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Horowitz v. Mason

United States District Court, D. Maryland

April 15, 2016

ELIZABETH HOROWITZ, et al.
v.
MICHAEL D. MASON, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW United States District Judge.

Presently pending and ready for resolution in this case are the following motions: a motion to dismiss filed by Defendants Circuit Court Judge Michael D. Mason and Sergeant Shannon Songco of the Montgomery County Sheriff’s Department (ECF No. 12); a motion to dismiss filed by Defendants Maury S. Epner and Patrick J. Kearney (ECF No. 18); and motions for a preliminary injunction filed by Plaintiffs Elizabeth, Robert, and Cathy Horowitz (collectively, the “Plaintiffs” or “Horowitzes”) (ECF Nos. 33; 34; 35). The relevant issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions to dismiss will be granted. Plaintiffs’ motions for a preliminary injunction will be denied as moot.

I. Background

A. Factual Background

Unless otherwise noted, the facts outlined here are set forth in the complaint and construed in the light most favorable to Plaintiffs. (ECF No. 1). Additional facts will be discussed in the analysis section. Although this case is just the latest in a long string of litigation dating back many years, the facts relevant to this action begin in November 2014. On November 3, 2014, Judge Mason entered judgment in favor of the law firm Selzer Gurvitch Rabin Wertheimer Polott & Obecny, P.C. (“Selzer Gurvitch”) and against Robert and Cathy Horowitz in the Circuit Court for Montgomery County in the amount of $87, 727.76. (ECF No. 18-5).[1] Mr. and Mrs. Horowitz’s appeal of the judgment is pending before the Court of Special Appeals of Maryland and is not at issue in this action. Rather, Plaintiffs brought this suit to enjoin and collect damages stemming from certain actions taken by Judge Mason, Sergeant Shannon Songco, and two Selzer Gurvitch attorneys: Maury S. Epner, and Patrick J. Kearney (collectively, the “Defendants”).

Following Judge Mason’s entry of judgment against Robert and Cathy Horowitz, Selzer Gurvitch, appearing through Mr. Epner and Mr. Kearney, began efforts to collect on the judgment. (ECF No. 1 ¶ 18). The state court issued a writ of garnishment and two writs of execution on the Horowitzes’ personal property. (ECF No. 18-4, at 25). On December 17, the Montgomery County Sheriff’s Department levied on the Horowitzes’ home by posting notice on the front door. (ECF No. 1 ¶ 24). According to Plaintiffs, “[w]hen levying on the house, the Sheriff’s deputies, including Sergeant Songco, also confronted [Elizabeth] Horowitz in the driveway.” (Id. ¶ 25). Plaintiffs assert that Elizabeth Horowitz, who has been deaf since birth, “was not shown any writ, and was only asked through passing of notes whether her parents were home.” (Id. ¶ 26). Elizabeth Horowitz believed that Sergeant Songco was trying to trick her into opening the door. (Id. ¶ 27). Plaintiffs contend that Mr. Kearney then provided Sergeant Songco with Mr. Horowitz’s office telephone number and instructed Sergeant Songco to call Mr. Horowitz and “threaten forcible entry if he would not agree to permit entry voluntarily.” (Id. ¶ 30). Plaintiffs allege that Sergeant Songco instructed a subordinate to call Mr. Horowitz and “request permission to enter the Horowitzes’ home to levy upon personal property, and to pass along the Epner/Kearney threat, that if he didn’t agree, those lawyers would obtain a court order to forcibly enter the Horowitzes’ fee[-]owned dwelling house.” (Id. ¶ 31). Mr. Horowitz contends that he did not unequivocally refuse entry, but “wanted the chance to respond to whatever legal authority” supported the entry of the home. (Id. ¶ 33).

