Romig v. Montgomery Cnty.

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RAYMOND ROMIG, Plaintiff, v. MONTGOMERY COUNTY, Defendant.

Civil Action No. TDC-21-1475

United States District Court, D. Maryland

March 31, 2023

MEMORANDUM OPINION

THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE

Plaintiff Raymond Romig filed this civil action pursuant to 42 U.S.C § 1983 against Defendant Montgomery County, Maryland ("the County") in which he alleges that the County violated his right to due process of law under the Fourteenth Amendment to the United States Constitution and imposed an excessive fine in violation of the Eighth Amendment when it seized 102 chickens from his residence in Burtonsville Maryland in November 2019. Pending before the Court is the County's Motion to Dismiss, which is fully briefed. Upon review of the pleadings and submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion to Dismiss will be GRANTED!

BACKGROUND

I. Animal Seizure

On November 18, 2019, Animal Services Officer Angel Ricketts of the .Montgomery County Police Department, Animal Service Division ("ASD"), was responding to a call in an area of the County north of Burtonsville, Maryland when she saw rooster cages on another property in the area. That property, located on Bell Road in Burtonsville, was a small farm that belonged to Romig ("the Property"). When Officer Ricketts asked Romig to allow her to enter the Property, Romig agreed.

Two days later, on November 20, 2019, Officer Ricketts filed an application for a search warrant for the Property pursuant to Montgomery County Code § 5-3 01(d), which provides that "[a]n animal control officer may enforce an animal control law by searching private property and seizing evidence^-or animals, under State law or a warrant issued by a court." Montgomery Cnty., Md., Code ("M.C.C.") ch. 5 § 5-301 (2023). In the application, Officer Ricketts stated that on November 18,2019, while Romig was showing her where his birds and dogs were kept around the Property, she observed overgrowth and debris littered throughout the perimeter of the Property. She also saw what she considered to be evidence that Romig was raising chickens for breeding purposes and evidence of animal cruelty. Specifically, Officer Ricketts stated that she observed caged and uncaged birds, birds at the rear of the Property without proper shelter, and multiple single cage units housing individual roosters, which Officer Ricketts deemed to be "indicative of the housing used in cock fighting establishments." Second Amended Complaint ("SAC") It 24-25, ECF No. 17. According to Romig, however, individuals who raise roosters may use multiple . single cage units for reasons other than cockfighting, as roosters are often separated because their j natural instinct is to fight if left together.

Officer Ricketts also observed multiple roosters with combs and wattles removed, which she considered to be a practice used only in relation to cockfighting, in order "to protect the birds from injury" during a fight. Id. ¶¶ 27-28. According to Officer Ricketts, there is no legitimate agricultural purpose for removing combs and wattles. Romig, however, asserts that the practice I of removing combs and wattles, known as "dubbing," is required by the American Poultry Association and the American Bantam Association "in order for chickens to be shown at one of their sponsored events." Id. ¶ 29. Romig also claims that dubbing helps to maintain the health of male chickens during the winter.

Officer Ricketts also stated in the application that she observed roosters and hens housed together in pens, which she deemed to be "indicative of breeding establishments." Id. ¶ 30. According to Romig, breeding chickens is legal, and he acknowledged that he did so. Specifically, he engages in breeding to preserve "valuable poultry bloodlines" and to protect certain endangered breeds from extinction. Id. ¶ 31.

Finally, Officer Ricketts observed multiple trash containers of "high-quality feed" and several bags of "starter feed," which she considered to be indicative of a cockfighting and breeding establishment. Id. ¶ 32. Romig asserts that such feed is consistent with that used for any chicken breed and does not provide any extra nutrition that would be relevant to cockfighting.

On November 22, 2019, the ASD executed the search warrant and seized 102 chickens from the Property. According to Romig, the chickens were in demonstrably good health at the time they were seized. The chickens were then placed in the custody and care of the ASD.

