Rivero v. Montgomery Cnty.

259 F.Supp.3d 334

Nohora RIVERO and Legal Aid Bureau, Inc., Plaintiffs,

v.MONTGOMERY COUNTY, MARYLAND, et al., Defendants.

Case No.: PWG–16–1186

United States District Court, D. Maryland, Southern Division.

Signed May 2, 2017

Filed May 3, 2017

Kit A. Pierson, Robert W. Cobbs, Pro Hac Vice, Cohen Milstein Sellers and Toll PLLC, Washington, DC, Sonia Kumar, Deborah A. Jeon, American Civil Liberties Union of Maryland Foundation, Baltimore, MD, for Plaintiffs.

Patricia Lisehora Kane, Office of the Montgomery County Attorney, Colleen Coffman Correal, Paul Francis Kemp, Ethridge, Quinn, Kemp, McAuliffe, Rowan and Hartinger, Rockville, MD, for Defendants.

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

On August 18, 2015, Plaintiff Nohara Rivero and her colleague at Legal Aid Bureau, Inc. ("Legal Aid") conducted outreach to migrant farmworkers employed by Defendant Fruits and Vegetables by Lewis Orchard, LLC ("Lewis Orchards"), which is owned by Defendants Robert and Linda Lewis (collectively, "the Lewises").¹ When the Lewises saw Rivero and her coworker on their property, they called the Montgomery County Police Department, accusing the Legal Aid employees of trespassing. Defendant Officer Alexander Kettering responded to the call and, after mediating between the two sides, issued Trespass Notifications and ordered the Legal Aid employees to leave the property.² Rivero and Legal Aid allege that the Defendants violated their rights under the First Amendment and its state analogue and seek compensatory damages, declaratory and injunctive relief, and attorneys' fees. Am. Compl., ECF No. 42. Defendants move to dismiss the Amended Complaint in its entirety for want of jurisdiction and for failure to state a claim. Lewis Mot., ECF No. 44; Cty. Mot., ECF No. 45. The Motions are fully briefed, Lewis Mem., ECF No. 44–1; Cty. Mem., ECF No. 45–1; Pls.' Opp'n, ECF No. 48; Lewis Reply, ECF No. 49; Cty. Reply, ECF No. 50, and no hearing is necessary, Loc. R. 105.6 (D. Md.). I find that Plaintiffs have stated claims for infringement of their clearly established right to disseminate information through door-to-door canvassing and that it is plausible that the Lewises may be state actors and therefore amenable to suit; however, I also find that Plaintiffs have failed to state a state-law claim for damages. Accordingly, I will deny the Lewis Defendants' Motions to Dismiss and grant the County Defendants' Motion in part and deny it in part.

Background

Legal Aid's Farmworkers Program combats unfair labor practices in the agricultural industry and helps migrant and seasonal workers obtain access to public benefits. Am. Compl. ¶¶ 10–11. Oftentimes, migrant farmworkers live in onsite housing provided by their employers. Id. ¶ 22.

As part of its Farmworkers Program, Legal Aid makes annual, afterhours visits to such migrant labor camps in Maryland and Delaware to inform workers of their rights and of available public benefits and to listen to their concerns. Id. ¶ 11.

This case arises out of one such site visit on August 18, 2015, when Legal Aid employee Nohora Rivero and Spencer Evans, a summer law clerk, visited Lewis Orchards, located at 19100 Peach Tree Road in Dickerson, Maryland. Id. ¶¶ 2, 33. Rivero and Evans hoped to speak with the farm's twelve migrant guest workers, who were legally present in the United States on H–2A visas, and who lived onsite in two separate buildings, one at 18900 Peach Tree Road and another at 19101B Peach Tree Road, the latter of which the Plaintiffs allege is not an address that appears in Montgomery County's public records. Id. ¶¶ 33–34. According to the Plaintiffs, nothing differentiates the two residential buildings from the rest of the Lewis Orchards property. Id. ¶ 34.

At 7:00 P.M., Rivero and Evans arrived at the farm and spoke with five workers at one of the two migrant residences about potential wage-and-hour violations. Id. ¶¶ 35–36. Next, they headed towards the second residence but could not find it and returned to the first building to ask for directions. Id. ¶¶ 37–38. As Rivero spoke again with the farmworkers, the Lewises approached and inquired about the Rivero's and Evans's business on the property. Id. ¶ 38. Rivero and Evans disclosed that they worked for Legal Aid, prompting Linda Lewis to "fl[y] into a rage," accusing them of trespassing, and to call the police. Id. ¶ 39. While waiting for the police to arrive, Rivero allegedly overheard Linda Lewis speaking on a cellphone to an unknown individual and instructing the listener to " 'call everybody' for a 'big meeting' " the following day. Id. ¶ 46.

