Venero et al v. Prince George's County Maryland et al
Filing
54
MEMORANDUM OPINION. Signed by Judge Lydia Kay Griggsby on 3/26/2024. (mu1s, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENISE VENERO, et al.,
Plaintiffs,
v.
PRINCE GEORGE’S COUNTY
MARYLAND, et al.,
Defendants.
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Civil Action No. 22-cv-01805-LKG
Dated: March 26, 2024
MEMORANDUM OPINION
I.
INTRODUCTION
In this putative class action, Plaintiffs challenge the Prince George’s County,
Maryland’s Pit Bull Ordinance, and the County’s enforcement of that ordinance, under Section
1983, 42 U.S.C. § 1983, the Fair Housing Act, 42 U.S.C. § 3601, et seq., and Maryland law.
See generally, ECF No. 7. The Defendants have moved to dismiss this matter, pursuant to Fed.
R. Civ. P 12(b)(6). ECF No. 14. 1 The motion is fully briefed. ECF Nos. 24, 50 and 51. No
hearing is necessary to resolve this motion. L.R. 105.6. For the reasons that follow, the Court:
(1) GRANTS the Defendants’ motion to dismiss; (2) DENIES as moot Plaintiffs’ motion for
temporary restraining order (ECF No. 20); (3) DENIES as moot Plaintiffs’ motion to strike
ECF No. 29 (ECF No. 30); (4) DENIES as moot Plaintiffs’ motion for partial summary
judgment (ECF No. 41); (5) DENIES as moot Plaintiffs’ motion to intervene (ECF No. 19);
and (6) DISMISSES the amended complaint.
1
Plaintiffs have also filed the following motions, which the Court has held in abeyance pending the
resolution of the Defendants’ motion to dismiss: (1) motion for temporary restraining order (ECF No. 20);
(2) motion to strike ECF No. 29 (ECF No. 30); and motion for partial summary judgment (ECF No. 41).
II.
FACTUAL AND PROCEDURAL BACKGROUND 2
A.
Factual Background
In this civil action, Plaintiffs challenge the Prince George’s County, Maryland’s Pit Bull
Ordinance, and the County’s enforcement of that ordinance, pursuant to Section 1983, the Fair
Housing Act and Maryland law. See generally, ECF No. 7. In the amended complaint, Plaintiffs
assert the following claims against the Defendants: (1) Section 1983-Fourteenth Amendment
Procedural Due Process (Ordinance Notice); (2) Section 1983- Fourteenth Amendment
Procedural Due Process (Ordinance Lacks Standards); (3) Section 1983-Fourteenth Amendment
Equal Protection (Lacks rational Relationship); (4) Section 1983- Fourteenth Amendment
Procedural Due Process (Ordinance Impermissibly Overbroad); (5) Section 1983-Fourth
Amendment (Unreasonable Seizure); (6) Section 1983-Fourteenth Amendment Procedural Due
Process (Matthews); (7) Section 1983-Fourteenth Amendment Procedural Due Process (Breed
Evaluation); (8) Section 1983-Fourteenth Amendment Procedural and Substantive Due Process;
(9) Fair Housing Act-Disparate Impact; (10) Fair Housing Act-Failure to Accommodate; (11)
Section 1983-Fourteenth Amendment Equal Protection (Invidious Discrimination); (12) Section
1983- Fourteenth Amendment Procedural Due Process (Non-Pit Bull); (13) Section 1983-Fourth
Amendment (Non-Pit Bull); (14) Section 1983-Fourth Amendment-Unreasonable Seizures (NonPit Bull); (15) Section 1983-Monell; and (16) Maryland Rule 7-401 through 7-403. ECF No. 7.
As relief, Plaintiffs seek, among other things, to enjoin Defendants from enforcing the Prince
George’s County Pit Bull Ordinance, certain declaratory relief and other injunctive relief. Id. at
Prayer for Relief.
The Prince George’s County “Pit Bull Ordinance”
As background, Prince George’s County Ordinance Section 3-185.01, which is
commonly referred to as the “Pit Bull Ordinance,” provides that:
(a) Except as provided below, no person shall own, keep, or harbor
a Pit Bull Terrier within the County.
The facts recited in this memorandum opinion are taken from the amended complaint; the Defendants’
motion to dismiss; and the memorandum in support thereof. ECF Nos. 7, 14, 14-1.
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(b) Any person owning a Pit Bull Terrier prior to November 1,
1996, may continue to harbor the animal on his premises under the
following conditions:
(1) The animal shall be registered by the Administrator of
Animal Control, and must at all times wear a tag provided by
the Administrator which will readily identify it as a registered
Pit Bull Terrier.
(2) The owner shall pay an annual fee of $50.00 to the
Administrator of Animal Control to maintain such animals
and support enforcement.
(3) The owner shall maintain the dog within a building or a
secure kennel at all times. Whenever the dog is removed
from the building or kennel it shall be secured by an
unbreakable or unseverable leash and maintained under the
control of an adult.