That same day, the ASD issued to Romig a written Notice of Impoundment ("the Notice"), signed by ASD Director Thomas J. Koenig, informing Romig of the seizure and of his right to appeal the ASD's determination to impound his animals. Notice at 1, Mot. Dismiss Ex. 1, ECF No. 21-2. Specifically, the Notice stated, "[Y]ou have 5 days to appeal the Director's decision to indefinitely impound the animal(s) to the County's Animal Matters Hearing Board ("the Board")." Id. The Notice further stated, "If you do not file an appeal to the Board challenging the indefinite impoundment during the 5-day period for filing an appeal, the Director may proceed to dispose of your animal(s) in any manner authorized by the County's Animal Control law." Id. It included a Hearing Application Form through which Romig could request a hearing on his appeal.

Romig was also notified that if he chose to file an appeal, he would be "required to prepay to the County, within five days of this notification... the estimated cost of caring for [his] animals for a 30-day period," which the ASD calculated to be $14,000. Id; SAC ¶¶ 43-14. Any failure to pre-pay the costs would "result in the animal(s) being deemed abandoned, at which point the animals(s) becomes the property of Montgomery County." Notice at 2. The Notice stated, however, that the ASD Director could waive or modify the pre-payment requirement "if you provide evidence that prepayment for days of care will be a serious financial hardship." Id. The Notice also provided that Romig could appeal the determination of the amount of required prepayment of costs.

The Notice stated that while animals are in protective custody with ASD, "during any appeal process prior to a Board decision," the animals "would NOT be euthanized unless medically necessary." Id. It warned, however, that if "by close of business on November 27,2019," Romig had not filed an appeal challenging the impoundment decision and had not filed a first monthly pre-payment of boarding costs or filed an appeal of the boarding costs, "then all of your animals . .. will be considered abandoned, and will become the property of Montgomery County." Id.

Romig did not file a notice of appeal by November 27, 2019 or make any pre-payment. j • According to Romig, the Board held a hearing on an unspecified date and approved the seizure. On December 6,2019, a notice of animal abandonment was issued in relation to Romig's chickens.On December 9, 2019, Romig filed a notice of appeal of the decision to keep-the seized chickens and of the determination that the cost of housing the chickens was $14,000. He also requested a waiver of this cost. On January 13, 2020, the Board denied Romig's appeal as untimely.. Romig v. Montgomery Cnty. Dep % of Police Animal Servs. Division ("Romig F), No. 478029V, Opinion & Order at 2 (Cir. Ct. Montgomery Cnty. Nov. 3,2021), ECF No. 22-1.

On January 21, 2020, Romig filed a Petition for Judicial Review of the Board's decision with the Circuit Court of Montgomery County, Maryland ("the Circuit Court"). Romig also requested that the Circuit Court bar the County from taking any action that would harm his chickens until after a hearing. However, during December 2019 and January 2020, almost all of Romig's chickens either died due to starvation or were euthanized by the County.

On June 11, 2021, while Romig's Petition for Judicial Review was still pending in the Circuit Courts Romig filed the original Complaint in the present action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983.

On November 3, 2021, the Circuit Court dismissed Romig's Petition on the grounds that the Board correctly denied Romig's appeal as untimely, as it was filed 13 days after the deadline, and that it was moot because the chickens had already been euthanized. Romig I, No. 478029V, Opinion & Order at 8.

II. Criminal Charges

Meanwhile, on November 21, 2019, Romig was criminally charged with ten counts of aggravated cruelty to animals, in violation of Md. Code Ann, Crim. Law § 10-606 (Lexis Nexis 2021), 10 counts of animal cruelty based on cockfighting, in violation of Md. Code Ann., Crim. Law § 10-608 ("Section 10-608"), and two counts of possessing implements of cockfighting, in violation of Section 10-608. State v. Romig, No. 2D00405092 (Montgomery Cnty. Dist. Ct 2019),, available at https://casesearch.courts.state.md.us (last visited Mar. 30, 2023). Romig ultimately entered into a plea agreement and pleaded guilty in the Circuit Court for Montgomery County in October 2020 to one count of conspiracy to possess cockfighting implements under Section 10-608. As part of the plea agreement, Romig was permitted to retain the hens already living on the Property if he followed an agreement relating to their care, but he agreed not to own any roosters for a two year period, until October 2022.

III. The Complaint

In the presently operative Second Amended Complaint, Romig alleges in Counts 1 and 2, violations of his Fourteenth Amendment right to due process of law based on his assertions that (1) Md. Code Ann., Crim. Law § 10-615(b)(1) ("Section 10-615(b)(1)"), which authorizes animal control officers to seize animals to...