Rosero v. Baltimore County et al

Filing 3

MEMORANDUM. Signed by Judge Ellen L. Hollander on 3/19/2018. (c/m 3/19/18 jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN C. ROSERO,
Plaintiff,
v.

Civil Action No. ELH-18-713

BALTIMORE CO. et al,
Defendants.
MEMORANDUM
Self-represented plaintiff John C. Rosero filed suit under 42 U.S.C. § 1983 against
Baltimore County (the “County”); Baltimore County Executive Kevin Kamenetz; Arnold
Jabolon, the County’s “Director of Permits Approvals and Inspections;” Robyn Clark, a County
Code Enforcement Inspection Supervisor; and Paul Cohen, a Code Enforcement Officer. ECF 1
(Complaint).1 The 35-page Complaint details Mr. Rosero’s repeated encounters with various
defendants in their attempts to inspect Mr. Rosero’s property for violations of the Baltimore
County Zoning Regulations (the “Regulations”). Id. Further, he alleges that he “has been
victimized continually” since March 2014, and has been subject to “Racial and National Origin
discrimination because he is Hispanic.” He also contends that he has been subjected to excessive
fines. Id.
In his suit, Mr. Rosero alleges seven causes of action. Each is a constitutional challenge
to the Regulations and its enforcement, based on Mr. Rosero’s Fourth, Eighth, and Fourteenth
Amendment rights. Id.
Along with the Complaint, plaintiff filed a combined Motion for Temporary Restraining
Order and Preliminary Injunction. ECF 2. The motion is accompanied by a memorandum of
1

Suit was filed on Friday, March 9, 2018.

law (ECF 2-1) (collectively, “Motion”), and a copy of the Code Enforcement & Inspection
Citation issued February 14, 2018, and reflecting a civil penalty of $23,700. ECF 2-2. The
subject of the Motion concerns Mr. Rosero’s most recent interaction with certain defendants,
who issued a citation to Mr. Rosero in February 2018 for a violation of Section 428 of the
Baltimore County Municipal Code: “Outside Storage of Unlicensed or Inoperative Motor
Vehicles on Residential Property.” ECF 2-2 (Code Enforcement & Inspection Citation, or
“Citation”).
As noted, the Citation reflects a fine of $23,700. Id. at 1. Plaintiff seeks, ECF 2 at 1:
[A] temporary restraining order enjoining enforcement of the unconstitutional
Baltimore County Zoning Code insofar as it (1) mandates warrantless home
inspections without probable cause; (2) criminally and financially punishes
homeowners who assert their Fourth Amendment rights to be free from such
searches; (3) fails to amount to a regulatory scheme sufficient to permit the
attainment of a warrant.
I interpret this as a request to enjoin enforcement of the Citation, and related sections of the
Regulations, against Mr. Rosero.
Mr. Rosero states that he served the Motion on Baltimore County, “through email to
Baltimore County on the date of its filing.” ECF 2-1 at 25. However, none of the defendants has
responded to the suit or the Motion, nor have they contacted the Court to indicate that the Motion
has been received.
Plaintiff requests “waiver of the requirement to give security pursuant to Rule 103(4).”
Presumably, plaintiff is referring to Local Rule 103.4, which provides that a defendant may “file
a motion requesting that [a plaintiff] give security for costs if [the plaintiff] is not a resident of
this District.” That rule does not presently apply. Fed. R. Civ. P. 65(c) does apply, however. It
provides that a “court may issue a preliminary injunction or a temporary restraining order only if

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the movant gives security in an amount that the court considers proper to pay the costs and
damages sustained by any party found to have been wrongfully enjoined or restrained.”
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons
that follow, I shall deny the Motion.
Discussion
A. Injunctive Relief
The same analysis governs both a motion for preliminary injunction and a request for
temporary restraining order. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411,
422 (4th Cir. 1999).
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren. 553 U.S. 674,
689-90 (2008)); Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 345 (4th
Cir.2009), vacated on other grounds and remanded, 130 S. Ct. 2371 (2010), reaff’d in part and
remanded, 607 F.3d 355 (4th Cir. 2010). A preliminary injunction is a remedy that is “'granted
only sparingly and in limited circumstances.’” Micro Strategy, Inc. v. Motorola, Inc., 245 F.3d
335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
816 (4th Cir. 1991)).
Thus, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest.” Winter, 555 U.S. at 20 (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008); Amoco
Prod Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305,
311-12 (1982)); see also Real Truth About Obama, 575 F.3d at 345 (applying the standard for