(c) A person may temporarily hold a Pit Bull Terrier in the County
for the purpose of showing the dog in a place of public exhibition,
contest, or show sponsored by a dog club, association, or similar
organization. The sponsor of the exhibition or show must obtain
written permission from the Director and must provide protective
measures to prevent the dog from escaping or injuring the public.
The dog shall at all times during the transportation to and from the
show or exhibition be confined in a secure temporary enclosure.
(d) Any dog employed or owned by the County or licensed
security services and trained to perform official police,
correctional, security, fire and/or search and rescue service shall be
exempt from the provisions of this Section.
Pr. George’s Code, § 3-185.1. The Prince George’s County Code defines “Pit Bull Terrier” as
follows:
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Staffordshire Bull Terrier breed of dogs;
American Staffordshire Terrier breed of dogs;
American Pit Bull Terrier breed of dogs;
Dogs which have the appearance of being predominantly of
the breed of dogs known as Staffordshire Bull Terrier,
American Staffordshire Terrier, or American Pit Bull
Terrier. Predominantly shall mean that the dog exhibits the
physical characteristics of a Pit Bull Terrier more than any
other breed of dog; and
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•
Dogs which have been registered at any time as a Pit Bull
Terrier.
Prince George’s County Code, § 3-101(62). 3
Also relevant to this dispute, the Prince George’s County Code contains an animal
control subtitle. Section 3-101(a)(63) of this subtitle defines a “potentially dangerous animal”
as follows:
[A]ny animal when unprovoked: demonstrates the potential to
inflict bites on humans or an animal, whether on public or private
property, by chasing or approaching a person in a menacing
fashion or apparent attitude of attack; or any animal with a known
propensity, tendency, or disposition to attack unprovoked, to cause
injury, or to otherwise threaten the safety of humans or animals; or
is running-at-large and has been impounded by law enforcement
two (2) or more times within any twelve (12) month period. The
term “potentially dangerous animal” shall not include dogs used by
law enforcement officials when the dog is being used for legitimate
law enforcement purposes.
Prince George’s Code, § 3-101(a)(78). In addition, Section 3-135(b) of the Prince George’s County
Code provides, in relevant part, that “any animal found at large or running at large is declared to
be a nuisance and dangerous to the public health, safety, and welfare.” Id. at § 3-135(b). Lastly,
the Prince George’s County Code authorizes the impoundment of dangerous animals and provides,
in relevant part, that:
Whenever an animal has been impounded pursuant to this
Section, the owner shall be notified within forty-eight (48)
hours of the impoundment of a right to a preliminary
hearing. The preliminary hearing shall be scheduled within
seventy-two (72) hours of a written request by the owner. . .
Id. at § 3-136(c).
3
The penalties for violating the Pit Bull Ordinance are as follows:
Any person found to have violated any provision of Section 3-185.01 shall be
fined up to $1,000.00 or may be sentenced to not more than six (6) months of
imprisonment. A Pit Bull that causes injury to or kills a human being or a
domestic animal without provocation shall be humanely destroyed, and the owner
of such dog shall be fined up to $1,000.00 or may be sentenced to not more than
six (6) months of imprisonment.
Prince George’s Code, § 3-116.01(a) and (b).
4
The July 4, 2022, Incident
The essential facts relevant to Defendants’ pending motion to dismiss are as follows:
Plaintiffs own two dogs named Bella and Mimi (the “Dogs”). See ECF No. 7 at ¶ 54. The Dogs
are Plaintiff Denise Venero’s emotional support animals. Id. at ¶ 55.
On July 4, 2022, the Dogs escaped from their enclosure and ran at large in the
neighborhood. ECF No. 7 at ¶¶ 83-84, 88. During the animals’ elopement, the dogs came upon
a Jack Russell Terrier that was tied to a tree and the Dogs attacked the Jack Russell Terrier. ECF
No. 14-1 at 8. The Jack Russel Terrier was seriously injured as a result of the attack. Id. at 9.
On July 6, 2022, a Prince George’s County Animal Control Officer arrived at Plaintiffs’
home to impound the Dogs as a result of the July 4, 2022, Incident. ECF No. 7 at ¶¶ 96-99. An
incident report states that the Dogs were being impounded, because they are “dangerous” and
that “a breed evaluation will be conducted to confirm the breeds of each dog.” Id. at ¶¶100-101.
And so, the Dogs were impounded by Prince George’s County pursuant to Sections 3-102-197 of
the Prince George’s County Code (the “Animal Control Code”).
On or about July 11, 2022, the County sent Plaintiffs a notice of violation advising them
that they were administratively charged with a variety of violations of the Animal Control Code.
ECF No. 7-4. The notice of violation states, in relevant part, that:
The Prince George’s County Animal Services Division (PGCASD)
has custody of one Brindle with white, S, Mastiff Mix and one
Brown with white, S, Labrador mix. On July 7, 2022, Prince
George’s County Animal Services received a report from a citizen
stating his dog, a 12yr old Jack Russel, was tied in the front yard
with his kids out playing this weekend when the 2 Pit Bulls, 1
blackish brown and 1 white, from this address came onto his
property and attacked his dog and caused severe injury. Citizen
stated this is not the first issue with the dogs running at large.
