Harmon v. Sussex County et al
MEMORANDUM re 27 MOTION for Emergency and Preliminary Injunction. Signed by Judge Richard G. Andrews on 6/14/2018. (ksr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 17-1817-RGA
SUSSEX COUNTY, TODD LAWSON,
CONSTABLE MIKE CASTELLO,
and KELLY PASSWATER,
Plaintiff appears pro se.
She began this lawsuit to protect her private property
and preserve her right to restore her home located in Rehoboth Beach, Delaware, which
she owns with "Leroy William Harmon Heirs" and Lefton Harmon, Sr. (D.I. 1; D.I. 1-1 at
Plaintiff alleges violations of her rights under the First and Fourteenth
Amendments to peaceful enjoyment of the property, and unlawful tactics by Sussex
County government officials. On June 9, 2018, Plaintiff filed a motion for emergency
and preliminary injunction to prevent a Sheriff's sale scheduled for June 19, 2018, in
Sussex County, Delaware. (D.I. 27).
Plaintiff began this action in the United States District Court for the District of
The case was transferred to this Court on December 19, 2017.
13, 14). Before beginning this action, on June 27, 2017, Plaintiff filed a case in the
Superior Court of the State of Delaware in and for Sussex County against Sussex
County and Mike Castello.
Harmon v. Sussex County, Civ. A. No. S17C-06-035 ESB
Plaintiff sought an injunction against a demolition order for property
located on Oyster House Road in Rehoboth, Delaware.
The property, which had been
destroyed by fire, had been determined to be dangerous, unsafe and unfit for human
occupation, occupancy or use and was a public nuisance under common law.
Plaintiff became aware of the demolition order on June 23, 2017. The
demolition order provided that the owners were to raze the structure by June 24, 2017
and, if they failed to comply with the demolition order, the Sussex County Code Office
would have the structure razed and removed and the costs of razing and removing
would be charged against the real estate upon which the structure was located, and a
lien would be placed upon the real estate as provided in the Sussex County Code.
The parties agreed that no action would be taken to demolish the property until
disposition of the matter by the Sussex County Board of Appeals.
Harmon, Civ. A. No.
S17C-06-035 ESB, at Sept. 6, 2017 Order.
In the meantime, on July 25, 2017, Plaintiff and the other owners received a
violation notice regarding a shed on the property deemed an "illegally placed structure,"
and they were given until August 18, 2017 to correct the violation. 1 (D. I. 1-1 at p.8).
On August 31, 2017, Plaintiff was notified by email that the demolition appeal hearing
was set for September 20, 2017.
(Id. at p.1 ). As part of the process, Plaintiff was
Plaintiff alleges that the shed has been in the same place for over ten years,
and she lived in the shed for short stays after the house was destroyed by fire. (D.I. 1
required to pay a $600 application fee.
(Id. at p.1 ).
Plaintiff sought a fee waiver due to
financial hardship and was told the County had no process to waive the fee and, if not
received by September 13, 2017, the hearing would be canceled.
(Id. at pp. 2-3).
Plaintiff did not pay the fee and was notified on September 14, 2017 that the hearing
(Id. at p.5).
(D.I. 1 at p.4).
She further alleges Defendants took steps beyond demolition when they
She alleges demolition of the home began the same day.
filled the basement with fill dirt and covered the water well with fill dirt.
Complaint seeks compensatory damages and injunctive relief.
On January 12, 2018, a little over three weeks after this case was transferred
from South Carolina to here, the Department of Finance of Sussex County filed a
monitions suit against Plaintiff and the other owners for delinquent sewer and water bills
and the demolition lien.
Department of Finance of Sussex County v. Harmon Heirs,
Civ. A. No. S18T-01-002 (Del. Super.) The total arrearages amount to $14,063.10.
Monition was entered on January 18, 2018, and posted on the property on January 23,
Department of Finance of Sussex County, Civ. A. No. S18T-01-002 at Jan. 24,
2018 return of writ.
On May 30, 2018, a notice of the Sheriff's sale was posted at the
physical entrance of the property and, on May 31, 2018, Plaintiff and the other property
owners were notified by certified mail of a Sheriff's sale of the real estate to take place
on June 19, 2018, at 9:30 a.m.
See Department of Finance of Sussex County, Civ. A.
No. S18T-01-002 at June 13, 2018 Ex. A, Affidavit of Proof of Mailing; Ex. B, Notice to
Lienholders; Ex. C Affidavit of Posting The notice states that it "does not constitute a
representation that the public sale will be held, which sale is subject to possible stay,
redemption, continuance or dismissal." 2 (D.I. 27-2 at p.3).
On June 8, 2018, Plaintiff filed a motion to dismiss and motion for injunctive relief
in Civ. A. No. S18T-01-002.