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preliminary injunctions set forth in Winter). A preliminary injunction cannot be issued unless all
four of these elements are met, and “'[p]laintiff bears the burden of establishing that each of these
factors supports granting the injunction.”' Direx Israel, 952 F.2d at 812 (quoting Tech. Publ’g
Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984); Shaffer v. Globe Prod, Inc.,
721 F.2d 1121, 1123 (7th Cir. 1983)).
Under the “well-pleaded complaint” rule, the facts showing the existence of subject
matter jurisdiction “must be affirmatively alleged in the complaint.” Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir.1999) (citing McNutt v. Gen'l Motors Acceptance Corp.,
298 U.S. 178 (1936)). “A court is to presume, therefore, that a case lies outside its limited
jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole,
531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
(1994)). Moreover, the “burden of establishing subject matter jurisdiction is on . . . the party
asserting jurisdiction.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir.
2010); accord Hertz v. Friend, 599 U.S. 77, 95 (2010); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010).
B. Adjudication Process
Maryland “delegates to local political subdivisions significant authority to regulate land
use.[]” County Council of Prince George’s Co. v. Zimmer Dev. Co., 444 Md. 490, 503, 120 A.3d
677, 685 (2015). However, local governments “are limited to the powers granted to them by the
State.” Id. at 504, 120 A.3d at 685. Baltimore County has enacted various planning and zoning
laws, pursuant to its status as a charter home rule county. Security Mgmt. Corp. v. Baltimore
County, Md., 104 Md. App. 234, 236, 655 A.2d 1326, 1327 (1995); see Balt. Cnty. Charter
(“County Charter”), Art. I; Md. Const. Art. XI-A; Article 25A of the Annotated Code of

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Maryland. Among these laws are the Baltimore County Zoning Regulations. See Baltimore
County Municipal Code, §§ 32-3-101 et seq. The
Under Baltimore County Municipal Code (the “Code”), § 3-6-201, the County may
“enforce and seek correction of any violation.” In doing so, the County may issue a citation, in
writing, “including a reference to the Code or County Code provision the violator has allegedly
violated; . . . any civil penalty proposed to be assessed; and [an advisement] that the violator may
contest the citation or proposed civil penalty by filing with the Code Official or the Director,
within 15 days after receipt of the citation, a written request for a code enforcement hearing.”
Code § 3-6-205. It appears from Mr. Rosero’s Citation that this section was satisfied.
The Code further states that, if a final order imposing a civil penalty is entered, “a
violator or the county may appeal the final order to the Board of Appeals [the ‘Board’].” Code §
3-6-301. And, the Board’s hearings are held de novo. Id. Thereafter, a party who is dissatisfied
with the Board of Appeal’s decision may appeal to the Circuit Court for Baltimore County,
which has authority “to affirm the decision of the board, or, if such decision is not in accordance
with law, to modify or reverse such decision, with or without remanding the case for rehearing,
as justice may require.” Id. § 604; L.G. § 10-305(d); see L.U. § 4-401. And, a litigant may seek
further appellate review in the Maryland Court of Special Appeals and, thereafter, seek certiorari
to the Maryland Court of Appeals. See Md. Code (2013 Repl. Vol., 2016 Supp.), Courts and
Judicial Proceedings Article (“C.J.”), § 12-308 (Court of Special Appeals); C.J. § 12-201 (Court
of Appeals).
C. Anti-Injunction Act
To the extent Mr. Rosero seeks to enjoin the state court proceeding regarding his alleged
violation of the Regulations, the Anti-Injunction Act, 22 U.S.C. § 2283, is relevant. It prohibits

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this court from granting “an injunction to stay the proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.” See 28 U.S.C. § 2283. Where the Anti-Injunction Act bars
injunctive relief, issuance of a declaratory judgment that would have the same effect as an
injunction is also unavailable. See Samuels v. Mackell, 401 U.S. 66, 73 (1971) (declaratory relief
has virtually the same practical impact as a formal injunction).
D. Younger Abstention
Even if the Anti-Injunction Act does not apply here, this Court would decline jurisdiction
to issue an injunction under the doctrine of Younger abstention. See Younger v. Harris, 401 U.S.
37 (1971). Younger has come to represent the principle that “[w]here vital state interests are
involved, a federal court should abstain ‘unless state law clearly bars the interposition of the
constitutional claims.’” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
432 (1982) (citation omitted).
Before abstaining under the Younger doctrine, a district court must answer affirmatively
to three questions: “[F]irst, do [the state proceedings] constitute an ongoing state judicial
proceeding; second, do the proceedings implicate important state interests; and third, is there an
adequate opportunity in the state proceedings to raise constitutional challenges.” Id. at 432.
The attached Citation notified Mr. Rosero of a hearing concerning the violation,
originally scheduled for February 28, 2018. ECF 2-2 at 1. The Citation states that, at the hearing
(referred to in the Citation as a “quasi-judicial hearing”), Mr. Rosero is “entitled to be
represented by an attorney, present witnesses, present evidence, and cross examine any
witnesses.” Id. at 2. And, “an appeal may be taken to the Baltimore County Board of Appeals.”

