county jails "pursuant to express authorization or by agreement between the local political subdivision and the Division of Correction," see 62 Op.Att'y Gen. 829, 837-37 (1977), and the State must reimburse the counties. Md.Ann.Code art. 27, § 690. If a community adult rehabilitation center is leased or purchased by the county pursuant to state authorization, Md.Ann.Code art. 27, § 710(b), it "shall be operated by the county, and the director, staff, and other employees of the center shall be employees of the county." Md.Ann.Code art. 27, § 710A(a). And if the County chooses to replace the County Jail with a prison farm, 931 Md.Ann.Code art. 25, § 128, although operational responsibilities *931 remain with officials who operate the County Jail, § 130(c), the County Commissioners have the explicit power to determine whether the prisoners shall be paid compensation during imprisonment, § 131, to choose the crops to be planted, and to prepare the budget for "the care, operation and maintenance of the property committed to its care...." § 133. None of these sections create any impression other than that the County Jail is a county operated jail.

In addition, distinctions within the statute establishing the Commission on Correctional Standards, Md.Ann.Code art. 41, § 4-401, support our conclusion that the County is liable for the Sheriff's operation of the County Jail.[12] Section 4-401 defines "local correctional facility" as "all places of correctional confinement or correctional institutions within the State of Maryland, primarily operated by local governments." § 4-401(a)(6) (emphasis added), whereas "state correctional facilities" are institutions "primarily operated by the Maryland State government," presumably those facilities operated by the Department of Corrections listed under Md.Ann.Code art. 27, § 689. The Commission "[s]hall advise the Secretary regarding all mandatory and approved standards for state and local correctional facilities." Md.Ann.Code art. 41, § 4-401(d)(1). "Mandatory standards" "shall apply to

all State and local correctional facilities." § 4-401(b)(7). "Approved standards" "shall apply to all State correctional facilities and may be adopted, in whole or in part, for use by any local correctional facility." § 4-401(b)(8) (emphasis added). All jails within the State are to comply with the mandatory standards, addressing issues such as inmate rights and security. Compliance does not depend on whether the jail is run by a sheriff, a jail warden, the State, a county, a combination of counties, a city, or anyone else.
The Commissioners have claimed that, because of these standards, the State and the State alone controls the Sheriff's operation of the County Jail. The conclusion is erroneous. According to state regulations, the Commissioner's audit is forwarded to "the managing official and other authorities of the jurisdiction." Md.Regs.Code 12.14.01.02(c). The broad standards often require only the establishment of written policies to cover situations, leaving open room for interpretation and sheriff and county responsibility for implementation. See Weber v. Dell, 804 F.2d 796, 803 (2d Cir.1986) (holding that a state administrative prison code requiring thorough searches did not mandate the sheriff's decision to implement a strip search policy, and, therefore, the county, not the state, was liable), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987).
Moreover, the Commission only possesses discretionary authority to order operations to cease at a jail in violation of the mandatory standards. Md.Ann.Code art. 41, § 4-401(d)(6). The regulations provide that the Secretary "may, at his discretion, exercise any of the powers ... with respect to final decisions after a hearing on the closure of a facility or the cessation of operations." Md.Regs.Code 12.14.01.08. The State probably cannot be held responsible for failures to close noncompliant county jails. For example, in Reid v. Kayye, 885 F.2d 129, 131 (4th Cir.1989), the court held that North Carolina had no duty to remedy challenged county jail conditions under § 1983 despite state laws requiring the development of minimum standards for the operation of local confinement facilities, the semiannual inspection of such facilities by the State, and the state's discretionary power to order 932 corrective action or close the facility.[13] State law does not suggest *932 that only the State may set standards or establish policies for the County Jail. The State's decision to facilitate compliance in all correctional institutions with federal and state laws does not absolve the County from liability. The Commission's existence does not transform the County Jail into a state facility.
Realizing that the present case demonstrates the truth of Justice O'Connor's prediction that state and local law will not always speak with perfect clarity, we conclude that both state and local law point to the Sheriff as the final policymaker for the County when operating the County Jail, and hold that the County is properly responsible for the attorney's fees and costs apportioned to the Sheriff. See Revene v. Charles County Comm'rs, 882 F.2d 870, 874 (4th Cir.1989) ("The claim against the sheriff is in his official capacity.... Rightly construed under current doctrine, this comes to a claim that in the realm of county law enforcement, the sheriff was the duly delegated policy-maker for the county, and it is therefore effectively a claim against the governing body of the county."). As the Parker court stated, "Although the county's authority to provide a service may be vested in an official designated as a state official, the county cannot be insulated from liability based on its responsibilities with regard to that service by the simple expedience of vesting power in a state official." Although the County chose to alter the original delegation of operational authority, the County cannot escape liability for the County Jail. Even had the County always operated the County Jail under the sheriff-county partnership existing at present, the County nonetheless would be liable because, as in Parker, "[t]he county in essence provides the facility and the money for upkeep, and the sheriff in essence manages the institution." 862 F.2d at 1479. And the Parker court's note regarding the necessity for ultimate liability also applies here:
From a policy point of view, county liability where the county has limited control over policy decisionmakers does not strike us as misplaced. The fact that a sheriff executes county policy with considerable autonomy from the county is undercut by the sheriff's dependence on county voters. Arguably, because an Alabama sheriff is voted into office by county residents, the sheriff is more accountable to the county electorate than to the county government. A finding of liability against the county translates into compensatory damages against the taxpayers of the county. One thus comes full circle to the electorate's capacity to control the sheriff: "[T]he compensatory damages that are available against a municipality may themselves induce the public to vote the wrongdoers out of office." County liability for policies established by ultimate repositories of county power creates an incentive for deterring unconstitutional conduct in the future.