On January 16, 2015, Selzer Gurvitch, through Mr. Epner and Mr. Kearney, filed a motion for forcible entry and ancillary relief seeking authorization for the sheriff to enter the Horowitzes’ home to levy on their personal property. (ECF No. 18-4, at 27-28). On the same day, the Horowitzes filed a motion to release their property from the levy. They then filed an opposition to Selzer Gurvitch’s motion on February 2. On April 23, Judge Mason held a hearing on Selzer Gurvitch’s motion for forcible entry. (ECF No. 18-8). On April 27, Judge Mason granted the motion in part and denied it in part by holding that, in lieu of ordering a sheriff to enter the home, the Horowitzes “shall permit [an] appraiser identified by [Selzer Gurvitch] access to their residence . . . for the purpose of conducting such inventory not later than thirty (30) days from the date of this Order and cooperate in the scheduling of such inventory and appraisal.” (ECF No. 18-9, at 1-2).

Mr. Epner and Mr. Kearney corresponded with the Horowitzes and their counsel to schedule the appraisal in accordance with Judge Mason’s order. (ECF No. 1 ¶¶ 52-56). The parties failed to schedule the appraisal. On June 9, Selzer Gurvitch filed a motion for a show cause order seeking to hold the Horowitzes in contempt for failure to abide by Judge Mason’s order. (ECF No. 18-4, at 38). On October 21, Judge Mason held a hearing on the show cause order. (ECF No. 18-11). The following day, Judge Mason entered an order holding the Horowitzes in contempt and ordering that Mr. Horowitz report to the Montgomery County Detention Center to serve a thirty-day sentence on November 20 unless he permitted the “Sheriff of Montgomery County access to his residence . . . for the purpose of conducting an inventory of and a levy on the personal property.” (ECF No. 18-12). The Horowitzes contend that Judge Mason “acted in bad faith, solely to harass, and with willful disregard of [their] constitutional rights.” (ECF No. 1 ¶ 74).

On October 26, Mr. Kearney e-mailed the Horowitzes’ counsel stating, “I forwarded a copy [of the writ] to the Sheriff, but I believe that the onus is on Mr. Horowitz to schedule a convenient time with the Sheriff for the levy.” (Id. ¶ 75). On November 5, Sergeant Songco, Mr. Kearney, the Horowitzes, and their counsel corresponded regarding the writ. (Id. ¶¶ 76-80).

B. Procedural History

On November 16, 2015, Plaintiffs filed the complaint in this court. (ECF No. 1). A purported motion for a temporary restraining order and hearing was attached to the complaint. (ECF No. 1-1). The complaint asserts that Defendants violated 42 U.S.C. § 1983 (Count I) and the Maryland Consumer Debt Collection Act (the “MCDCA”), Md. Code, Com. Law § 14-201 et seq. (Count II). On November 17, the court denied Plaintiffs’ request for a hearing “because Plaintiffs [had] not shown any grounds for issuance of emergency injunctive relief.” (ECF No. 5, at 1). On November 20, the Horowitzes filed a motion to vacate sentence in state court, and three days later filed a motion to disqualify Judge Mason and reverse the finding of contempt. (ECF No. 18-4, at 52).

On December 12, 2015, Judge Mason and Sergeant Songco filed the pending motion to dismiss. (ECF No. 12). Plaintiffs responded (ECF No. 23), and Judge Mason and Sergeant Songco replied (ECF No. 32). Mr. Epner and Mr. Kearney filed their pending motion to dismiss on December 18 (ECF No. 18), and that motion is fully briefed (ECF Nos. 28; 31). On March 14, 2016, Plaintiffs filed their pending motions for a preliminary injunction. (ECF Nos. 33; 34; 35).

II. Younger Abstention

As a threshold matter, Defendants argue that principles of abstention mandate that the court dismiss Plaintiffs’ claims for injunctive relief in Count I. Federal courts generally should not interfere with ongoing state proceedings like those in which Plaintiffs are involved. This doctrine, called Younger abstention, recognizes that state courts are capable of deciding federal and constitutional issues without the meddling of federal courts. See Martin Marietta Corp. v. Maryland Comm’n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994); see alsoYounger v. Harris, 401 U.S. 37 (1971).[2] Although the doctrine began as a means to keep federal courts out of state criminal proceedings, it has ...


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