States the owners took forever to come and get their dogs then
when his wife was trying to talk to the owner, they reached down
to mess with their dog who was hurt and scared and it bit the
attacking dog owner. Video of the incident was obtained by
Animal Services. After review, the order was put out to impound
the animals pending .a vicious dog hearing. Officer Deppner #905
responded to the address and impounded the dogs from the
property.
This incident is in violation of the following Sections of the Prince
George's County Ordinance:
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Section 3-131(c) ‘Manner of keeping animals - No person shall
keep or maintain any animal in Prince George’s County in such
manner as to cause or permit animal to be a public nuisance’;
Section 3-135 “Animals at Large Prohibited'; Section 3-136
'Dangerous Animals’; .Section 3-142 ‘Irresponsible Pet Owner’;
Section 3-182 'Potentially Dangerous Animals’
After thoroughly reviewing your case, the following decision has
been made regarding your case.
We do NOT intend to return these animals to you.
Id. at 1(emphasis in original.).
Plaintiffs requested a preliminary hearing, pursuant to Prince George’s County Code
Section 3-136(c), which the Defendants denied. ECF No. 7 at ¶¶146 and 151. And so, Plaintiffs
commenced this litigation on July 22, 2022, seeking a temporary restraining order and
preliminary and permanent injunctive relief, to, among other things, enjoin Defendants from
enforcing the Pit Bull Ordinance and ordering Defendants to release the Dogs.
During the hearing on Plaintiff’s motions for a temporary restraining order and preliminary
and permanent injunctive relief, the Defendants agreed to release the Dogs, pending a
preliminary dangerous dog hearing to be held on August 10, 2022. ECF No. 7 at ¶¶ 211-214.
And so, the Dogs were released to Plaintiffs on July 24, 2022. Id. at ¶ 214.
On or about July 26, 2022, Defendants sent Plaintiffs an amended notice, which states, in
relevant part, that:
The Prince George’s County Animal Services Division (PGCASD)
was in custody of your two dogs, Bella and Mimi. . . . . While in
possession of the two dogs, Bella and Mimi, PGCASD determined
that the two dogs are in fact Pit Bulls Terriers under the definition
in the County Code, 3-l0l(a)(62). The two dogs have since been
returned to you upon agreement to kennel the dogs outside of
Prince George's County pending the hearing before the Animal
Control Commission (“Commission”).
Based on the above, you are in violation of the following Sections
of the Prince George's County Code:
Section 3-131(c) ‘Manner of keeping animals - No person shall
keep or maintain any animal in Prince George's County in such
manner as to cause or permit animal to be a public nuisance' ($500
fine per dog for first offense); Section 3-135 “Animals at Large
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Prohibited’ ($50 fine per dog for first violation); Section 3-136
‘Dangerous Animals’ (designation; no fine); Section 3-142
‘Irresponsible Pet Owner’ ($500 for first violation); Section 3-182
‘Potentially Dangerous Animals’ (designation; no fine); 3-185.01
‘Pit Bull Terriers - no person shall own, keep, or harbor a Pit Bull
Terrier within the County” ($25 per dog for first offense).
As you are aware, your hearing before the Commission is set for
August 10, 2022. You have the right to appear before the
Commission if you contest any of the above violations
/designations. Alternatively, you can accept the violations and
designations and waive this hearing by paying the full amount of
the fines, $1,650.00. . .
ECF No. 7-8. On August 9, 2022, Plaintiffs filed a second motion for a temporary restraining
order, which the Court denied. ECF Nos. 10 and 11.
The Commission’s Hearing
On August 10, 2022, the Prince George’s County Animal Control Commission (the
“Commission”) held a hearing regarding the July 4, 2022, Incident involving the Dogs and made
the following findings:
1. The remaining matters to address in the August 10, 2022 hearing were
whether the Dogs are in violation of Section 3-185.01 ‘Pit Bull Terriers’ of the
Prince George’s County Code and if Plaintiff Denise Venero had the means to
properly confine her dogs to her property.
2. Officer Cooke #908 provided testimony regarding the standards used by
Animal Services Division to determine whether or not a dog’s physical
characteristics match those typical of the breed of dog identified as Pit Bull
Terriers. Breed evaluations are conducted when dogs reach adulthood to ensure
all applicable physical features are expressed.
3.
Officer Cooke #908 did not perform the initial breed evaluation of
Plaintiff Denise Venero’s dogs but concurred with the determination after having
the opportunity to view the dogs at the County shelter. Only three supervisor level
Animal Control Officers are trained to perform the breed evaluations for Animal
Services Division.
4.
Plaintiff Denise Venero presented documents from Montgomery County
where she adopted ‘Bella’ showing that she was identified as a Lab mix. ‘Bella’
has Prince George’s County license paperwork identifying her as a Lab mix.