Parker, 862 F.2d at 1481 n. 10 (quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 249, 101 S.Ct. 2748, 2750, 69 L.Ed.2d 616 (1981)). For years the County could have rectified conditions at the County Jail. The confused historical status of sheriffs and the complicated jurisprudential analyses under § 1983 do not provide the County with a route by which to escape the final reckoning. The Sheriff held the final policymaking authority for the County over the operation and management of the County Jail. The County is liable for the attorneys fees and costs originally allocated to the Sheriff.
IV.
Attorneys fees and costs under 42 U.S.C. § 1988 for the inmates' attempts to enforce their judgment were properly awarded. The Commissioners argue that § 1988 does not authorize the recovery of fees for collection efforts. The application of such a principle to the present case would destroy the policy behind § 1988. The relevant language in 42 U.S.C. § 1988 states: "In any action or proceeding to enforce a provision of section[] ... 933 1983 *933 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In Balark v. Curtin, 655 F.2d 798 (7th Cir.1981), the court wrote:
Congress has determined that attorneys' fees are necessary to fulfill the purposes of the civil rights laws by transferring the costs of litigation to those who infringe upon basic civil rights. The compensatory goals of the civil rights laws would thus be undermined if fees were not also available when defendants oppose the collection of civil rights judgments. An award of compensation for injuries sustained as a result of unconstitutional state action would be "diluted" if fees were denied to plaintiffs required to contest substantial efforts to resist or obstruct the collection of civil rights judgments. The victory would be hollow if plaintiffs were left with a paper judgment not negotiable into cash except by undertaking burdensome and uncompensated litigation.
Id. at 803 (citation omitted) (emphasis in original).
The Commissioners dispute the fee award, relying on Preston v. Thompson, 565 F.Supp. 310 (N.D.Ill.1983), Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982), and Willie M. v. Hunt, 732 F.2d 383 (4th Cir.1984). All are distinguishable. In Preston, the court stated that "[i]t is clear that time spent in collecting a judgment in a civil rights action may be the subject of an award of attorney's fees." 565 F.Supp. at 319. The court granted additional fees for work credited to the appeal, post-appeal, and turnover motions related to the original fee award. Although the court denied one attorney fees for 15.25 hours related to obtaining the additional fees on the original fees, i.e., the fees for obtaining fees related to the original fees, it awarded fees for "postdecision work in the district court" arising from the defendants' suggestions that they would "resist payment" of the award. Id. at 319. The court wrote,
At some point, it is evident that compensation for time spent litigating entitlements to attorney's fees for establishing an entitlement to fees is no longer compensable. We think that once plaintiffs have established that they are entitled to attorney's fees and have been granted an award of fees for establishing that entitlement, no further fee awards on the attorney's fees aspect of the case should be allowed.
Id. at 320 (emphasis added). Under the court's decision, establishing an "entitlement" to attorneys' fees includes obtaining the assurance that someone actually would pay them. Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982), involved the appropriate standard to use in reviewing a district court's refusal to grant "second-round attorney's fees" and did not focus on the propriety in granting such requests. Id. at 44. Nevertheless, the court concluded, "[o]nly in extraordinary circumstances will we disturb a district judge's exercise of his discretion in awarding or denying fees for establishing fees." Id. at 45 (emphasis added). The decision in Willie M. arose because the "interpretation of this consent judgment was akin to a question of contract interpretation; it was not inextricably intermingled with the original claims in the lawsuit; professional services for conducting this litigation were not compensable under 42 U.S.C. § 1988." 732 F.2d at 386. The present problem does not arise from the Settlement Agreement itself, which could have been enforced had the Sheriff possessed assets; rather it results from the

