Horowitz v. Sherman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

ROBERT HOROWITZ, et al.

:

v. : Civil Action No. DKC 19-2459

:

BRUCE SHERMAN, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this

challenge to a collections action are the motions to dismiss

filed by Defendants Selzer Gurvitch Rabin Wertheimer & Polott,

P.C. (“Selzer”), Maury S. Epner, and Patrick J. Kearney

(collectively, the “Selzer Defendants”) (ECF No. 18), and by

Defendants the Montgomery County Sheriff’s Office (“MCSO”),

Bruce Sherman, Yorgos Balaras, Robin Lewis, Peterson Pichardo,

Omar Rivera, Nelson Rosales, and Kevin Brown (collectively, the

“Law Enforcement Defendants”) (ECF No. 20), and the motion for

leave to amend filed by pro se Plaintiffs Cathy, Robert, and

Elizabeth Horowitz (collectively, “Horowitzes” or “Plaintiffs”)

(ECF No. 23). The issues have been briefed, and the court now

rules, no hearing being deemed necessary. Local Rule 105.6.

For the following reasons, the motions to dismiss will be

granted. The motion for leave to amend will be denied but, as

will be discussed, amendment may be permissible for a limited

reason not addressed by Plaintiffs’ motion and therefore

Plaintiffs will have 21 days within which to file another motion

for leave to amend.

I. Background1

This case is the latest in a long history of litigation.

The facts relevant to this action begin November 2014, when

Selzer obtained a judgment against Cathy and Robert Horowitz for

unpaid legal fees in the Circuit Court for Montgomery County,

Maryland. After entry of judgment, Selzer began collection

efforts.

In January 2015, Selzer filed a motion for forcible entry

to levy upon personal property in the Horowitzes’ home. Cathy

and Robert Horowitz objected to the motion. In April 2015,

Circuit Court Judge Michael D. Mason denied the motion but

“ordered in the alternative that [Cathy and Robert Horowitz]

admit any ‘appraiser’ designated by Selzer . . . to catalog and

photograph all personal property.” (ECF No. 1, ¶ 16). Cathy

and Robert Horowitz did not comply with the appraiser order.

Selzer moved for a show cause order seeking to hold Cathy

and Robert Horowitz in contempt. (ECF No. 18-1, at 4). “On

October 21, 2015, the Circuit Court conducted a show cause

hearing, found both Cathy and Robert Horowitz in contempt, and

1 Unless otherwise noted, the facts outlined here are set

forth in the complaint and construed in the light most favorable

to Plaintiffs.

directed Robert Horowitz to serve 30 days incarceration in the

local detention center.” (Id.). The Circuit Court “deferred

the sentence of incarceration until November 20, 2015, and

provided that Mr. Horowitz could purge the contempt by admitting

the sheriff’s deputies to his home for the purpose of conducting

an inventory and levy.” (Id., at 4-5). Cathy and Robert

Horowitz continued to refuse entry to the sheriff’s deputies.

On December 14, 2015, Selzer moved for a body attachment

for the arrest of Robert Horowitz. “After a hearing on April

13, 2016, [the Circuit Court] denied the body attachment and

gave [Cathy and Robert Horowitz] until April 18, 2016 to permit

the search and inventory of their home.” (ECF No. 18-1, at 11).

Cathy and Robert Horowitz did not permit the search and

inventory.

Selzer again moved for a body attachment and the Circuit

Court granted the motion, over Cathy and Robert Horowitzes’

objection, on July 28, 2016. (ECF No. 18-1, at 11). The

Circuit Court issued a body attachment order on August 2, 2016.

(Id.). Plaintiffs allege that, on August 24, 2016, Messrs.

Epner and Kearney, “their counsel, counsel for the MCSO, and

possibly others, were present on a phone call together and

decided to seek enforcement of the body attachment.” (ECF No.

1, ¶ 20). On August 25, 2016, Officer Sherman approved

enforcement of the body attachment and Officers Brown and

Rosales arrested Robert Horowitz at his residence. (Id., ¶¶ 22-

23). Plaintiffs allege that Officers Brown and Rosales

effectuated the arrest “violently” and that the arrest

“result[ed] in several injuries.” (Id., ¶ 23). Plaintiffs

elaborate that Officer Brown “made several unprovoked, loud,

derogatory comments about Robert Horowitz, and his purported

religious views,” (id., ¶ 25), and that Officer Rosales “loudly

and profanely cursed” Robert Horowitz (id., ¶ 23). One day

after his arrest, Robert Horowitz consented to a search of his

dwelling and Officers Balaras, Lewis, Pichardo, and Rivera

searched, inventoried, and photographed the Horowitzes’

property.2 (Id., ¶ 27-29).

On August 26, 2019, the Horowitzes initiated the present

action and filed a complaint asserting four claims: (1)

violation of 42 U.S.C. § 1983, alleging violations of 18 U.S.C.

§ 1951 and of the First, Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution (Count I); (2)

violation of 42 U.S.C. § 1983, styled as a Monell claim (Count

II); (3) violation of 42 U.S.C. § 1985 (Count III); (4) abuse of

process (Count IV). (ECF No. 1). Both the Law Enforcement

Defendants and the Selzer Defendants filed motions to dismiss on

January 17, 2020. (ECF Nos. 18; 20). Plaintiffs filed a

2 Plaintiffs’ characterize Robert Horowitz’s consent as

coerced. (ECF No. 1, ¶ 27).

consolidated opposition to the motions to dismiss and also

requested leave to amend. (ECF No. 23). The Selzer Defendants

filed a response in opposition to Plaintiffs’ request for leave

to amend and a reply in support of their motion to dismiss.