5.
Plaintiff Denise Venero presented documents of ‘Mimi’ being a Yorkshire
Terrier from Banfield Pet Hospital of Maryland City Plaza. ‘Mimi’ has Prince
George’s County license paperwork identifying her as a Mastiff.
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6.
In Prince George’s County, breed information is self-reported and dogs
are not evaluated in the shelter prior to licensing.
7.
Plaintiff Denise Venero presented photos of upgrades made to the fencing
of her parent’s yard to ensure that the gates cannot be left open and shut
automatically. The gate door now locks upon shutting.
8.
Plaintiff Denise Venero understands the necessity of keeping her dogs
secured on her property and the attack has made her vigilant in preventing them
from getting free in the future.
ECF No. 21-1. The Commission concluded that: (1) Plaintiff Denise Venero was not guilty of
violating Section 3-136 ‘Dangerous Animal’ of the Prince George’s County Code, by virtue of
lack of evidence and (2) Plaintiff Denise Venero was not guilty of violating Section 3-185.01 ‘Pit
Bull Terriers’ of the Prince George’s County Code, based upon the evidence. Id. And so, the
Commission ordered Plaintiff Denise Venero to maintain gates and fencing to properly confine
the Dogs on her property and required that the Dogs be leashed when taken off Plaintiffs’
property. Id.
The Plaintiffs’ Allegations
Plaintiffs allege in the amended complaint that the Pit Bull Ordinance is
unconstitutionally vague, because the ordinance fails to give adequate notice about what is
prohibited by the ordinance. ECF No. 7 at ¶¶ 331-337. In this regard, Plaintiffs allege that the
enforcement of the ordinance, which bans the ownership of any dog that possesses the physical
characteristics of a Pit Bull Terrier more than any other breed, deprives them of “fair warning of
prohibited conduct.” Id. at ¶¶ 337.
Plaintiffs also allege that the Pit Bull Ordinance deprives them of substantive due process
rights, because the enforcement of this ordinance burdens their fundamental right to a liberty
interest in human/animal companionship. Id. at ¶¶ 425-430. Plaintiffs further allege that
Defendants unlawfully seized the Dogs, in violation of their Fourth Amendment rights. Id. at ¶¶
482-483.
In addition, Plaintiffs allege that the Defendants have violated the Fair Housing Act, by,
among other things, forcing them and others to “be without their dogs for a significant period of
time,’ which disproportionately impacts minorities due to the population of Prince George’s
County. Id. at ¶¶ 434-447. Lastly, Plaintiffs allege that the Defendants have violated their
constitutional rights pursuant to a policy and custom, and defective training, related to the
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enforcement of the Pit Bull Ordinance. Id. at ¶¶ 512-515. And so, Plaintiffs seek, among other
things, to enjoin Defendants from enforcing the Prince George’s County Pit Bull Ordinance,
certain declaratory relief and other injunctive relief. Id. at Prayer for Relief.
B.
Relevant Procedural Background
Plaintiffs commenced this matter and filed a motion for a temporary restraining order on
July 22, 2022. ECF Nos. 1 and 2. Plaintiffs filed an amended complaint on August 3, 2022.
ECF No. 3. Thereafter, Plaintiffs filed a second motion for a temporary restraining order on
August 9, 2022. ECF Nos. 10, 11 and 13.
On August 19, 2022, Defendants filed a motion to dismiss, pursuant to Fed. R. Civ. P.
12(b)(6), and a memorandum in support thereof. ECF No. 14. On August 25, 2022, Plaintiffs
filed an emergency motion to intervene and an emergency motion for a temporary restraining
order. ECF Nos. 19 and 20. On November 22, 2022, Plaintiffs filed a motion to strike the
Defendant’s response in opposition to their motion for a temporary restraining order. ECF No.
30.
On May 18, 2023, Plaintiffs filed a motion for partial summary judgment. ECF No. 41.
On June 7, 2023, the Court held in abeyance Plaintiffs’ motions to intervene, for a temporary
restraining order, to strike and for partial summary judgment. ECF No. 47.
On July 17, 2023, Plaintiffs filed a response in opposition to Defendant’s motion to
dismiss. ECF No. 50. On August 7, 2023, Defendant filed a reply brief. ECF No. 51.
The Defendants’ motion to dismiss having been fully briefed, the Court resolves the
pending motion.
III.
LEGAL STANDARDS
A. Fed. R. Civ. P. 12(b)(6)
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must
allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when
“the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
When evaluating the sufficiency of a plaintiff’s claims under Fed. R. Civ. P. 12(b)(6), the Court
accepts the factual allegations in the complaint as true and construes them in the light most
favorable to the plaintiff. Nemet Chevrolet, Inc. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253
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(4th Cir. 2009); Lambeth v. Bd. of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005)
(citations omitted). But, the complaint must contain more than “legal conclusions, elements of a
cause of action, and bare assertions devoid of further factual enhancement . . . .” Nemet
Chevrolet, 591 F.3d at 255. And so, the Court should grant a motion to dismiss for failure to
state a claim if “it is clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations.” GE Inv. Private Placement Partners II, L.P. v. Parker,
247 F.3d 543, 548 (4th Cir. 2001) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 249-50
(1989)).