need to decide the question of final policymaking authority 0907 an issue inherently related to § 1983 and § 1988 litigation. See Plyler v. Evatt, 902 F.2d 273, 279-81 (4th Cir.1990) (explaining Willie M.).
Fee awards under § 1988 may not be disturbed unless the district court abused its discretion. See Buffington v. Baltimore County, Md., 913 F.2d 113, 130 (4th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1106, 113 L.Ed.2d 216 (1991); Ganey v. Garrison, 813 F.2d 650, 652 (4th Cir.1987). The district court did not abuse its discretion in granting attorneys' fees for the inmates' efforts to recover the portion allocated to the Sheriff under the original attorneys' fee award.
934 *934 V.
The Dorchester County Sheriff, in managing and operating the County Jail acts in the guise of, in essence, is a county official 0907 he holds the final county policymaking authority over the County Jail. If he is without sufficient funds to satisfy a settled upon fee ordered in a court proceeding, the County properly is required to satisfy his obligation. That responsibility extends to fees awarded which represent attorneys' fees and expenses incurred in seeking collection of the original fee award.
AFFIRMED.
[1] At first, it was thought that the Sheriff might, through insurance coverage, meet his portion directly. However, that possibility ultimately evaporated.
[2] The Settlement Agreement stated: "Any petition for said legal fees and costs filed by plaintiff shall be structured so as to specify those fees assessed against the defendant Commissioners and the defendant Sheriff."
[3] The Commissioners were to pay $22,554.40 ($21,282.55 for attorneys' fees and $1,271.65 for expenses) and the Sheriff was to pay $109,086.97 ($80,138.00 for attorneys' fees and $28,948.97 for expenses). Minor amounts were subsequently added. On May 4, 1989, the judge ordered that the Commissioners pay $927.50 and the Sheriff pay $4,822.50 as a supplemental award of attorneys' fees. On June 8, 1989, the judge ordered costs of $5.12 and $124.12 to be paid by the Commissioners and Sheriff respectively.
[4] Apparently the Commissioners' counsel had threatened a Federal Rule of Civil Procedure 11 bad faith or abuse of process claim if the inmates attempted to file a second garnishment writ. Consequently, the inmates first wrote a letter informing counsel of their intentions.
[5] The order appears to illustrate the not infrequently arising distinction between "initial" and "ultimate." While the County had satisfied the one-fifth of the fees due from it initially, through liability attributed to the Commissioners, the question remained open and was answered by the district judge, as to whether, to the extent the Sheriff should not meet the four-fifths initially assigned to him, the County ultimately would be assessed.
[6] The inmates had requested $41,303.50 in fees and $1,451.42 in costs. The court reduced the request by the portion attributable to the inmates' attempt to disqualify the Sheriff's counsel.
[7] The magistrate judge also stated that the Sheriff was "the Dorchester County official responsible for determining where inmates will be kept in custody." August 19, 1988 Report and Recommendation at 37 (emphasis added).
[8] We note that the Commissioners have not argued that, if the Sheriff is a county policymaker, he is not the final county policymaker. The district court's decision renders the hypothetical argument untenable. The apportionment decision, in essence, amounted to a conclusion that the Sheriff held final policymaking authority, leaving open only the question, whose authority did he wield.
We emphasize that our conclusions in the instant case do not prevent parties in future cases from arguing that a sheriff's actions leading to alleged violations did not manifest final policymaking authority under City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 923-24, 99 L.Ed.2d 107 (1988). We address only whether, once

