United States District Court, D. Maryland, Southern Division
NOHORA RIVERO and LEGAL AID BUREAU, INC. Plaintiffs,
MONTGOMERY COUNTY, MARYLAND, et al., Defendants.
W. Grimm United States District Judge
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”). 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. 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.
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.
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.
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.
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
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.
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.
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. Id. ¶¶ 67-75, Prayer
for Relief ¶¶ A, C.
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.
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)).
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.
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)).
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
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. 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.
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.],
(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
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. 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.
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.
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.
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 ...