Elizabeth Horowitz v. Michael Mason

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cv-03478-DKC Copies to all parties and the district court/agency. [1000039766].. [16-1560]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1560

ELIZABETH HOROWITZ; ROBERT HOROWITZ; CATHY HOROWITZ,
Plaintiffs - Appellants,
v.
THE HONORABLE MICHAEL D. MASON, Judge of the Circuit Court
of Montgomery County; SERGEANT SHANNON SONGCO, Deputy
Sheriff of Montgomery County; MAURY S. EPNER; PATRICK J.
KEARNEY,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
Judge. (8:15-cv-03478-DKC)

Submitted:

February 28, 2017

Decided:

March 10, 2017

Before AGEE, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John S. Lopotto III, Washington, D.C., for Appellants. Jason L.
Levine, Assistant Attorney General, Annapolis, Maryland; Michele
J. McDonald, Assistant Attorney General, Baltimore, Maryland;
Rachel T. McGuckian, Rachel A. Shapiro, MILES & STOCKBRIDGE
P.C., Rockville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Judge Michael D. Mason of the Maryland Circuit Court for
Montgomery

County

entered

an

$87,727.76

judgment

against

Plaintiffs Robert Horowitz and Cathy Horowitz and in favor of
the law firm of Selzer Gurvitch Rabin Wetheimer Polott & Obecny,
P.C.

(“Selzer”).

Following

entry

of

that

judgment,

the

Horowitzes 1 brought the instant action alleging that two Selzer
attorneys—Defendants Maury S. Epner and Patrick J. Kearney—and
Defendant

Sergeant

Shannon

Songco

of

the

Montgomery

County,

Maryland, Sheriff’s Office, used unlawful threats to attempt to
enforce the state court judgment.

The complaint also alleged

that Judge Mason aided the other Defendants in this endeavor by
issuing void, unconstitutional orders directing the Horowitzes
to admit a private appraiser into their house and holding Robert
Horowitz in contempt.

The Horowitzes appeal from the district

court’s order granting the Defendants’ motions to dismiss the
complaint.

We affirm.

The Horowitzes requested an order enjoining enforcement of
the

contempt

order.

The

state

court

docket

indicates

that

Robert Horowitz has already complied with the contempt order.
Accordingly,

this

request

is

moot.

1

See

Catawba

Riverkeeper

Elizabeth Horowitz, the daughter of Robert and Cathy, is
also named as a Plaintiff in the present action.

2

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Found. v. N.C Dep’t of Transp., 843 F.3d 583, 588 (4th Cir.
2016).
The Horowitzes also sought an order enjoing the Defendants
“from further pursuing entry by anyone” into their residence. 2
The district court abstained under Younger v. Harris, 401 U.S.
37 (1971), a decision that we review for abuse of discretion.
Nivens v. Gilchrist, 319 F.3d 151, 153 (4th Cir. 2003).

Even

where a federal court has jurisdiction, Younger requires the
court to abstain from interfering in state proceedings “if there
is: (1) an ongoing state judicial proceeding, instituted prior
to any substantial progress in the federal proceeding; that (2)
implicates important, substantial, or vital state interests; and
(3) provides an adequate opportunity for the plaintiff to raise
the

federal

lawsuit.”

constitutional

claim

advanced

in

the

federal

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156,

165 (4th Cir. 2008) (internal quotation marks omitted).
The

Horowitzes

argue

that

abstaining

under

Younger

was

inappropriate because Elizabeth Horowitz was not a party to the
state court action.

However, the absence of a federal plaintiff

from an underlying state court proceeding does not preclude the

2

This request anticipates future court orders permitting
entry into the Horowitzes’ house, and thus is not mooted by
Robert Horowitz’s compliance with the contempt order, which
required him to allow the sheriff into his residence.

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application of Younger abstention.
U.S.

332,

349-50

(1975);

Cinema

See Hicks v. Miranda, 422
Blue

of

Charlotte,

Gilchrist, 887 F.2d 49, 53 (4th Cir. 1989).

Inc.

v.

In view of the

Horowitzes’ ability to challenge in state court any subsequent
orders authorizing entry into their residence, we conclude that
the district court’s decision to abstain was not an abuse of
discretion.
We

agree

with

the

district

court

that

Judge

Mason

was

entitled to absolute judicial immunity, as none of the conduct
about which the Horowitzes complain constituted a nonjudicial
action

or

an

jurisdiction.

action

taken

in

the

complete

absence

of

all

Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per

curiam).

We also find that Songco was entitled to qualified

immunity,

which

for

civil

“protects

damages

insofar

government
as

their

officials
conduct

from

does

liability

not

violate

clearly established statutory or constitutional rights of which
a reasonable person would have known.”
F.3d

176,

182

(4th

Cir.

2016).

The

Graham v. Gagnon, 831
complaint

alleged

that

Songco, through a subordinate officer, advised Robert Horowitz
that Epner and Kearney would seek a court order to enter the
Horowitzes’ residence if he did not voluntarily permit their
entry.

The Horowitzes characterize this action as a “threat,”

but, as pleaded, it amounts to nothing more than verbal notice
of the lawful options that Epner and Kearney were considering.
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Thus,

the

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complaint

failed

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to

plead

a

violation

of

an

established statutory or constitutional right.
The
failure

district
to

state

court
a

cause

dismissed
of

the

action.

remaining
We

review

claims
de

for

novo

a

district court’s grant or denial of a Fed. R. Civ. P. 12(b)(6)
motion to dismiss, taking the complaint’s factual allegations as
true and drawing all reasonable inferences in the plaintiffs’
favor.

Harbourt v. PPE Casino Resorts Md., LLC, 820 F.3d 655,

658 (4th Cir. 2016).
As to Epner and Kearney, the complaint asserted violations
of 42 U.S.C. § 1983 (2012), the Hobbs Act, 18 U.S.C. § 1951
(2012), and the Maryland Consumer Debt Collection Act, Md. Code
Ann.,

Com.

Law

§§ 14-201

to

-204

(LexisNexis

2013)

(MCDCA).

Most of these claims were not adequately pleaded because they
relied on the faulty premise that the verbal notice provided by
Songco at the behest of Epner and Kearney constituted a threat.
The

remaining

two

MCDCA

claims

were

similarly

insufficient

because they required a finding that Judge Mason’s orders and
the state court judgment were void.
Accordingly, we affirm the district court’s dismissal of
the complaint.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

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this

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and

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argument

would

not

aid

the

decisional

process.

AFFIRMED

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