B. Standing
Article III of the Constitution limits the jurisdiction of federal courts to “[c]ases” and
“[c]ontroversies,” the “core component of [which is] standing.” Lujan v. Def. of Wildlife, 504
U.S. 555, 560 (1992). To establish standing, a Plaintiff must show: (1) that she “suffered an
‘injury in fact’– or “an invasion of a legally protected interest which is . . . concrete and
particularized,” and “actual or imminent, not ‘ conjectural’ or ‘hypothetical;’” (2) a “causal
connection between the injury and the conduct complained of,” as the “the injury has to be
‘fairly trace[able] to the challenged action of the defendant'” and not the result of
“independent action of some third party not before the court[;]” and (3) that it is “’likely, as
opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id.
at 560-61 (internal citations omitted). “At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice” to establish standing, because in
resolving a motion to dismiss, the Court “presum[es] that general allegations embrace those
specific facts that are necessary to support the claim.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 889 (1990).
As “the party invoking federal jurisdiction,” the plaintiff has the burden of establishing
standing. Def. of Wildlife, 504 U.S. at 561. A failure to establish any one of the elements of
standing deprives the Court of jurisdiction and requires dismissal of the claim. See Id.
(explaining that the elements of standing are not “mere pleading requirements but rather an
indispensable part of the plaintiff's case[.]”). “To establish injury in fact, a plaintiff must show
that she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S.
330, 339 (2016) (emphasis supplied) (citation omitted); see also Weigel v. Maryland, 950
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F.Supp. 2d 811, 827 (2013). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in
a personal and individual way’… “the plaintiff ‘personally has suffered some actual or
threatened injury.’” Spokeo, 578 U.S. at 339 (internal citations omitted). An injury in fact must
also be “concrete,” meaning that the injury must be a “real” injury and “not [an] abstract” injury.
Id. at 339-40. Lastly, the Supreme Court has held that “every class member” must demonstrate
standing before a court certifies a class in a class action. TransUnion LLC v. Ramirez, 594 U.S.
413, 431 (2021).
C. Mootness
“A case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). In
addition, [a] question is moot if, at the time it is before the court, there is no longer an existing
controversy between the parties,” or “when the court can no longer fashion an effective remedy.”
In Re Riddlemoser, 317 Md. 496, 502 (1989); D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md.
339, 351-352 (2019) (citing In re Kaela C., 394 Md. 432, 452 (2006) (citations omitted). In
addition, Maryland courts have held that “[w]hen a party is seeking an injunction,” “[it] should
not [be] issue[d] if the acts sought to be enjoined have been discontinued or abandoned.” City of
Coll. Park v. Cotter, 309 Md. 573, 580 (1987) (citing Att’y Gen. v. Anne Arundel Cnty. Sch. Bus
Contractors Ass’n, Inc., 286 Md. 324, 327 (1979); State v. Neiswanger Mgmt. Serv., LLC, 457
Md. 441, 455 (2018); see State v. Ficker, 266 Md. 500, 506-7 (1972); see also United Bhd. of
Carpenters and Joiners of Am. v. United Slate Tile & Composition Roofers, 181 Md. 280, 282
(1943) (“[I]f it clearly appears to the court that there will not be a continuance thereof and the
question has become moot, it is proper to refuse the writ.”). But, “a case will not be dismissed as
moot if matters of importance and general public interest are involved under conditions such that
they are likely soon to recur.” Lloyd v. Bd. of Supervisors of Elections of Balt. Cnty., 206 Md.
36, 39 (1954). And so, a case will also not be deemed moot “if the controversy between the
parties is ‘capable of repetition, yet evading review.’” Powell v. Maryland Dep't of Health, 455
Md. 520, 541 (2017) (citing State v. Parker, 334 Md. 576, 585-86 (1994).
IV.
ANALYSIS
The Defendants have moved to dismiss this matter, pursuant to Fed. R. Civ. P.12(b)(6),
upon the following 11 grounds: (1) this case is moot; (2) Plaintiffs lack standing; (3) Plaintiffs
cannot serve a class representatives; (4) the Court should decline to address the constitutional
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issues presented in this case; (5) the Pit Bull Ordinance is rationally-related to a legitimate
government interest; (6) a dog owner’s property interest is subject to the County’s police
powers and may be regulated; (7) Plaintiffs fail to state plausible due process, equal protection
and Fourth Amendment claims in the amended complaint; (8) Plaintiffs have not shown
irreparable harm or that the remedies at law are inadequate; (9) Plaintiffs’ Monell claim fails as
a matter of law; (10) Plaintiffs’ petition for mandamus is not ripe; and (11) the employee
Defendants in this case are entitled to public official and qualified immunity. See generally,
ECF Nos. 14 and 14-1. And so, the Defendants request that the Court dismiss this matter with
prejudice and without leave to amend. Id. at 40.