She filed an identical motion for injunctive relief in this
Plaintiff contends the Sheriff's sale is retaliatory.
The motion states
that on May 27, 2018, Plaintiff declined an offer of sale of the property initiated by West
Rehoboth Community Land Trust, that Defendants were upset by her refusal and are
"unlawfully ... using their political influence seeking to unlawfully strip [her] of her
private property," "for their own private use," when, through their attorney, they "drafted
a plan with less than [thirty] day[s'] notice, and without any warning to ... Plaintiff -- to
place [the] property up for Sheriff sale on [June 19,] 2018." (Id. at ,m 1-2). The motion
states that West Rehoboth Community Land Trust and its registered agent David J.
Weidman disguised themselves as Partnerships for Development, Inc.
(Id. at ,r 1).
The agreement of sale names Plaintiff and Lefton Harmon, Sr. as the sellers,
Partnerships for Development Inc. as the buyer, and provides for a $300,000 purchase
(D.I. 27-1 at p.1 ).
Plaintiff asserts that Hudson & Downs Corporation, with West
Rehoboth Community Land Trust, have been working together to strip African American
residents of their beach property in the name of the land trust.
(D.I. 27 at ,r 5).
According to Plaintiff, she has made multiple payments on the water and sewer
bill, noting that one check was returned, and stating the bill will be paid in full the month
Presumably the sale will not take place should the property owners satisfy the
of June 2018.
(Id. at ,r,r 10-14). She states that Sussex County never attempted to
arrange for payments on the demolition and she "just began to pay monthly on the
outstanding cost of demolition until the balance is paid in full."
(Id. at ,r,r 15-17)
Plaintiff is currently challenging the demolition cost in this action.
(Id. at ,r 16).
Plaintiff asks the Court to issue an emergency injunction to the Superior Court of
the State of Delaware in and for Sussex County to prevent:
(1) immediate and
irreparable injury, loss, and damage; (2) the Sheriff's sale of the property located on
Oyster House Road in Rehoboth Beach, Delaware; (3) Defendants and their associates
from further retaliatory and harassing conduct; and (4) Sussex County Administration
Department of Finance from having the property disposed of without due process of
Defendants oppose the motion on the grounds Plaintiff has failed to meet the
requisites for injunctive relief.
are the actual cause of the Sheriff's sale.
They note that the arrearages, not retaliation,
In addition, they note that West Rehoboth,
Partners for Development, Inc., and Hudson & Downs Corporations are not defendants
in this action, and they are not affiliated with Defendants in this action.
10, 11 ).
(0.1. 32 at ,r,r
Defendants contend that they did not offer to purchase the property at issue
and have no reason to retaliate, noting that as a government entity and public servants,
they would gain no right to use the subject property under the offer of sale.
Standards of Law
A preliminary injunction is "an extraordinary remedy that should be granted only if
(1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm
to the plaintiff; (3) granting the injunction will not result in irreparable harm to the
defendant; and (4) granting the injunction is in the public interest."
Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999).
Nutrasweet Co. v.
"[F]ailure to establish any
element in [a plaintiff's] favor renders a preliminary injunction inappropriate."
Plaintiff, as the movant, bears the burden of showing that these four factors weigh in
favor of granting the injunction.
See Ferring Pharms., Inc. v. Watson Pharms., Inc.,
765 F.3d 205,210 (3d Cir. 2014).
Under the Younger abstention doctrine, a federal district court
must abstain from hearing a federal case which interferes with certain state
See Younger v. Harris, 401 U.S. 37 (1971 ).
issue of Younger abstention sua sponte.
The Court may raise the
O'Neill v. City of Philadelphia, 32 F.3d 785,
786 n.1 (3d Cir. 1994). Under Younger, federal courts are prevented from enjoining
pending state proceedings absent extraordinary circumstances. 3 Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 437 (1982).
appropriate only when: (1) there are ongoing state proceedings that are judicial in
The abstention doctrine as defined in Younger v. Harris, 401 U.S. 37 (1971 ),
provides that federal courts are not to interfere with pending state criminal proceedings
and has been extended to civil cases and state administrative proceedings. Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982); Huffman v.
Pursue Ltd., 420 U.S. 592 (1975).
nature; (2) the state proceedings implicate important state interests; and (3) the state
proceedings provide an adequate opportunity to raise the federal claims.
Wehmer, 591 F.3d 666, 670 (3d Cir. 2010).
The doctrine applies to proceedings until
all appellate remedies have been exhausted, unless the matter falls within one of the
Younger exceptions. 4 Huffman v. Pursue Ltd., 420 U.S. 592, 608 (1975).