the sheriff has been found to be the final policymaker for actions regarding the county jail, the sheriff wields county or state authority.
[9] The Commissioners find article XV, § 2 of the Maryland Constitution significant, mandating suspension from office. Section two, however, applies to "any elected official of the State or of a county or of a municipal corporation" who is convicted of a felony or misdemeanor related to public duties. The language does not distinguish sheriffs from other elected county, city, or state officers.
[10] We refer to the bound compilations of the Code of the Public Local Laws of Maryland which were published in 1888, 1930, 1961, and 1974. The Dorchester County Code appears as article 10. The parties have included an apparently more recent version of the Dorchester County Code. The provisions of the 1974 Code appearing in the opinion are identical to those cited by the parties. We add that "local laws differ from general laws only in that they are confined in their operation to certain prescribed or definite territorial limits...." Cole v. Secretary of State, 249 Md. 425, 433, 240 A.2d 272, 277 (1968).
[11] Cases in other circuits cited by the Commissioners to support their position that funding is not relevant are distinguishable. For example, in Hendrickson v. Griggs, 672 F.Supp. 1126 (N.D.Iowa 1987), appeal dismissed, 856 F.2d 1041 (8th Cir.1988), the court never addressed whether the county could be bound under the mandatory preliminary injunction; it merely concluded that the county board could not be bound, and the court notably reserved the issue of whether it would bind the county sheriff until the relief requested became apparent. Similarly, in Gross v. Tazewell County Jail, 533 F.Supp. 413 (W.D.Va.1982), the court found the County Board immune for Eleventh Amendment reasons. The Dorchester County Commissioners have not disputed on appeal the district judge's conclusion that the County was not entitled to Eleventh Amendment immunity. In any case, the denial of immunity was proper. See Ram Ditta v. Maryland National Capital Park & Planning Comm'n, 822 F.2d 456, 457 (4th Cir.1987); see also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). Moreover, attorneys fees under § 1988 can be recovered despite Eleventh Amendment immunity. See Hutto v. Finney, 437 U.S. 678, 694-700, 98 S.Ct. 2565, 2575-78, 57 L.Ed.2d 522 (1978), reh'g denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); McManama v. Lukhard, 464 F.Supp. 38, 42 (W.D.Va.1978), aff'd, 616 F.2d 727 (4th Cir.1980).
[12] Prior to the establishment of the Commission, the statute governing the "jail programming and inspection officer" who inspected jails for compliance with State standards, stated that the "officer will submit a report to the county commission of the several counties ... showing the results of such inspection together with recommendations...." 1980 Md.Law ch. 535 (repealing Md.Ann.Code art. 27, § 704).
[13] We note that the district court judge stated that "the facts presented to the Magistrate tended to show longstanding, perhaps extreme indifference to the plight of the inmates.... It was also apparent that the failure to renovate the present jail or to build a new jail was attributable to the commissioners alone, and not to the state." Memorandum Op., November 4, 1988, at 8 (emphasis added).
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 Dotson v. Chester, 37 F.3d 1493 (1994)
37 F.3d 1493 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. See CTA4 Rule 32.1. United States Court of Appeals, Fourth Circuit.
Michael N. DOTSON; Wayne Musgrove, and all others similarly situated, Plaintiffs, v.
Lemuel CHESTER; Jack Colburne; Charles Dayton; William I. Wingate; Calvin Travers, in their individual and official capacities, Defendants & Third Party Plaintiffs-Appellants,
Donald SATTERFIELD; Phillip H. McKelvey, Sheriff, Dorchester County, Defendants, v.
AMERICAN JUSTICE INSURANCE RECIPROCAL, Third Party Defendant-Appellee, and
American Risk Pooling Consultants, Incorporated; the Cover X Corporation, Third Party Defendants.
No. 94-1194. | Argued July 11, 1994. | Decided Oct. 12, 1994.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson E. Legg, District Judge. (CA-87-3123-L)
Attorneys and Law Firms
James Patrick Gillece, Jr., Miles & Stockbridge, Baltimore, Md., for appellants.
Daniel Karp, Allen, Johnson, Alexander & Karp, Baltimore, Md., for appellee.
On Brief: Michael A. Brown, Miles & Stockbridge, Baltimore, Md.; Roger D. Redden, Lynette M. Phillips, Piper & Marbury, Baltimore, Md., for appellants.
Denise Ramsburg Stanley, Allen, Johnson, Alexander & Karp, Baltimore, Md., for appellee.
D.Md.
AFFIRMED.
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
Opinion
OPINION
PER CURIAM:
*1 Prisoners in Dorchester County, Maryland sued the Dorchester County Commissioners (“Commissioners”) and the County’s Sheriff and after substantial litigation achieved some injunctive relief by way of settlement. The Sheriff’s insurer provided counsel for the defendants and was actively involved in the litigation. The district court awarded attorney’s fees to the plaintiffs under 42 U.S.C. § 1988, apportioning the payment of the award between the defendants. The Sheriff was to pay a four-fifths and the Commissioners a one-fifth share of the award. The Sheriff, however, did not pay his portion, and the Commissioners ultimately paid the entire amount. The Commissioners sought a declaration in the district court, by way of a third-party complaint, that the Sheriff’s liability insurer, the American Justice Insurance Reciprocal (“AJIR”) was liable for
1

