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Rivero v. Montgomery County

United States District Court, D. Maryland, Southern Division

May 2, 2017



          Paul W. Grimm United States District Judge

         On August 18, 2015, Plaintiff Nohara Rivero and her colleague at Legal Aid Bureau, Inc. (“Legal Aid”) conducted outreach to migrant farmworkers employed by Defendant Fruits and Vegetables by Lewis Orchard, LLC (“Lewis Orchards”), which is owned by Defendants Robert and Linda Lewis (collectively, “the Lewises”).[1] When the Lewises saw Rivero and her coworker on their property, they called the Montgomery County Police Department, accusing the Legal Aid employees of trespassing. Defendant Officer Alexander Kettering responded to the call and, after mediating between the two sides, issued Trespass Notifications and ordered the Legal Aid employees to leave the property.[2] Rivero and Legal Aid allege that the Defendants violated their rights under the First Amendment and its state analogue and seek compensatory damages, declaratory and injunctive relief, and attorneys' fees. Am. Compl., ECF No. 42. Defendants move to dismiss the Amended Complaint in its entirety for want of jurisdiction and for failure to state a claim. Lewis Mot., ECF No. 44; Cty. Mot., ECF No. 45. The Motions are fully briefed, Lewis Mem., ECF No. 44-1; Cty. Mem., ECF No. 45-1; Pls.' Opp'n, ECF No. 48; Lewis Reply, ECF No. 49; Cty. Reply, ECF No. 50, and no hearing is necessary, Loc. R. 105.6 (D. Md.). I find that Plaintiffs have stated claims for infringement of their clearly established right to disseminate information through door-to-door canvassing and that it is plausible that the Lewises may be state actors and therefore amenable to suit; however, I also find that Plaintiffs have failed to state a state-law claim for damages. Accordingly, I will deny the Lewis Defendants' Motions to Dismiss and grant the County Defendants' Motion in part and deny it in part.


          Legal Aid's Farmworkers Program combats unfair labor practices in the agricultural industry and helps migrant and seasonal workers obtain access to public benefits. Am. Compl. ¶¶ 10-11. Oftentimes, migrant farmworkers live in onsite housing provided by their employers. Id. ¶ 22. As part of its Farmworkers Program, Legal Aid makes annual, afterhours visits to such migrant labor camps in Maryland and Delaware to inform workers of their rights and of available public benefits and to listen to their concerns. Id. ¶ 11.

         This case arises out of one such site visit on August 18, 2015, when Legal Aid employee Nohora Rivero and Spencer Evans, a summer law clerk, visited Lewis Orchards, located at 19100 Peach Tree Road in Dickerson, Maryland. Id. ¶¶ 2, 33. Rivero and Evans hoped to speak with the farm's twelve migrant guest workers, who were legally present in the United States on H-2A visas, and who lived onsite in two separate buildings, one at 18900 Peach Tree Road and another at 19101B Peach Tree Road, the latter of which the Plaintiffs allege is not an address that appears in Montgomery County's public records. Id. ¶¶ 33-34. According to the Plaintiffs, nothing differentiates the two residential buildings from the rest of the Lewis Orchards property. Id. ¶ 34.

         At 7:00 P.M., Rivero and Evans arrived at the farm and spoke with five workers at one of the two migrant residences about potential wage-and-hour violations. Id. ¶¶ 35-36. Next, they headed towards the second residence but could not find it and returned to the first building to ask for directions. Id. ¶¶ 37-38. As Rivero spoke again with the farmworkers, the Lewises approached and inquired about the Rivero's and Evans's business on the property. Id. ¶ 38. Rivero and Evans disclosed that they worked for Legal Aid, prompting Linda Lewis to “fl[y] into a rage, ” accusing them of trespassing, and to call the police. Id. ¶ 39. While waiting for the police to arrive, Rivero allegedly overheard Linda Lewis speaking on a cellphone to an unknown individual and instructing the listener to “ ‘call everybody' for a ‘big meeting' ” the following day. Id. ¶ 46.

         Officer Kettering arrived on the scene and, after speaking with the Lewises, told Rivero and Evans that they were trespassing and instructed them to leave the farm. Id. ¶ 40. Rivero responded that migrant workers have the right to receive visitors. Id. Because Legal Aid often encounters resistance from farm owners and from local police departments when trying to contact farmworkers, its staff carries copies of relevant legal authority that sets forth the organization's right to conduct outreach. See Id. ¶¶ 28-30. Accordingly, when Officer Kettering instructed Rivero and Evans to leave the property, Rivero produced a copy of a state attorney general's opinion that purportedly affirmed Legal Aid's right to engage in such activity. Id. ¶ 41. But she mistakenly provided a copy of an opinion from the Virginia Attorney General, which Officer Kettering read and correctly determined had no legal force in Maryland. Id. Evans found an analogous opinion from the Maryland Attorney General on his smartphone, but Officer Kettering refused to read the document. Id.