Plaintiffs counter that the Court should not dismiss this matter for several reasons. First,
Plaintiffs argue that they are not obligated to exhaust administrative remedies before
commencing this matter, because: (1) the Commission lacks subject-matter jurisdiction to
enforce the Pit Bull Ordinance; (2) exhaustion is excepted for challenges to the County’s
administrative remedy; and (3) they are not required to exhaust their Section 1983 claim. ECF
No. 50 at 11-20. Second, Plaintiffs argue that they have standing, and this case is not moot,
because: (1) they have and will continue to suffer an injury in fact that is fairly traceable to
Defendants and their injuries are likely to be redressed by a favorable judicial decision; (2) the
Defendants alleged violations in enforcing the Pit Bull Ordinance is capable of repetition, yet
evading review; (3) the County has not disavowed its intent to enforce the Pit Bull Ordinance in
the future; and (4) they can assert standing for prospective relief for the proposed members of
the class in this putative class action. Id. at 26-27. And so, Plaintiffs request that the Court
deny the Defendants’ motion to dismiss. Id. at 27.
For the reasons that follow, the amended complaint makes clear that Plaintiffs lack
standing to pursue their claims in this putative class action, because they cannot show an injuryin-fact related to the County’s enforcement of the Pit Bull Ordinance. Plaintiffs’ claims in this
matter are also moot, because Plaintiffs prevailed in their administrative challenge to the
County’s enforcement of the Pit Bull Ordinance related to the seizure of the Dogs. And so, the
Court: (1) GRANTS the Defendants’ motion to dismiss; (2) DENIES as moot Plaintiffs’ motion
for temporary restraining order (ECF No. 20); (3) DENIES as moot Plaintiffs’ motion to strike
ECF No. 29 (ECF No. 30); (4) DENIES as moot Plaintiffs’ motion for partial summary
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judgment (ECF No. 41); (5) DENIES as moot Plaintiffs’ motion to intervene (ECF No. 19); and
(6) DISMISSES the amended complaint.
A. Plaintiffs Lack Standing
As an initial matter, the Defendants persuasively argue that the Court should dismiss this
matter for lack of standing, because Plaintiffs cannot show that they have suffered an injury in
fact. To establish standing, Plaintiffs must show, among other things, “(1) that they suffered an
“injury in fact”– or an “invasion of a legally protected interest” which is “concrete and
particularized,” and “actual or imminent, not conjectural or hypothetical.” Def. of Wildlife,
497 U.S. at 560-61 (internal citations omitted).
“For an injury to be ‘particularized,’ it ‘must affect the [Plaintiffs] in a personal and
individual way’… “the [Plaintiffs] ‘personally [must have] suffered some actual or threatened
injury.’” Spokeo, Inc.,578 U.S. at 339 (internal citations omitted). An injury in fact must also be
“concrete,” meaning that the injury must be a “real” injury and “not [an] abstract” injury. Id. at
339-340. And so, “[Plaintiffs have] the burden of establishing standing,” and their failure to
establish any one of the elements of standing deprives the Court of jurisdiction and requires
dismissal of the claim. Def. of Wildlife, 504 U.S. at 561.
In this case, a careful reading of the amended complaint shows that Plaintiffs lack
standing to pursue this putative class action, because they have not alleged facts to show an
injury-in-fact. And so, “[a]t the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice” to establish standing, because in resolving a motion
to dismiss, the Court “presum[es] that general allegations embrace those specific facts that are
necessary to support the claim.” Lujan, 497 U.S. at 889.
Plaintiffs allege in the amended complaint that the Prince George’s County Pit Bull
Ordinance is unlawful and unconstitutional, because the ordinance fails to give adequate notice
about what is prohibited by that law. ECF No. 7 at ¶¶ 331-37. In this regard, Plaintiffs allege
that they have been injured by the enforcement of the Pit Bull Ordinance, which bans ownership
of any dog that possesses the physical characteristics of a Pit Bull Terrier more than any other
breed, because the ordinance deprives them of “fair warning of prohibited conduct.” Id. at ¶¶
337.
Plaintiffs also allege that they have been harmed by the County’s enforcement of the Pit
Bull Ordinance, because their Dogs were unlawfully seized and Defendants are forcing them and
13
others to “‘be without their dogs for a significant period of time.’” Id. at ¶¶ 434-47. And so,
Plaintiffs seek, among other things, to enjoin Defendants from enforcing Pit Bull Ordinance. Id.
at Prayer for Relief.
The amended complaint makes clear, however, that Plaintiffs have not suffered the injury
alleged in this matter, because they are not being forced to be without their Dogs for a significant
period of time. ECF No. 7 at ¶ 214. Rather, Plaintiffs acknowledge in the amended complaint that
the County returned the Dogs to Plaintiffs on July 23, 2022. Id. at ¶¶ 216-23.
