Macgill et al v. Baltimore County et al

Filing 15

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/17/2016. (c/m 2/17/16 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLES MACGILL, et al.,

:

Plaintiffs,

:

v.

:

BALTIMORE COUNTY, et al.,

:

Defendants.

Civil Action No. GLR-15-961

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s, Baltimore
County, 1 Motion to Dismiss or, in the Alternative, for Summary
Judgment.
Mary

(ECF No. 12).

Jane

Macgill,

Plaintiffs, Charles G. Macgill and

bring

this

action

regarding

Baltimore

County’s refusal to provide them with access to the public sewer
system, alleging violations of the United States and Maryland
State
U.S.C.
Codes. 2

Constitutions,
§

the

6101

(2012),

(ECF

No.

1).

Age

and

Discrimination

the

Maryland

The Motion

is

and
ripe

Act

of

1975,

Baltimore

42

County

for disposition.

Having considered the Motion and supporting documents, the Court
finds no hearing necessary pursuant to Local Rule 105.6 (D.Md.
1

The Motion to Dismiss is also filed by the Baltimore
County Department of Environmental Protection and Sustainability
(“DEPS”), though it is not a named party and has not intervened
in this case.
The Baltimore County Department of Public Works
(“DPW”) is actually one of the defendants in this matter.
2
Plaintiffs also allege claims for violation of their
rights under the United States and Maryland State Constitutions
against the Office of Administrative Hearings for Baltimore
County, the Board of Appeals for Baltimore County, and the
Circuit Court for Baltimore County.
The Court will direct the
Clerk to amend the case caption.

2014).

For the reasons set forth below, the Court will grant

Baltimore County’s Motion.
BACKGROUND 3

I.

Plaintiffs own the Berger House, which is approximately 133
years old, located at 319 Gun Road, Baltimore County, Maryland.
In March 2012, DPW, in the process of repairing a collapsed
portion of a storm water pipe near the Berger House, discovered
a pipe running from the Berger House to the storm drain.

The

pipe was expelling waste from the Berger House into the storm
drain

and

an

adjacent

stream.

Shortly

thereafter,

DEPS

was

notified. On April 5, 2012, DEPS conducted an inspection and
confirmed that the waste was being discharged from the Berger
House

to

the

storm

drain.

On

April

27,

2012,

DEPS

sent

a

correspondence to Plaintiffs informing them that their sewage
pipe violated several county ordinances and ordering them to
eliminate the violations.

The letter also outlined affirmative

steps Plaintiffs could take to remedy the situation.
On May 19, 2012, DEPS performed another site inspection.
The

inspection

advanced

sewage

violations.
public

3

determined

that

pre-treatment

a

drip

was

dispersal

needed

to

system

eliminate

with
the

Plaintiffs instead requested to be connected to the

sewage

system.

On

August

3,

2012,

DEPS

informed

Unless otherwise noted, the following facts are taken from
the parties’ briefings on the instant Motion, and are viewed in
the light most favorable to the nonmoving party.
2

Plaintiffs that connection to the public sewage system required
community
Further,

authorization
the

process

and

the

would

resolution

take

two

of

to

other

three

issues.

years,

and

Plaintiffs would be required to install temporary septic holding
tanks

and

remove

their

illegal

sewage

pipe.

DEPS

set

a

September 5, 2012 deadline for Plaintiffs to install the drip
dispersal system or temporary holding tanks.

On September 5,

2012, a DEPS inspection revealed the Berger House continued to
illegally expel waste.

Plaintiffs informed DEPS they would not

install the temporary sewage tanks or the drip dispersal system.
DEPS

subsequently

issued

Plaintiffs

a

citation

for

violating

county ordinances and proposed civil monetary penalties.
On October 5, 2012, Mr. Macgill and representatives of DEPS
appeared
Baltimore

before
County

the

Office

for

a

of

hearing

Administrative
regarding

the

Hearings

for

citation.

On

December 11, 2012, the administrative judge issued a written
opinion imposing a $29,700 penalty.