Dotson v. Chester, 37 F.3d 1493 (1994)
reimbursement to them of the amount paid for attorney’s fees and expenses.1
The action in which attorney’s fees and expenses were awarded was one in which inmates at the Dorchester County jail between November, 1987 and February, 1988, brought a suit alleging that conditions existing in the jail unconstitutionally impaired inmate civil rights in violation of 42 U.S.C. § 1983. They initially named the Commissioners as defendants and later joined the Sheriff as a defendant in the lawsuit, because the Sheriff was the elected official responsible for the operation of the jail.
In January, 1988, American Risk, by its underwriting management affiliate, Cover X, obtained a policy from AJIR and retained counsel to represent the Sheriff in the civil rights litigation. Thereafter, counsel for American Risk and Cover X pursued the Sheriff’s and the Deputy Sheriff’s defense as required by the terms and conditions of the Sheriff’s insurance policy.
The covering policy was originally issued on October 7, 1986. That policy obligated the insurer (referred to as “Pool”) to pay certain costs taxed against the Sheriff in civil rights suits that it defended. Specifically, the policy provided, in pertinent part,
Section I Coverages: To pay on behalf of the Member all sums which the Member shall become legally obligated to pay as damages because of (1) “bodily injury” or (2) “personal injury” or (3) “property damage” caused by an “occurrence” and arising out of the Member’s occupancy, maintenance or use of official premises and the Member’s operations in performance of or failure to perform official duties. The Pool shall have the right and duty to defend any “suit” against the Member seeking damages on account of such “bodily injury,” “personal injury,” or “property damage,” even if any of the allegations of the “suit” are groundless, false, or fraudulent, and may make such investigation at settlement of any “claim” or “suit” as it deems expedient but the Pool shall not be obligated to pay any “claim” or “judgment” or to defend any “suit” after the applicable limit of the Pool’s liability has been exhausted by payment of judgments or settlements.
*2 No other obligation or liability to pay sums or perform acts or services as covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS.
In SECTION V-DEFINITIONS, the policy stated that
4. “Damages” includes damages for death and for care and loss of services resulting from “bodily injury” and damages for loss of use of property resulting from “property damage.”
The policy also provided that
7. “personal injury” means ...
(d) violation of rights as protected by civil rights statutes.
The policy, under the SUPPLEMENTARY PAYMENTS portion of the COVERAGE part provided:
The Pool will pay with respect to any “claim” or “suit”: (a) all expenses incurred by the Pool, all costs taxed against the Member in any “suit” defended by the Pool and all interests on the entire amount of any judgment therein which accrues after entry of the judgment and before the Pool has paid or tenured or deposited in court that part of the judgment which does not exceed the limit of the Pool’s liability thereon;....
Section V-DEFINITIONS-provided that
10. “Suit” means a civil proceeding in which damages because of “bodily injury,” “personal injury” or property damage” to which this coverage applies are alleged. “Suit” includes any arbitration proceeding alleging such damages to which you must submit or submit with our consent.
In October, 1988, the parties negotiated a settlement agreement, which resolved the claims against all parties to the litigation. The plaintiffs, having pleaded only equitable relief, settled for that. On January 20, 1989, the district court awarded plaintiffs their litigation costs, including attorneys’ fees, pursuant to 42 U.S.C. § 1988. The Commissioners were assessed one-fifth of all costs; the Sheriff was assessed four-fifths of all costs. The Commissioners promptly paid the portion of the Court ordered award allocated to them. The Sheriff, however, did not pay his portion of the fee award.
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Dotson v. Chester, 37 F.3d 1493 (1994)
On March 3, 1989, plaintiffs made demand on the Sheriff’s insurance carrier, AJIR, American Risk and Cover X for payment of the January 20, 1989 award of costs against the Sheriff. That demand was ignored. On April 3, 1989, due to American Risk’s and Cover X’s refusal to pay the Sheriff’s litigation costs, plaintiffs filed a writ of garnishment on Dorchester County’s treasury bank accounts. The writ of garnishment was quashed by the district court on April 5, 1989. On May 3, 1989, the district court again taxed litigation costs against the Sheriff. Additionally, the district court once more taxed costs against the Sheriff on June 7, 1989, and urged plaintiffs’ counsel to renew their demand on the Sheriff’s insurers for reimbursement of the Sheriff’s portion of plaintiffs’ fee awards. Plaintiffs again demanded the payment of costs from American Risk and Cover X. The demand was rejected.