The Court takes judicial notice that the monition proceeding remains pending in
the Superior Court. The relief sought by Plaintiff includes injunctive relief to stay the
Sheriff's sale. The Younger elements have been met and none of the its exceptions
First, there are pending State court proceedings that directly relate to Plaintiff's
dispute. Second, Delaware has an important interest in resolving real estate lien
issues, and a ruling in the Superior Court proceeding implicates the important interest of
preserving the authority of the state's judicial system.
See, e.g., Gray
v. Pagano, 287
F. App'x 155 (3d Cir. 2008) (court abstained under Younger doctrine where plaintiffs
sought a declaration that the judge was not authorized to nullify transfer of title and for
an order enjoining the sheriff from conducting a sheriff's sale); Shipley v. New Castle
Cnty., 2008 WL 4330424 (D. Del. Sept. 19, 2008) (finding real estate tax and lien issue
proceedings important state interests under Younger doctrine); Prindable v. Association
of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1262 (D. Haw. 2003)
Exceptions to the Younger doctrine exist where irreparable injury is "both great
and immediate," Younger, 401 U.S. at 46, where the state law is "flagrantly and patently
violative of express constitutional prohibitions," id. at 53, or where there is a showing of
"bad faith, harassment, or ... other unusual circumstances that would call for equitable
relief." Id. at 54.
(finding foreclosure and ejectment proceedings important state interests under Younger
Finally, Plaintiff has an adequate opportunity to raise her claims in Superior
Court, and Delaware courts provide adequate forums for review of her claims.
Accordingly, pursuant to Younger and its progeny the Court must abstain.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (stating that Younger abstention is
favored even after the plaintiffs failed to raise their federal claims in the ongoing state
Even if abstention was not required, the Court finds that
denial of the motion is appropriate based upon the four-factor preliminary injunction
Plaintiff recites facts, but fails to argue that she is likely to succeed on the
Her motion speaks to injury, loss, and damage, but not success.
dispute her allegations.
The exhibits provided and filings in the Superior Court cases
indicate that Plaintiff was placed on notice that she and the other property owners would
be responsible for payment of the demolition fees if they did not demolish the property
within the required time frame.
By her own admission, Plaintiff is aware of the
outstanding water bill, although for at least one payment there was a returned check.
(D.I. 27 at p. 3).
In addition, the motion states that she "just began to pay monthly on
the outstanding cost of demolition." (Id.).
As Defendants note, the Sheriff's sale is the
result of mounting arrearages on the property and is permitted by statute.
the record, the Court cannot say that Plaintiff has met her burden to show a reasonable
probability she will prevail on the merits.
The second factor is irreparable harm.
In order to meet the irreparable harm
requirement, Plaintiff "must demonstrate potential harm which cannot be redressed by a
legal or an equitable remedy following trial.
The preliminary injunction must be the only
way of protecting the plaintiff from harm." Instant Air Freight Co. v. C.F. Air Freight,
Inc., 882 F.2d 797, 801 (3d Cir. 1989). "[T]he injury must be of a peculiar nature, so
that compensation in money cannot atone for it." Morton v. Beyer, 822 F.2d 364, 372
(3d Cir. 1987).
For purposes of this motion, the Court finds that Plaintiff would suffer
irreparable harm without injunctive relief based upon the unique nature of real estate
and the fact that she will lose her interest in the property should the scheduled Sheriff's
sale take place.
As to the third factor, the Court sees no substantial harm to Defendants as they
already have a monition that can be enforced by a future Sheriff's sale. Any damage in
scheduling a new Sheriff's sale is minimal when compared with Plaintiff's loss of her
Finally, the Court finds that the public interest does not weigh substantially
weigh in favor of either side.
maintaining home ownership.
On the one hand, there is a significant public interest in
See, e.g., McMahon v. JPMorgan Chase Bank, N.A.,
2016 WL 3637002 (E.D. Cal. June 29, 2016); Payne v. Reiter & Schiller, P.A., 2011 WL
5143040, at *2 (D. Minn. Aug. 5, 2011 ).
On the other hand, there is an interest in
respecting the finality of the monition and avoiding interference with that judgment.
See, e.g., Clark v. U.S. Bank Nat'/ Ass'n, 2004 WL 1380166, at *8 (E.D. Pa. June 8,
In sum, the Court finds, that when the factors are considered, Plaintiff has not
met the requisites for injunctive relief.
Most notably, she has failed to show a likelihood
of success on the merits.
For the above reasons, the Court will abstain under the Younger abstention
doctrine and, in the alternative, deny the "Urgent request; verified motion for emergency
& preliminary injunction." 5 (0.1. 27).
A separate order shall issue.
The jurisdictional limitation of the Anti-Injunction Act, 28 U.S.C. § 2283, is
inapplicable to cases brought pursuant to 42 U.S.C. § 1983. See Mitchum v. Foster,
407 U.S. 225 (1972). Plaintiff's complaint is liberally construed as raising a§ 1983
claim alleging violations of her constitutional rights.
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