The judge suspended the

penalty for sixty days and ordered Plaintiffs to either install
the drip dispersal system or install the temporary tanks and
apply for connection to the public sewage system.
appealed

the

administrative

judge’s

Appeals for Baltimore County.

order

to

Mr. Macgill

the

Board

of

The Board held a hearing and

issued a written opinion and order on April 30, 2013, affirming
the administrative judge’s decision.
3

On May 23, 2013, Mr. Macgill filed a petition for judicial
review in the Circuit Court for Baltimore County, Maryland.

On

March 3, 2014, the court held a hearing and the parties reached
a settlement regarding the penalty.

The court issued an order

stating that the administrative appeal was voluntarily dismissed
with prejudice and Mr. Macgill was required to pay Baltimore
County $12,500 within 30 days.
On
Court

April

3,

alleging

2015,

Plaintiffs

violations

of

filed

the

a

United

Complaint

States

and

in

this

Maryland

State Constitutions, the Age Discrimination Act of 1975, and the
Maryland and Baltimore County Codes.
invoke

this

jurisdiction
respectively.

Court’s
pursuant

federal
to

Baltimore

28

question

U.S.C.

County

(ECF No. 1).

and

§§

and

1331

DEPS

Plaintiffs
supplemental

and

filed

1367
a

(2012),

Motion

to

Dismiss or, in the Alternative, for Summary Judgment on August
4, 2015.

(ECF No. 12).

Defendants

Request

August 21, 2015. 4

for

Mr. Macgill filed a Motion to Squash
Dismissal

and/or

Summary

Judgment

on

(ECF No. 14).
II.

DISCUSSION

A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint
must set forth “a claim to relief that is plausible on its
face.”
4

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

The Court will construe Plaintiffs’
opposition to Baltimore County’s Motion.
4

Motion

as

an

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim

is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Iqbal, 556

Pro se pleadings

are liberally construed and held to a less stringent standard
than pleadings drafted by lawyers.
89,

94

(2007)

(citing

Estelle

Erickson v. Pardus, 551 U.S.

v.

Gamble,

429

U.S.

97,

106

(1976)); accord Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722
(4th Cir. 2010). “In considering a motion to dismiss, the court
should accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the plaintiff.”
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
“When ‘matters outside the pleading are presented to and
not

excluded

by

the

court,

the

[12(b)(6)]

motion

shall

be

treated as one for summary judgment and disposed of as provided
in Rule 56.’”

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d

253, 260-61 (4th Cir. 1998) (quoting Fed.R.Civ.P. 12(d)).

Under

Federal

grant

Rule

of

Civil

Procedure

56(a),

the

Court

must

summary judgment if the moving party demonstrates there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.
In reviewing a motion for summary judgment, the Court must
draw all justifiable inferences in the non-moving party’s favor.
5

Anderson
(citing

v.

Liberty

Adickes

(1970)).

v.

Lobby,
S.H.

Inc.,

Kress

&

477

U.S.

Co.,

398

242,
U.S.

255

(1986)

144,

158-59

Once a motion for summary judgment is properly made

and supported, the opposing party has the burden of showing that
a genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).

“[T]he mere existence

of some alleged factual dispute between the parties will not
defeat

an

otherwise

properly

supported

motion

for

summary

judgment; the requirement is that there be no genuine issue of
material fact.”

Anderson, 477 U.S. at 247-48.

A “material fact” is one that might affect the outcome of a
party’s case.
Ventures,

Id. at 248; see JKC Holding Co. v. Wash. Sports

Inc.,

264

F.3d

459,

465

(4th

Cir.

2001)

(citing

Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by
the substantive law, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S.

265.

at

248;

accord

Hooven-Lewis,

249

F.3d

at

Here,

because the Court will consider matters outside of the pleading,
the

Motion

to

Dismiss

will

be

judgment.

6

construed

as

one

for

summary

B. Analysis
1. Subject-Matter Jurisdiction
Plaintiffs attempt to bring claims against the Office of
Administrative
Appeals

for

Hearings
Baltimore

for

Baltimore

County,

and

County,
the

the

Board

Circuit

Court

of
for

Baltimore County for violations of their rights under the U.S.
Constitution.
judicial

“Parties aggrieved by state administrative and

decisions

must

pursue

review

in

state

appellate

tribunals, with the ultimate opportunity to petition the Supreme
Court of the United States for review.”