Plaintiffs then reinstituted their garnishment efforts against Dorchester County’s treasury on June 21, 1990. On June 27, 1990, the Commissioners petitioned this Court to stay plaintiffs’ garnishment action. On September 6, 1990 we stayed plaintiffs’ garnishment writ, pending its resolution of Dorchester County’s responsibility for the 42 U.S.C. § 1988 awards entered against the Sheriff. Nine months later on June 24, 1991 we issued our decision, finding Dorchester County responsible for all litigation costs arising out of the Sheriff’s management of the Jail, based on his status as the final policy making authority for Dorchester County in the area of corrections. Dotson v. Chester, 937 F.2d 920 (4th Cir.1991).
*3 The Commissioners paid the Sheriff’s § 1988 obligation to pay costs that plaintiffs’ attorneys incurred during the course of the garnishment and collection activities. After having paid a total of $332,746.02, the Commissioners filed a Declaratory Judgment Complaint in the district court to determine American Risk’s and Cover X’s responsibility for the Sheriff’s portion of the 42 U.S.C. § 1988 costs.
As stated correctly by the district court, the question in the instant litigation is whether the award of fees and costs pursuant to 42 U.S.C. § 1988 constitutes covered costs within the scope of the Supplementary Payments section of the relevant insurance policy. Finding that the plaintiffs’ complaint had prayed only for injunctive relief and not for damages, the district court held that the provisions of the policy which would trigger coverage for costs assessed against the insured were not met. Since the district court found that there was no coverage for the costs taxed against an insured in a suit for injunctive relief, it determined that the “supplementary payments” part of the policy, under which coverage for such costs is included, was never triggered, and therefore that the “costs” taxed to the defendants in the case brought by the prisoners were not covered costs under the terms of the policy.
On appeal, the Commissioners have argued that the district court erred by failing to interpret the technical definition of damages contained in the insurance policy itself. The policy has defined damages as “includ[ing] damages for death and for care and loss of services resulting from “bodily injury” and damages for loss of use of property resulting from “property damage.” The Commissioners have sought to read the word “includes” and the phrase following it as merely providing illustrative examples of the kinds of damages covered, rather than as limiting coverage to those items listed. Moreover, the Commissioners have insisted that the policy makes no distinction between monetary damages and injunctive relief for the purposes of determining when costs should be borne by the insurance company.
A discussion of the governing state law is illuminating. “Under Maryland law, when deciding the issue of coverage under an insurance policy, the primary principle of construction is to apply the terms of the insurance contract itself.” Bausch & Lomb v. Utica Mutual Ins. Co., 625 A.2d 1021, 1031; 330 Md. 758 (Md.1993) (citing Mitchell v. Maryland Casualty, 324 Md. 44, 56, 595 A.2d 469 (1991)). Unless there is an indication that the parties intended to use words in the policy in a technical sense, the Maryland courts accord the words their usual, ordinary, and accepted meaning. Id.”A word’s ordinary signification is tested by what meaning a reasonably prudent lay person would attach to the term.” Id. (citing Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 388, 488 A.2d 486 (1985)). “Maryland does not follow the rule, adopted in many jurisdictions, that an insurance policy is to be construed most strongly against the insurer. Id. (citation omitted). Rather, as with contracts generally, the parties’ intention is to be ascertained from the policy, as a whole.” Only when there is ambiguity may the courts consider extrinsic evidence to the meaning of policy language. Cheney v. Bell Nat’l Life Ins. Co., 315 Md. 761, 766-67, 556 A.2d 1135 (1989).
*4 While we have interpreted Maryland law as defining damages to mean payments to third parties having a claim for legal damages, as distinguished from claims for traditional equitable relief, see Maryland Cas. Co. v. Armco, Inc., 822 F.2d 1348, 1352 (4th Cir.1987), cert. denied, 484 U.S. 1008 (1988), the Maryland Court of Appeals recently has modified our interpretation of Maryland law. See Bausch & Lomb, 625 A.2d at 1032. Rather than draw a distinction between law and equity, the Maryland courts have stated that
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Dotson v. Chester, 37 F.3d 1493 (1994)