         Instead, he issued Trespass Notifications against Rivero and Evans that prohibited them for a one-year period from entering the property at “19101 Peach Tree Road, ” an address parenthetically described as “Lewis Orchards.” Rivero Trespass Notification Form, Cty. Mot. Ex. B., ECF No. 45-3; Evans Trespass Notification Form, Cty. Mot. Ex. B.; Am. Compl. ¶¶ 41, 43. As a factual basis for the Notifications, the forms state that Rivero and Evans had engaged in “[u]nwanted distribution of literature” on Lewis Orchards that had not been “[]authorized by [the] agent of [the] property.” Rivero Trespass Notification Form; Evans Trespass Notification Form; Am. Compl. ¶ 44. Linda Lewis signed each Notification, affirming that she was the “owner or agent” of the property at issue. Id. The Notifications stated that failure to comply by Rivero or Evans would result in “immediate arrest” and criminal prosecution pursuant to Md. Code Ann., Crim. Law §§ 6-401 to 410. Rivero Trespass Notification Form; Evans Trespass Notification Form; Am. Compl. ¶ 45. Rivero and Evans understood the Notifications to bar them from entering Lewis Orchards in its entirety, including the migrant farmworker residences and their curtilage. Id. ¶ 44.

         Rivero has attempted to follow up with the Lewis Orchards farmworkers over the telephone but states that they are less willing to talk with her than they were during their previous in-person interaction. Id. ¶ 49. Based on this observation and the “big meeting” that Rivero and Evans allegedly overheard Lewis organizing, Legal Aid believes that the Lewises have instructed their workers not to communicate with the organization. Id. ¶¶ 46, 48, 50.

         Rivero and Legal Aid filed this lawsuit on April 20, 2016. Compl., ECF No. 1. Three days later, Montgomery County Police Department Commander David Anderson rescinded the Trespass Notifications. Email from David Anderson, Commander, Montgomery Cty. Police Dep't, to Deborah Jeon, Legal Dir., ACLU of Md. (Apr. 23, 2016 1:52 P.M.), Cty. Mot., Ex. C, ECF No. 45-4; Id. ¶ 53. Notwithstanding the rescission of the Notifications, the Plaintiffs continue to pursue a § 1983 claim against Officer Kettering in his individual and official capacities (Count I), for which they seek compensatory and punitive damages as well as injunctive relief. Id. ¶¶ 13, 56-61, Prayer for Relief ¶¶ B, E-F. In addition, they are pursuing a tort claim against both Kettering and Montgomery County for violation of their state constitutional rights (Count II), for which they seek compensatory damages and injunctive relief. Id. ¶¶ 62-66, Prayer for Relief ¶¶ B, F. Finally, the Plaintiffs seek a declaratory judgment stating that the Defendants violated their rights under the First Amendment and Article 40 of the Maryland Declaration of Rights and that the Defendants cannot prevent them from visiting farmworkers living on the Lewis Orchards property.[3] Id. ¶¶ 67-75, Prayer for Relief ¶¶ A, C.

         Standard of Review

         Defendants move to dismiss pursuant to both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). “A court should grant a Rule 12(b)(1) motion ‘if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.' ” El-Amin v. Int'l Longshoremen's Ass'n Local No. 333, No. CCB-10-3653, 2011 WL 2580630, at *2 (D. Md. June 28, 2011) (quoting Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir. 1999)). “A Rule 12(b)(1) motion to dismiss is not limited to challenges to jurisdiction appearing from the face of the complaint. In considering the allegations, the court may consider extrinsic evidence and, if such evidence is disputed, may weigh and determine the facts.” United States ex rel. Ackley v. Int'l Bus. Mach. Corp., 76 F.Supp.2d 654, 659 (D. Md. 1999). Courts “regard the pleadings' allegations as mere evidence on the issue, ” and may consider additional evidence. Richmond, Fredericksburg & Potomac Ry. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Notably, if “ ‘a defendant proffers evidence that calls the court's jurisdiction into question, ' ” then “no presumption of truthfulness attaches to the plaintiff's allegations.” Ackley, 76 F.Supp.2d at 659 (quoting Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998)). When a defendant challenges subject matter jurisdiction, the burden is on the plaintiff to prove that subject matter jurisdiction exists. See Evans, 166 F.3d at 647; El-Amin, 2011 WL 2580630, at *2.