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Id. To the degree that the case is still active (as implied by Mr. Rosero’s attempt to enjoin
enforcement), it appears that this is an “ongoing state judicial proceeding.”
As the Fourth Circuit has stated, “Younger abstention originated as a doctrine requiring
federal courts not to interfere with ongoing state criminal proceedings. . . . The Supreme Court
has since made clear, however, that it applies as well “‘to noncriminal judicial proceedings when
important state interests are involved.’” Harper v. Pub. Serv. Comm’n of W.VA., 396 F.3d 348,
351 (4th Cir. 2005) (quoting Middlesex, 457 U.S. at 432). And, “property law concerns, such as
land use and zoning questions, are frequently ‘important’ state interests justifying Younger
abstention.” Id. at 352 (citations omitted). See also Carroll v. City of Mount Clemens, 139 F.3d
1072, 1075 (6th Cir. 1998) (Younger abstention is appropriate where the state proceeding is to
enforce the local housing code); World Famous Drinking Emporium, Inc. v. City of Tempe, 820
F.2d 1079, 1083 (9th Cir. 1987) (Younger abstention is appropriate where the state proceeding is
to enforce compliance with a nuisance ordinance).
Mr. Rosero seeks to enjoin the prosecution of a state proceeding to enforce a zoning
code. ECF 2 at 1. Furthermore, plaintiff acknowledges “these zoning violations can end up
causing the Plaintiff to be charged criminally.” ECF 2-1 at 23 (citing Baltimore County Code
§ 35-2-406). Therefore, I find that the second element of Younger abstention is satisfied.
Finally, plaintiff has offered no evidence that he would not have “an adequate
opportunity in the state proceedings to raise constitutional challenges.” He argues extensively in
his Motion that the “search” of his property, which gave rise to the Citation, was illegal. See
generally ECF 2-1. However, he never suggests that state courts would be an inadequate forum
in which to challenge this “search.” The Citation indicates that plaintiff has the right to be
represented by counsel and to appeal any adverse ruling. And, given that Mr. Rosero has not

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even alleged that the state courts would deny him the opportunity to present his objections to the
Citation, I see no reason to interfere with the state proceeding.
E. Burford Abstention
Pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943), a federal court may, in its
discretion, use its equitable powers to abstain from consideration of cases over which it has
jurisdiction in order to show “‘proper regard for the rightful independence of state governments
in carrying out their domestic policy.’” Id. at 318 (citation omitted).
In Burford, Sun Oil Company challenged the validity of an order of the Texas Railroad
Commission (“Commission”) granting Burford a permit to drill four oil wells on land in east
Texas. Id. at 317. The Supreme Court noted that the case was arguably an “‘appeal’ from the
Commission.” Id. Moreover, it observed that the order was “part of the general regulatory
system devised for the conservation of oil and gas in Texas, an aspect of ‘as thorny a problem as
has challenged the ingenuity and wisdom of legislatures.’” Id. at 318.
In view of the sophistication of the state administrative process, the Supreme Court
determined: “Insofar as we have discretion to do so, we should leave these problems of Texas
law to the State court where each may be handled as ‘one more item in a continuous series of
adjustments.’” Id. at 332. It concluded, id. at 333-34:
The state provides a unified method for the formation of policy and determination
of cases by the Commission and by the state courts. The judicial review of the
Commission's decisions in the state courts is expeditious and adequate. Conflicts
in the interpretation of state law, dangerous to the success of state policies, are
almost certain to result from the intervention of the lower federal courts. On the
other hand, if the state procedure is followed from the Commission to the State
Supreme Court, ultimate review of the federal questions is fully preserved here.
Cf. Matthews v. Rodgers, 284 U.S. 521. Under such circumstances, a sound
respect for the independence of state action requires the federal equity court to
stay its hand.