Officer Kettering arrived on the scene and, after speaking with the Lewises, told Rivero and Evans that they were trespassing and instructed them to leave the farm. Id. ¶ 40. Rivero responded that migrant workers have the right to receive visitors. Id. Because Legal Aid often encounters resistance from farm owners and from local police departments when trying to contact farmworkers, its staff carries copies of relevant legal authority that sets forth the organization's right to conduct outreach. See id. ¶¶ 28–30. Accordingly, when Officer Kettering instructed Rivero and Evans to leave the property, Rivero produced a copy of a state attorney general's opinion that purportedly affirmed Legal Aid's right to engage in such activity. Id. ¶ 41. But she mistakenly provided a copy of an opinion from the Virginia Attorney General, which Officer Kettering read and correctly determined had no legal force in Maryland. Id. Evans found an analogous opinion from the Maryland Attorney General on his smartphone, but Officer Kettering refused to read the document. Id.

Instead, he issued Trespass Notifications against Rivero and Evans that prohibited them for a one-year period from entering the property at "19101 Peach Tree Road," an address parenthetically described as "Lewis Orchards." Rivero Trespass Notification Form, Cty. Mot. Ex. B., ECF No. 45–3; Evans Trespass Notification Form, Cty. Mot. Ex. B.; Am. Compl. ¶¶ 41, 43. As a factual basis for the Notifications, the forms state that Rivero and Evans had engaged in "[u]nwanted distribution of literature" on Lewis Orchards that had not been "[ ]authorized by [the] agent of [the] property." Rivero Trespass Notification Form; Evans Trespass Notification Form; Am. Compl. ¶ 44. Linda Lewis signed each Notification, affirming that she was the "owner or agent" of the property at issue. Id. The Notifications stated that failure to comply by Rivero or Evans would result in "immediate arrest" and criminal prosecution pursuant to Md. Code Ann., Crim. Law §§ 6–401 to 410. Rivero Trespass Notification Form; Evans Trespass Notification Form; Am. Compl. ¶ 45. Rivero and Evans understood the Notifications to bar them from entering Lewis Orchards in its entirety, including the migrant farmworker residences and their curtilage. Id. ¶ 44.

Rivero has attempted to follow up with the Lewis Orchards farmworkers over the telephone but states that they are less willing to talk with her than they were during their previous in-person interaction. Id. ¶ 49. Based on this observation and the "big meeting" that Rivero and Evans allegedly overheard Lewis organizing, Legal Aid believes that the Lewises have instructed their workers not to communicate with the organization. Id. ¶¶ 46, 48, 50.

Rivero and Legal Aid filed this lawsuit on April 20, 2016. Compl., ECF No. 1. Three days later, Montgomery County Police Department Commander David Anderson rescinded the Trespass Notifications. Email from David Anderson, Commander, Montgomery Cty. Police Dep't, to Deborah Jeon, Legal Dir., ACLU of Md. (Apr. 23, 2016 1:52 P.M.), Cty. Mot., Ex. C, ECF No. 45–4; Id. ¶ 53. Notwithstanding the rescission of the Notifications, the Plaintiffs continue to pursue a § 1983 claim against Officer Kettering in his individual and official capacities (Count I), for which they seek compensatory and punitive damages as well as injunctive relief. Id. ¶¶ 13, 56–61, Prayer for Relief ¶¶ B, E–F. In addition, they are pursuing a tort claim against both Kettering and Montgomery County for violation of their state constitutional rights (Count II), for which they seek compensatory damages and injunctive relief. Id. ¶¶ 62–66, Prayer for Relief ¶¶ B, F. Finally, the Plaintiffs seek a declaratory judgment stating that the Defendants violated their rights under the First Amendment and Article 40 of the Maryland Declaration of Rights and that the Defendants cannot prevent them from visiting farmworkers living on the Lewis Orchards property.³ Id. ¶¶ 67–75, Prayer for Relief ¶¶ A, C.

Standard of Review

Defendants move to dismiss pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). "A court should grant a Rule 12(b)(1) motion 'if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.' " El–Amin v. Int'l Longshoremen's Ass'n Local No. 333 , No. CCB-10-3653, 2011 WL 2580630, at *2 (D. Md. June 28, 2011) (quoting Evans v. B.F. Perkins, Co. , 166 F.3d 642, 647 (4th Cir. 1999) ). "A Rule 12(b)(1) motion to dismiss is not limited to challenges to jurisdiction appearing from the face of the complaint. In considering the allegations, the court may consider extrinsic evidence and, if such evidence is disputed, may weigh and determine the facts."

United States ex rel. Ackley v. Int'l Bus. Mach. Corp. , 76 F.Supp.2d 654, 659 (D. Md. 1999). Courts "regard the pleadings' allegations as mere evidence on the issue," and may consider additional evidence. Richmond, Fredericksburg & Potomac Ry. v. United States , 945 F.2d 765, 768 (4th Cir. 1991). Notably, if " 'a defendant proffers evidence that calls the court's jurisdiction into question,' " then "no presumption of truthfulness attaches to the plaintiff's allegations." Ackley , 76 F.Supp.2d at 659 (quoting Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n , 149 F.3d 679, 685 (7th Cir. 1998) ). When a defendant...