         Pursuant to Fed.R.Civ.P. 12(b)(6), the Amended Complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be granted.” A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).



         Defendants argue that the Amended Complaint should be dismissed in its entirety because Commander Anderson's rescission of the Trespass Notifications mooted the Plaintiffs' claims. Lewis Mem. 6-7; Cty. Mem. 9-10, 16, 18-22. Moreover, the Montgomery County Police Department issued a Training Bulletin shortly after the Plaintiffs filed their lawsuit, which states that:

[P]ersons providing . . . lawful services [to migrant workers] are allowed to take customary routes at customary times to the living quarters of the worker to provide these services. “Living quarters” includes but is not limited to outside areas surrounding the actual structure. . . .
Officers should not employ the State's criminal trespass laws in an effort to remove individuals from the living quarters of migrant workers where it appears that the individuals are trying to provide lawful services to the migrants. This applies even if the owner(s) of the property on which the migrants are working seek the removal of these individuals.

Training Bulletin #16-06, at 1, Montgomery Cty., Md. Dep't of Police (May 5, 2016), Cty. Mot. Ex. D., ECF No. 45-5.

         Article III restricts federal courts' jurisdiction to “cases” and “controversies.” U.S. Const. art. III, § 2. “[A] case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting Powell, 395 U.S. at 496). But, if it still can be said that the plaintiff “ ‘suffered, or [is] threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision, ' ” then the plaintiff “continue[s] to have a ‘personal stake in the outcome' of the lawsuit, ” and the case is not moot. Wright v. Bishop, No. DKC-12-947, 2012 WL 4324911, at *2 (D. Md. Sept.19, 2012) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998), and Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)).

         Of particular note here, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot[, ]” so long as “a dispute over the legality of the challenged practices” remains. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Even so, a defendant may show that voluntary cessation renders an issue moot by “demonstrate[ing] that ‘there is no reasonable expectation that the wrong will be repeated.' ” Id. at 633 (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d. Cir. 1945)). But, the defendant “bears [a] formidable burden” in making such a showing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).

         Neither Commander Anderson's rescission of the Trespass Notifications nor the Police Department's issuance of a Training Bulletin that affirms Legal Aid's right to conduct outreach to migrant farmworkers over farm owners' objections moots the issues presented to the Court. Although the Training Bulletin goes a long way towards protecting Legal Aid employees' and others' rights, it only indicates that officers “should not” invoke criminal trespass laws to prevent individuals from providing lawful services to migrant workers; it does not prohibit the practice. Training Bulletin #16-06, at 1. And what the Police Department gives, it may take away. Moreover, the Bulletin fails to recognize that individuals have a First Amendment right to conduct outreach to migrant farmworkers living on their employers' property.[4] One might be tempted to dismiss this as a drafting oversight or something that the Bulletin implicitly recognizes, but the County Defendants' briefing strongly suggests otherwise. Indeed, the title of Section VI.A of their Memorandum in Support of their Motion to Dismiss emphatically declares, “Plaintiffs Do Not Have a First Amendment Right to Visit Migrant Workers.” Cty. Mem. 8. Based on the ephemeral nature of the Training Bulletin and the County's apparent position that the right to conduct outreach to migrant farmworkers lacks grounding in the First Amendment, I cannot say that the Defendants have carried their “formidable burden” to demonstrate that the allegedly wrongful conduct cannot “reasonably be expected to recur.” See Laidlaw, 528 U.S. at 190.