Rousseau v. Howard

Cty., Md., 425 F.App’x 193, 195 (4th Cir. 2011).
This Court “lack[s] jurisdiction to sit as [an] appellate
tribunal[]

over

state

administrative

and

judicial

decisionmakers, absent explicit statutory authorization.”

Id.;

see D.C. Circuit Ct. of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923); see also Exxon
Mobil

Corp.

v.

Saudi

Basic

Indus.

Corp.,

544

U.S.

280,

284

(2005) (holding that lower federal courts lack jurisdiction to
hear

“cases

injuries

brought

caused

by

by

state-court

state-court

losers

judgments

complaining

rendered

before

of
the

district court proceedings commenced and inviting district court
review and rejection of those judgments”).

Plaintiffs have not

presented any statutory authorization providing this Court with
jurisdiction

over

their

claims
7

regarding

the

previous

administrative

and

judicial

proceedings

in

Baltimore

County.

The Court will, therefore, dismiss Plaintiffs’ federal claims
against

the

Office

County,

the

Board

of
of

Administrative
Appeals

for

Hearings

Baltimore

for

Baltimore

County,

and

the

regarding

the

Circuit Court for Baltimore County.
2. Res Judicata
Baltimore

County

argues

Plaintiffs’

claims

monetary penalty are barred by the doctrine of res judicata.
Res judicata “bars a party from relitigating a claim that was
decided or could have been decided in an original suit.” Laurel
Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir.
2008)(emphasis added) (citing

Pueschel v. United States, 369

F.3d 345, 355 (4th Cir. 2004)); accord Alvey v. Alvey, 171 A.2d
92, 94 (Md. 1961).
parties

in

the

“[R]es judicata has three elements: (1) the

present

litigation

should

be

the

same

or

in

privity with the parties to the earlier case; (2) the second
suit must present the same cause of action or claim as the
first; and (3) in the first suit, there must have been a valid
final

judgment

jurisdiction.”

on

the

merits

by

a

court

of

competent

deLeon v. Slear, 616 A.2d 380, 385 (Md. 1992)

(citing Rowland v. Harrison, 577 A.2d 51, 54 (Md. 1990)).
Baltimore County and DEPS imposed an initial civil penalty
of $29,700.
penalty

and

Mr. Macgill sought administrative review of the
both

the

Office

of
8

Administrative

Hearings

for

Baltimore County and the Board of Appeals for Baltimore County
upheld the penalty.

Mr. Macgill then sought judicial review

before

Court

the

Circuit

for

Baltimore

County,

where

he

ultimately entered into a settlement with DEPS and Baltimore
County

for

dismissed

a

penalty

with

amount

prejudice.

of

$12,500

Plaintiffs

and

now

the

matter

attempt

to

was

allege

Baltimore County and DPW violated their Eighth Amendment right
against excessive fines by imposing the monetary penalty.
First,
violated

Plaintiffs

their

have

Eighth

failed

Amendment

to

demonstrate

rights

because

the

shows that DPW did not impose the civil penalty.
parties

as

to

the

Eighth

Amendment

claim

that

DPW

evidence

The remaining

in

the

present

litigation—Mr. Macgill and Baltimore County—are the same as the
parties in the previous litigation.

Also, Mrs. Macgill is in

privity with Mr. Macgill as the co-owner of the Berger House.
Second, this suit presents a claim that could have been brought
in the previous litigation. Lastly, “[i]t is well established
that

dismissals

with

prejudice—including

those

resulting

from

settlement agreements or consent decrees—are treated as final
judgments on the merits for purposes of res judicata.”
v.

Venali,

Inc.,

596

F.Supp.2d

906,

914

(D.Md.

2009).

Jacobs
The

Court, therefore, finds Plaintiffs’ Eighth Amendment claim is
barred.

Accordingly, the Court will grant Baltimore County’s

Motion as to this claim.
9

3. Remaining Claims under the U.S. Constitution
Baltimore

County

argues

that

the

departments

within

Baltimore County are not legal entities capable of being sued.
Construing the Complaint liberally, Plaintiffs appear to bring
claims for violations of their constitutional rights under 42
U.S.C. § 1983 (2012) against Baltimore County and DPW.