we accord to words their usual and accepted signification. “Damages” in common usage means the reparation in money for a detriment or injury sustained. The reasonably prudent layperson does not cut nice distinctions between the remedies offered at law and in equity. Absent an express provision in the document itself, insurance policy-holders surely do not anticipate that coverage will depend on the mode of relief, i.e. a cash payment rather than an injunction, sought by an injured party.... The ordinary person understands “damages” as meaning money paid to make good an insured loss.
Id. at 1032-33.
Although the Maryland Court of Appeals rejected the “narrow, technical” definition it believed we had embraced in Armco, supra, the Court also expressly stated that “[t]he payment of damages-even broadly defined-remains distinct from other expenditures such as fines, penalties or assessments, which would not be covered under the ... policy. Our construction does not oblige the insurer to pay any and all sums attendant to an insured loss.” Id. at 1033 (citation omitted).
The Commissioners have argued that in the instant case, since damages are defined by the insurance contract, the district court should have restricted itself to interpretation of that contract in rendering its determination. In the Commissioners’ view, the district court, had it interpreted the term damages properly would have concluded that the term “simply covers all ‘damages’ assessed against the insured.” The definition itself reads: “[D]amages includes damages for death and for care and loss of services resulting from ‘bodily injury’ and damages for loss of use of property resulting from ‘property damage.’ ” The Commissioners then would read the word “includes” as an introductory device for a list of illustrations of damages that are covered, rather than a limiting device. That argument, as far as it goes, appears to be correct. See Group Health Association v. Blumenthal, 295 Md. 104, 110, 453 A.2d 1198, 1203 (1983) (include is construed to mean “comprising by illustration and not by way of limitation”); United States v. New York Telephone Co., 434 U.S. 159, 169 n. 15 (1977).
The Commissioners’ argument misses the point, however. Under the policy at issue, as the district court found, the payment of costs such as attorneys fees awarded under 42 U.S.C. § 1988, are awarded under the “supplementary payments” section of the policy. The “supplementary payments” provision provides in pertinent part:
*5 The Pool will pay with respect to any “claim” or “suit”:
(a) all expenses incurred by the Pool, all costs taxed against the Member in any “suit” defended by the Pool and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Pool has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Pool’s liability thereon....
(Emphasis added). The word “suit” likewise is defined by the policy:
“Suit” means a civil proceeding in which damages because of “bodily injury,” “personal injury” or “property damage” to which this coverage applies are alleged. “Suit” includes an arbitration proceeding alleging such damages to which you must submit or submit with our consent.
(Emphasis added).
When the insurance contract at issue is read as a whole, the “supplementary payments” provision only applies where costs are taxed in a “suit.” A proceeding that does not allege damages is not a “suit” as expressly defined by the policy. Although the Commissioners are correct that the term “damages” is defined in the definitions section of the contract, that definition only becomes relevant when there has been brought a “suit” under the terms of the contract. As the district court found, it simply cannot be maintained in the instant case that any damages were alleged by the civil rights plaintiffs in the underlying suit. Theirs was solely a claim for declaratory and injunctive relief. The definition of damages on which the appellants rely so heavily (even were it illuminating) appears not to apply to the facts of the instant case.
Moreover, to the extent that Maryland has rejected a “technical” dividing line between equity and law with respect to the definition of damages, we are reluctant to extend the coverage of Maryland law to costs, such as attorney’s fees, arising out of suits where those costs are not contractually defined as damages. While Maryland has concluded that the common understanding of “damages” includes both suits for injunctive and monetary relief, there is no indication that damages, commonly understood, include assessed attorney’s fees under § 1988. See Sullivan County v. Home Indem. Co., 925 F.2d 152, 153 (6th Cir.1991) (unlike some attorneys’ fee statutes, which unambiguously define fees as damages, § 1988 unambiguously defines them as costs); see also 42 U.S.C. § 1988 (The court “may allow ... a reasonable attorney’s fee as part of the costs.”)2
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Dotson v. Chester, 37 F.3d 1493 (1994)
In the absence of an expression by the Maryland courts to the contrary or contractual language exhibiting the intent to include attorneys fees as damages, we decline to extend the Maryland definition of damages to include attorneys’ fees (i.e., costs) assessed under § 1988. The judgment is accordingly AFFIRMED.