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The Court clarified its Burford decision in New Orleans Pub. Serv., Inc. v. Council of
Cty. of New Orleans, 491 U.S. 350 (1989) (“NOPSI”). In NOPSI, an electrical utility brought
suit challenging the decision of a local rate-making body concerning a proposed electricity rate
increase. Id. at 352-53. The district court dismissed the case, finding, inter alia, that abstention
was proper under Burford. Id. at 355-56, 357. The Fifth Circuit affirmed. Id. at 358.
The case was then heard by the Supreme Court, which explained, id. at 361:
Where timely and adequate state-court review is available, a federal court sitting
in equity must decline to interfere with the proceedings or orders of state
administrative agencies: (1) when there are “difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar”; or (2) where the “exercise of federal
review of the question in a case and in similar cases would be disruptive of state
efforts to establish a coherent policy with respect to a matter of substantial public
concern.
Although the NOPSI Court recognized that Burford is “concerned with protecting
complex state administrative processes from undue federal interference” (id. at 362), it explained
that Burford “does not require abstention whenever there exists such a process, or even in all
cases where there is a ‘potential for conflict’ with state regulatory law or policy.” Id. (citation
omitted). Because the facts in NOPSI did not “demand significant familiarity with, and [would]
not disrupt state resolution of, distinctively local regulatory facts or policies”, the Supreme Court
determined that Burford abstention was not appropriate. Id. at 364.
The Fourth Circuit has “applied Burford abstention to land use and zoning cases.”
Pomponio v. Fauquier Cnty. Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir. 1994), overruled in
part on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728-31 (1996); see
Browning-Ferris, Inc. v. Baltimore County, Md., 774 F.2d 77 (4th Cir. 1985). According to the
Fourth Circuit, cases involving questions of state and local land use and zoning law are “classic
example[s] of situations in which ‘the exercise of federal review of the question in a case and in

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similar cases would be disruptive of state efforts to establish a coherent policy with respect to a
matter of substantial public concern.’” Pomponio, 21 F.3d at 1327 (quoting NOPSI, 491 U.S. at
361); see MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 282 (4th Cir. 2008) (“[W]e have
repeatedly indicated ‘cases involving questions of state and local land use and zoning law are
a classic example of situations’ where Burford should apply . . . .”) (quoting Pomponio, 21 F.3d
at 1327); see also Browning-Ferris, Inc., 774 F.2d at 79-80 (reiterating that state and local
zoning and land use law is especially a local matter).
Further, the Fourth Circuit stated in Pomponio, 21 F.3d at 1327: “Over frequent
objections and challenges and in practically every instance, we have held that, absent unusual
circumstances, a district court should abstain under the Burford doctrine from exercising its
jurisdiction in cases arising solely out of state or local zoning or land use law, despite attempts to
disguise the issues as federal claims.”

The Court noted that cases involving “unusual

circumstances” had, to that point, included claims of religious prejudice, federal statutory
preemption, and First Amendment rights. Id. at 1328. Cf. Siena Corp. v. Mayor & City Council
of Rockville Maryland, 873 F.3d 456, 465 (4th Cir. 2017) (recognizing that “displeasure with
State democratic outcomes does not ordinarily rise to the level of a federal constitutional
violation”). The Pomponio Court ruled, 21 F.3d at 1328:
We now make plain our decisions: In cases in which plaintiffs' federal
claims stem solely from construction of state or local land use or zoning law, not
involving the constitutional validity of the same and absent exceptional
circumstances not present here, the district courts should abstain under
the Burford doctrine to avoid interference with the State's or locality's land use
policy.
However, other considerations require courts to proceed with caution before abstaining
from a case. Notably, “when a federal court has jurisdiction, it also has a ‘virtually unflagging
obligation . . . to exercise’ that authority.” Mata v. Lynch, ___ U.S. ___, 135 S. Ct. 2150, 2156

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(2015) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976)); accord Washington Gas Light Co. v. Prince George's Cnty. Council, 711 F.3d 412, 418
(4th Cir. 2013). Thus, “[a]bstention from the exercise of federal jurisdiction is the exception, not
the rule.” Colorado River, 424 U.S. at 813; accord United States v. South Carolina, 720 F.3d
518, 526 (4th Cir. 2013). Moreover, dismissal based on abstention is “appropriate only where
the relief sought is equitable.” I-77 Properties, LLC v. Fairfield Cnty., 288 F. App’x 108, 110
(4th Cir. 2008) (per curiam) (citing Quackenbush, 517 U.S. at 728-31). In other words, “[w]here
the plaintiff seeks damages, federal courts may not dismiss an action.” I-77 Properties, LLC,
288 F. App’x at 110. Of course, plaintiff seeks equitable relief, in the form of an injunction.
ECF 2.
This case bears the hallmarks of a local zoning case, appropriate for resolution by a
Maryland State court.
Conclusion
This Court has no power to enjoin the state court zoning proceeding. See 28 U.S.C.
§ 2283. And, this case merits abstention under the Younger and/or Burford doctrines. Therefore,
I shall DENY the Motion (ECF 2).
An Order follows, consistent with this Memorandum.

Date: March 19, 2018

/s/
Ellen Lipton Hollander
United States District Judge

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