         With respect to Count III of the Amended Complaint, the County Defendants also argue that Rivero and Legal Aid lack standing to seek declaratory relief because they lack a “personal stake” in the outcome of the case and have pleaded an “abstract injury.” Cty. Mem. 19. In support of this argument, they cite Los Angeles v. Lyons, in which the Supreme Court held that an individual who had been subjected to an illegal chokehold by a police officer lacked standing to pursue injunctive relief against a police department because he could not establish more than a speculative risk of experiencing another illegal chokehold. 461 U.S. 95, 105 (1983). According to the Court, Lyons's claim failed because he neither established any specific reason to expect that he would have another encounter with the police or suffer another illegal chokehold. Id. at 105-06. By contrast, Plaintiffs, who make annual visits to migrant-farmworker camps in Maryland, allege that “farm employers frequently deny access to outreach workers, such as Rivero, who try to contact farmworkers” and that “state and local police often disregard [Legal Aid's rights], siding instead with farm owners and employers.” Am. Compl. ¶¶ 11, 28-30. The Amended Complaint cites reports that document this phenomenon in Maryland, as well as other states. Id. ¶ 31 n.4; see also Legal Aid Bureau, Inc., Statewide Advocacy Support Unit, Human Rights Project, Report to U.N. Special Rapporteur on Extreme Poverty and Human Rights, apps. C, D. & attach. 11 (2013) [hereinafter ReporttoU.N.], available at (documenting incidents in which farm owners and law enforcement prevented Legal Aid workers from conducting outreach to migrant farmworkers). Indeed, Rivero herself allegedly had a nearly factually indistinguishable encounter in Carroll County, Maryland in 2008. Report to U.N. app. D. And, as discussed above, the County Defendants maintain that the First Amendment does not protect Legal Aid's activities. The apparent history of conflict between Legal Aid and farm owners and law-enforcement officials in Maryland, coupled with the position taken by the County Defendants in this case persuades me that the likelihood of future controversies of a similar ilk is far from speculative or abstract. The Plaintiffs have standing to litigate the issues raised in the Amended Complaint.[5]

         Moreover, contrary to what the County Defendants' argue, Cty. Mem. 9-10, 16, the Plaintiffs clearly have standing to pursue damages for the injuries they purportedly suffered as a result of the alleged constitutional violations, and it is beyond dispute that whatever steps the County has taken to prevent future infringement of constitutional rights does not remedy any injuries the Plaintiffs already have suffered from the incident at issue in this case. Although the County Defendants contest the Plaintiffs' entitlement to such damages, Cty. Mem. 4, they must make their case on the merits; the Court clearly possesses jurisdiction over the § 1983 claim and the analogous state claim.[6] On a similar note, the Lewis Defendants argue that the Court lacks jurisdiction over them because they are not state actors. Lewis Mem. 7. But this too is a merits argument, and I will address it below.[7]

         Factual Issues

         The Defendants assert that the Amended Complaint is factually deficient in several ways. Before addressing the Defendants' legal arguments for dismissal, I will first determine whether the Amended Complaint pleads facts from which I can “draw the reasonable inference” that the Defendants are “liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         The Lewis Defendants maintain that they called the police not because Rivero and Evans were speaking with their workers but because they observed Evans urinating on their topsoil and standing near a shed that houses dangerous chemicals and because he and Rivero refused to produce identification. Lewis Mem. 10-11. Perhaps so, but that is the Lewises' version of the events, not what the Plaintiffs have alleged. The Plaintiffs allege that the Lewises confronted the Legal Aid staff while Rivero was seeking directions from the farm workers and that Linda Lewis “flew into a rage” upon learning that that Rivero and Evans worked for Legal Aid and promptly called the police. Am. Compl. ¶¶ 38-39. Thus, a factual dispute exists concerning the Lewises' reason for calling the police that cannot be resolved at the motion-to-dismiss stage, and I must accept the well-pleaded allegations that the Lewises called the police in order to prevent Rivero and Evans from speaking with the farmworkers.

         The Lewis Defendants also argue that the Amended Complaint fails to allege that the Trespass Notifications issued by Officer Kettering prevented Rivero and Evans from conducting outreach at the migrant farmworkers' residences. Lewis Mem. 3, 8, 10-11. Specifically, they argue that the Trespass Notifications do not apply to the migrant farmworker residences at 18900 and 19101B Peach Tree Road because the address that appears on the Notifications is 19101 Peach Tree Road. Lewis Mem. 8. But the Amended Complaint explains that 19101 Peach Tree Road “does not seem to appear on Montgomery property plats or in property tax records” and that “the Lewises' property in the vicinity is contiguous and undifferentiated.” Am. Compl. ¶¶ 34, 43. And since “[n]othing Kettering said suggested that the no-trespass order was limited to certain areas of Lewis Orchards property, or that Rivero and Evans were permitted to visit workers, ” they “reasonably interpreted” the Trespass Notifications “to apply to all activities on Lewis Orchards and related properties.” Id. ¶ 43. Moreover, the Trespass Notifications parenthetically describe the address at issue as “Lewis Orchards” in its entirety and specifically state that they were issued in response to “[u]nwanted distribut[ion] of literature, ” activity that ...

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