Parallel Citations

1994 WL 557021 (C.A.4 (Md.))

Footnotes

1

The Sheriff’s insurer is generally referred to herein as “AJIR.” It should be noted that AJIR is the successor to the Sheriff’s original

insurer, The Star Pool, a group self-insurance pool. The record also reflects references to American Risk Pool and Consultants,

Inc., and Cover X Corporation, original third-party defendants in the declaratory judgment action, for whom AJIR was substituted.

2

The fact that the insurer provided counsel to the defense should not be allowed to change the result which we have reached. The

duty to defend is broader than the duty to indemnify. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842, 850 (1975)

(insurer must defend if there is the “potentiality ” that the claim could be covered by the policy). Under Maryland law, an insurer’s

actions cannot work to waive the assertion of a defense of a basic lack of coverage under a policy. GEICO v. Medical Serv., 322

Md. 645, 589 A.2d 464 (1991) (advisory opinion); St. Paul Fire & Marine Ins. Co. v. Molloy, 291 Md. 139, 147-49 n. 4; 433 A.2d

1135 (1981); Insurance Co. of N. Am. v. Coffman, 52 Md.App. 732, 451 A.2d 952 (1982).

In the absence of any evidence that the Sheriff, and through him the Commissioners, were entitled to coverage, the insurer’s

willingness to defend the suit did not create an obligation to provide that coverage.

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