Section

1983 provides, in pertinent part: “Every person who, under color
of [law], subjects, or causes to be subjected, any citizen of
the

United

thereof

States

to

the

or

other

deprivation

person
of

within

any

the

rights,

jurisdiction

privileges,

or

immunities secured by the Constitution and laws, shall be liable
to

the

party

injured

in

an

action

at

law

.

.

.

.”

Municipalities and their entities are considered persons under §
1983

and

may

deprivations.

be

sued

for

damages

for

constitutional

Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.

658, 690 (1978).
First, Plaintiffs appear to bring a claim against Baltimore
County and DPW under the Takings Clause of the Fifth Amendment
to the United States Constitution for DPW’s refusal to provide
them with access to sewer service.
applicable

to

the

states

through

The Takings Clause, made
the

Fourteenth

Amendment,

provides: “[N]or shall private property be taken for public use,
without just compensation.”

U.S. Const. amend. V.

successful

Takings

claim

under

the

10

Clause,

a

“To make a

plaintiff

must

establish

that

property

it

interest

possesses
before

a

the

constitutionally

court

will

protected

examine

whether

governmental use or regulation of that property constitutes a
taking.”

Frall Developers, Inc. v. Bd. of Cty. Comm’rs for

Frederick Cty., No. CCB-07-2731, 2008 WL 4533910, at *8 (D.Md.
Sept. 30, 2008) (citing Washlefske v. Winston, 234 F.3d 179,
184–86 (4th Cir. 2000)).
Plaintiffs

have

not

demonstrated

that

access

to

sewer

service is a constitutionally protected property interest.

See

Front Royal & Warren Cty. Indus. Park Corp. v. Town of Front
Royal, Va., 135 F.3d 275, 286 (4th Cir. 1998); Neifert v. Dep’t
of Env’t, 910 A.2d 1100, 1121 (Md. 2006) (“Appellants’ takings
claim fails also because they have not demonstrated that access
to sewer service is an interest that qualifies for protection as
‘property’ under the United States or Maryland Constitution.”).
Further,

Plaintiffs

were

informed

of

the

requirements

for

receiving access to public sewerage, but Plaintiffs refused to
adhere

to

the

prerequisites.

The

Court,

therefore,

finds

Plaintiffs have failed to demonstrate a claim under the Takings
Clause.
Second, Plaintiffs attempt to allege Baltimore County and
DPW

violated

Fourteenth
withheld

their

procedural

Amendment.

documents

from

due

process

Specifically,
them

during
11

rights

Plaintiffs
the

hearings

under

the

allege

DPW

before

the

Office of Administrative Hearings for Baltimore County and the
Board of Appeals for Baltimore County.

The Due Process Clause

of the Fourteenth Amendment provides that “[n]o State shall ...
deprive any person of life, liberty, or property, without due
process of law . . . .”
a

valid

procedural

U.S. Const. amend. XIV, § 1.
due

process

claim,

To state

Plaintiffs

must

demonstrate: (1) that they had a property interest; (2) of which
Baltimore County and DPW deprived them; (3) without due process
of law.

Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810,

826 (4th Cir. 1995).
Whether

Plaintiffs

were

deprived

of

a

property

interest

without due process depends on whether they had a property right
to access to public sewerage.
of

Cty.

Comm'rs,

964

F.2d

See Linton v. Frederick Cty. Bd.

1436,

1438

(4th

Cir.

1992)

(“The

Fourteenth Amendment does not itself create property rights but
rather

affords

a

protection

to

them.

Property

rights

are

determined from sources independent of the Constitution, such
as,

in

this

case,

state

law.”).

As

previously

stated,

Plaintiffs have not demonstrated that access to public sewerage
is a constitutionally protected property interest.

The Court,

therefore, finds Plaintiffs have failed to demonstrate a claim
for violation of their due process rights. 5

5

If Plaintiffs intended to demonstrate a substantive due
process claim, such a claim would similarly fail because they
have not demonstrated a constitutionally protected property
12

Lastly, Plaintiffs attempt to allege Baltimore County and
DPW violated their equal protection rights under the Fourteenth
Amendment.

The Fourteenth Amendment’s Equal Protection Clause

provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.”
amend.

XIV,

§

1.