The amended complaint also makes clear that the County afforded Plaintiffs due process to
challenge the enforcement of the Pit Bull Ordinance. Plaintiffs acknowledge in the amended
complaint that they participated in a hearing before the Prince George’s County Animal Control
Commission regarding the July 4, 2022, Incident on August 10, 2022. Notably that Plaintiffs
prevailed in that proceeding. Id. at ¶¶ 297-99; see also ECF No. 21-1. In fact, it is undisputed
that the Commission determined during the hearing that:
o Officer Cooke #908 did not perform the initial breed evaluation of Plaintiff
Denise Venero’s dogs but concurred with the determination after having the
opportunity to view the dogs at the County shelter. . .
o Plaintiff Denise Venero presented documents from Montgomery County where
she adopted ‘Bella’ showing that she was identified as a Lab mix. ‘Bella’ has
Prince George’s County license paperwork identifying her as a Lab mix.
o Plaintiff Denise Venero presented documents of ‘Mimi’ being a Yorkshire Terrier
from Banfield Pet Hospital of Maryland City Plaza. ‘Mimi’ has Prince George’s
County license paperwork identifying her as a Mastiff.
ECF No. 21-1. And so, the Commission concluded that Plaintiff Denise Venero was not guilty
of violating the County’s Pit Bull Ordinance, based upon the evidence showing that the Dogs were
not Pit Bull Terriers. Id.
Given the County’s determination that the Dogs are not Pit Bull Terriers, or any other
type of dog that would be subject to the Pit Bull Ordinance, and the undisputed fact that the
County returned the Dogs to Plaintiffs on July 24, 2022, Plaintiffs have not shown that they have
suffered an injury in fact in this case that is concrete, particularized and traceable to Defendants.
Nor have Plaintiffs shown that their alleged injury in this case will be “redressed by a favorable
decision” of this Court, given that they have already prevailed and the Dogs have been returned
14
to Plaintiffs. And so, the Court must dismiss Plaintiffs’ claims in this putative class action for
lack of standing.
Plaintiffs arguments to show that they have standing to pursue this matter are also
unavailing. Plaintiffs first argue that they have standing, because the County’s lack of the
authority to impound the Dogs. ECF No. 50 at 11-14. But, a reading of the Prince George’s
County Code makes clear that the County does, in fact, possess the authority to impound the
Dogs under circumstances where the Dogs, when unprovoked, demonstrate the potential to
inflict bites on an animal. See Prince George’s County Code, § 3-101(a)(63) (addressing
“potentially dangerous animals” and providing that a potentially dangerous animal is “any
animal when unprovoked: demonstrates the potential to inflict bites on humans or an animal . .
.); see also, Prince George’s Code, § 3-135(b) (providing that “any animal found at large or
running at large is declared to be a nuisance and dangerous to the public health, safety, and
welfare.”); Prince George’s Code, §3-136(c)(providing that “[w]henever an animal has been
impounded pursuant to this Section, the owner shall be notified within forty-eight (48) hours of
the impoundment of a right to a preliminary hearing. . .) That is precisely what occurs in this
case. ECF No. 7.
Plaintiffs’ argument that they have standing to pursue this putative class action, because
the Dogs are still subject to seizure under the Pit Bull Ordinance is also unpersuasive. ECF No.
50 at 25-30. As discussed above, the Commission concluded that Plaintiffs Dogs are not Pit Bull
Terriers and subject to the Pit Bull Ordinance, based upon the evidence that Plaintiffs presented
to the commission about the breed of the Dogs during the August 10, 2022, hearing. ECF No.
21-1. Given this, Plaintiffs have not shown that they could be prosecuted for alleged violations
of the Pit Bull Ordinance in the future.
Plaintiffs’ argument that have standing, because the Court may consider their Section
1983 claims in this case without first administratively exhausting their claims, is equally
unavailing. Plaintiffs must administratively exhaust these claims through the County’s
administrative process before bringing such claims in federal court. See, e.g., Porter v. Nussle,
534 U.S. 516, 529, 532, 122 S.Ct. 983, 991, 992 (2002) (exhaustion of administrative remedies
applies to Prison Litigation Reform Act suits alleging a violation of 42 U.S.C. §1983.);Woodford v.
Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 2382–83, 165 L. Ed. 2d 368 (2006); Laurel Racing Ass’n,
Inc. v. Video Lottery Facility Location Comm'n, 409 Md. 445, 460, 975 A.2d 894, 903 (2009)
15
(“[A] party must exhaust the administrative remedy and obtain a final administrative decision . . .
before resorting to the courts.”). Because Plaintiffs have not shown that they have done so here,
their Section 1983 claims are not sufficient to establish standing.
