Elizabeth Horowitz v. Michael Mason
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cv-03478-DKC Copies to all parties and the district court/agency. .. [16-1560]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELIZABETH HOROWITZ; ROBERT HOROWITZ; CATHY HOROWITZ,
Plaintiffs - Appellants,
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.
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
February 28, 2017
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Judge Michael D. Mason of the Maryland Circuit Court for
Plaintiffs Robert Horowitz and Cathy Horowitz and in favor of
the law firm of Selzer Gurvitch Rabin Wetheimer Polott & Obecny,
Horowitzes 1 brought the instant action alleging that two Selzer
attorneys—Defendants Maury S. Epner and Patrick J. Kearney—and
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
The Horowitzes requested an order enjoining enforcement of
Robert Horowitz has already complied with the contempt order.
Elizabeth Horowitz, the daughter of Robert and Cathy, is
also named as a Plaintiff in the present action.
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Found. v. N.C Dep’t of Transp., 843 F.3d 583, 588 (4th Cir.
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).
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
Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156,
165 (4th Cir. 2008) (internal quotation marks omitted).
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
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.
See Hicks v. Miranda, 422
Gilchrist, 887 F.2d 49, 53 (4th Cir. 1989).
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
entitled to absolute judicial immunity, as none of the conduct
about which the Horowitzes complain constituted a nonjudicial
Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per
We also find that Songco was entitled to qualified
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
Graham v. Gagnon, 831
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
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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established statutory or constitutional right.
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’
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
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.
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
We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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