The

Clause

“limits

all

U.S. Const.

state

action,

prohibiting any state from denying a person equal protection
through

the

enactment,

laws and regulations.”

administration,

or

enforcement

of

its

Sylvia Dev. Corp., 48 F.3d at 818.

Plaintiffs do not appear to be alleging that Baltimore County or
DPW has denied them equal protection through the enactment of
any County ordinance or regulation.

Instead, Plaintiffs appear

to allege Baltimore County and DPW denied them equal protection
by

allegedly

Code.

violating

federal

law

and

the

Baltimore

County

Such allegations do not present a claim under the Equal

interest.
Front Royal, 135 F.3d at 288
(citing Sylvia Dev.
Corp., 48 F.3d at 827) (stating the first element of a
substantive due process claim requires the claimant to establish
possession of a property interest).
Even assuming Plaintiffs had a property interest in access
to public sewerage, Baltimore County did not deprive them of
their property interest without due process.
Plaintiffs were
given ample opportunity to avoid a citation from the County and
obtain access to public sewerage.
They participated in
extensive administrative proceedings regarding the citation and
the requirements for receiving public sewerage before deciding
to voluntarily settle their dispute in the state trial court.
Though Plaintiffs may not have received the outcome they had
hoped for, “procedural due process does not require certain
results—it
requires
only
fair
and
adequate
procedural
protections.” Tri Cty. Paving, Inc. v. Ashe Cty., 281 F.3d 430,
436 (4th Cir. 2002).
13

Protection
prove

Clause.

Baltimore

statutes.

Plaintiffs

County

and

Plaintiffs,

would

DPW

instead

violated

however,

be

the

have

required

various

made

to

federal

negligible

and

conclusory allegations with little to no detail regarding any
violations of the federal statutes cited in their Complaint.
The

Court,

therefore,

finds

Plaintiffs’

demonstrate an equal protection claim.
will

grant

Baltimore

County’s

have

failed

to

Accordingly, the Court

Motion

as

to

Plaintiffs’

constitutional claims.
4. Age Discrimination
Plaintiffs
County

and

attempt

DPW

Discrimination

for

Act,

to

allege

a

discrimination
42

U.S.C.

prohibits

discrimination

on

receiving

federal

financial

Baltimore

County

and

§§

DPW

claim
in

the

6101

violation
et

basis

seq.

of

assistance.
prohibited

against

Baltimore

of

the

(2012),

age

in

from

which

programs

Plaintiffs
them

Age

allege

accessing

sewerage, but fail to demonstrate the alleged prohibition was
due

to

their

age.

Further,

the

undisputed

evidence

shows

Plaintiffs were given an opportunity to receive access to public
sewerage, but they refused to adhere to the prerequisites for
receiving the service.
have

failed

to

The Court, therefore, finds Plaintiffs

demonstrate

a

claim

for

age

discrimination.

Accordingly, the Court will grant Baltimore County’s Motion as
to this claim.
14

5. State Law Claims
Plaintiffs

allege

claims

for

violations

of

the

Maryland

State Constitution, the Maryland Code, and the Baltimore County
Code.

Because Plaintiffs originally filed this case under the

auspices of a federal question, the dismissal of Plaintiffs’
federal claims divests the Court of original jurisdiction over
this

matter.

The

Court,

in

its

discretion,

elects

not

to

exercise supplemental jurisdiction over the remaining state law
claims

and,

entirety.

therefore,
28

U.S.C.

§

will

dismiss

1367(c)(3)

the

(“The

Complaint
district

in

its

courts

may

decline to exercise supplemental jurisdiction over a claim . . .
if

.

.

.

[it]

has

dismissed

all

claims

over

which

it

has

original jurisdiction . . . .”).
III.

CONCLUSION

For the foregoing reasons, the Court will GRANT Baltimore
County’s Motion to Dismiss or, in the Alternative, for Summary
Judgment.

(ECF No. 12).

DISMISSED WITH PREJUDICE.
this case.

Plaintiffs’ Complaint (ECF No. 1) is
The Clerk will be directed to CLOSE

A separate Order follows.

Entered this 17th day of February, 2016
/s/
_____________________________
George L. Russell, III
United States District Judge

15