Finally, Plaintiffs have neither shown that the conduct challenged in this case is subject to
repetition, yet evading judicial review, nor that the County’s administrative process is insufficient
to remedy the alleged constitutional violations in this case. Again, as discussed above, the
Commission’s determination that the Dogs are not Pit Bull Terriers, and thus, not subject to the Pit
Bill Ordinance, precludes the future enforcement of the Pit Bull Ordinance with respect to
Plaintiffs and their Dogs. And so, Plaintiffs and their Dogs are not at risk of the County repeating
its enforcement of that ordinance. Plaintiffs also do not explain how the County’s administrative
process is insufficient to remedy the constitutional violations alleged in this case, given that they
have now successfully participated in that administrative process and secured the return of the
Dogs. 4
Indeed, at bottom, Plaintiffs simply have not shown that they suffered an injury in fact
that this Court can redress through a favorable decision. And so, the Court must DISMISS the
amended complaint, for lack of standing.
B. Plaintiff’s Claims Are Also Moot
As a final matter, the Court observes that it must also dismiss this matter, because
Plaintiffs’ claims are moot. A case is moot “when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486,
496–97, 89 S. Ct. 1944,1951, 23 L. Ed. 2d 491 (1969) (citing E. Borchard, Declaratory
Judgments 35—37 (2d ed. 1941). Maryland courts have also held that a claim moot if the acts
sought to be enjoined have been discontinued or abandoned. Att’y Gen. v. Anne Arundel Cnty.
4
As Defendants persuasively argue, Plaintiffs also lack commonality and typicality with respect to other
owners of Pit Bull Terriers in Prince George’s County, because they commenced this action before
participating in the administrative review process for challenging enforcement of the Pit Bull Ordinance.
This fact distinguishes plaintiffs from other members of the putative class. See. ECF No. 7 at ¶16
(describing members of the class as, among other things, all owners of dogs that have not been
scientifically classified as breeds covered by the Pit Bull Ordinance that have been, or will be, seized and
impounded by the County pursuant to the Pit Bull Ordinance.); see also, TransUnion LLC v. Ramirez, 141
S.Ct. 2190, 2208 (2021) (“Every class member must demonstrate standing before a court certifies a
class.”)
16
Sch. Bus Contractors Ass’n, Inc., 286 Md. 324, 327-28, 407 A.2d 749, 752 (1979); Ficker, 266
Md. at 507; United Bd. of Carpenters v. United Slate Tile & Composition Roofers, 181 Md.
280, 282, 29 A.2d 839, 840 (1943).
In this case, the amended complaint makes clear that Plaintiffs prevailed in their
challenge to the seizure and impoundment of the Dogs, pursuant to the Pit Bull Ordinance,
during the County’s administrative review process. ECF No. 7 at¶¶ 297-299 (acknowledging
that Plaintiffs participated in an administrative hearing before the Commission on August 10,
2022.). As discussed above, the unrebutted evidence before the Court shows that the
Commission concluded that Plaintiffs’ Dogs are not Pit Bull Terriers, or dogs that are subject to
the Pit Bull Ordinance, based upon evidence that Plaintiffs provided regarding the breed of the
Dogs. 5 ECF No. 21-1. Given this, Plaintiffs’ dispute with the Defendants regarding the
enforcement of the Pit Bull Ordinance is no longer “live,” because Plaintiffs have participated in
the administrative review process and successfully challenged the enforcement of the Pit Bull
Ordinance.
For similar reasons, Plaintiffs’ reasonable accommodation claim under the Fair Housing
Act is also moot. Again, it is undisputed that the County has returned the Dogs to Plaintiffs.
Given this, Plaintiffs have not been denied reasonable accommodation, by being “forced to be
without their dogs for a significant period of time,” as they allege in the amended complaint.
ECF No. 7 at P 437. And so, the Court must also DISMISS Plaintiffs’ claims in this matter as
moot.
V.
CONCLUSION
In sum, the amended complaint makes clear that Plaintiffs lack standing to pursue their
claims in this putative class action, because they cannot show an injury in fact related to the
County’s enforcement of the Pit Bull Ordinance. Plaintiffs’ claims in this matter are also moot,
because the County has returned the Dogs to Plaintiffs and Plaintiffs have been afforded due
5
Plaintiffs argue that the Commission did not declare the Dogs to not be Pit Bulls, but, rather, only that
the evidence did not support the alleged violations. ECF No. 50 at 14. But, the factual record shows that
Plaintiffs presented evidence to show that the breed of the Dogs is not Pit Bull Terrier during the
Commission’s administrative hearing and that the Commission was persuaded by this evidence.
17
process through the County’s administrative process. And so, for the forgoing reasons, the
Court:
1. GRANTS the Defendants’ motion to dismiss;
2. DENIES as moot Plaintiffs’ motion for temporary restraining order (ECF No. 20);
3. DENIES as moot Plaintiffs’ motion to strike ECF No. 29 (ECF No. 30);
4. DENIES as moot Plaintiffs’ motion for partial summary judgment (ECF No. 41);
5. DENIES as moot Plaintiffs’ motion to intervene (ECF No. 19); and
6. DISMISSES the amended complaint.
A separate Order shall issue.
s/Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
United States District Judge
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
United States District Judge
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