(ECF No. 26). The Law Enforcement Officers filed a reply in

support of their motion to dismiss (ECF No. 27), and a response

in opposition to Plaintiffs’ request for leave to amend (ECF No.

28). Plaintiffs filed a consolidated reply in support of their

request for leave to amend. (ECF No. 29).

II. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In

evaluating the complaint, unsupported legal allegations need not

be accepted. Revene v. Charles Cty. Comm’rs, 882 F.2d 870, 873

(4th Cir. 1989). Legal conclusions couched as factual

allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009), as are conclusory factual allegations devoid of any

reference to actual events. United Black Firefighters of

Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

“[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has

alleged – but it has not ‘show[n]’ – ‘that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting

Fed.R.Civ.P. 8(a)(2). Thus, “[d]etermining whether a complaint

states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. In reviewing a

motion to dismiss, “a federal court may consider matters of

public record such as documents from prior state court

proceedings.” Walker v. Kelly, 589 F.3d 127, 139 (4th Cir.

2009).

III. Analysis

A. Defendants’ Motions to Dismiss

1. Montgomery County Sheriff’s Office

The Law Enforcement Defendants first contend, correctly,

that the MCSO “is not a separate legal entity subject to suit.”

(ECF No. 20-1, at 8). Plaintiffs seemingly concede this point.

(ECF No. 23, at 12) (“The sui juris issue was a good faith

mistake that resulted in no prejudice, because Sheriff Popkin

was served for the [MCSO] in accordance with his

instructions.”). The MCSO is not an entity capable of being

sued under Maryland law. See Hines v. French, 157 Md.App. 536,

573 (2004) (“County police departments are agents of the State

and should not be viewed as separate legal entities.”); Boyer v.

State, 323 Md. 558, 572 n.9 (1991) (“[T]he ‘Sheriff’s

Department’ is not an entity capable of being sued.”); Jarvis v.

Montgomery Cty., No. 11-00654-AW, 2011 WL 5547979, at *3 (D.Md.

Nov. 14, 2011) (“Under [Fed.R.Civ.P. 17(b)], a plaintiff may

bring suit against any entitle capable of being sued. Under

Maryland law, the Sheriff’s Office is not such an entity.”).

Plaintiffs’ allegations against the MCSO fail to state a claim

and will be dismissed.

2. Quasi-Judicial Immunity

The Law Enforcement Defendants next contend that

“[a]bsolute quasi-judicial immunity bars this suit against the

individual deputy defendants.” (ECF No. 20-1, at 8).

Plaintiffs disagree and argue that the United States Court of

Appeals for the Fourth Circuit, in an earlier, related case,

determined that qualified immunity, not quasi-judicial immunity,

applied to law enforcement officers. (ECF No. 23, at 2 (citing

Horowitz v. Mason, 681 F.App’x 238, 240-41 (4th Cir. 2017))).

Plaintiffs contend that Defendants do not seek qualified

immunity here. (Id.).

Quasi-judicial immunity bars Plaintiffs’ suit, as pleaded,

against the Law Enforcement Defendants. As Judge Blake has

noted:

Absolute quasi-judicial immunity extends to non-

judicial officers “performing tasks so integral or

intertwined with the judicial process that these

persons are considered an arm of the judicial officer

who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th

Cir. 1994). The basis for affording non-judicial

officials absolute immunity is to avoid the “danger

that disappointed litigants, blocked by the doctrine

of absolute immunity from suing the judge directly

[would] vent their wrath on clerks, court reporters,

and other judicial adjuncts.” Sindram v. Suda, 986

F.2d 1459, 1461 (D.C. Cir. 1993) (alteration in

original) (quoting Dellenbach v. Letsinger, 889 F.2d

755, 763 (7th Cir. 1989)). Courts have therefore

extended absolute immunity to protect, among others,

clerks of court, law enforcement officers, and others

who enforce court orders. See, e.g., Foster v. Walsh,

864 F.2d 416, 417-18 (6th Cir. 1988) (holding the clerk

of court to be absolutely immune for issuing an

erroneous warrant pursuant to the court’s order);

Henry v. Farmer City State Bank, 808 F.2d 1228, 1238-

39 (7th Cir. 1986) (“[P]olice officers, sheriffs, and

other court officers who act in reliance on a facially

valid court order are entitled to quasi-judicial

immunity from suit.”).

Kendrick v. Cavanaugh, No. 10-2207-CCB, 2011 WL 2837910, at *4

(D.Md. July 14, 2011). Plaintiffs’ argument about the dearth of

Fourth Circuit case law regarding the applicability of quasi-

judicial immunity to law enforcement officers is unpersuasive.

The Fourth Circuit has recognized that quasi-judicial immunity

“extends to the judge’s subordinates for functions that are more

administrative in character that have been undertaken pursuant

to the judge’s explicit direction.” In re Mills, 287 F.App’x

273, 279 (4th Cir. 2008) (alterations and quotation marks

omitted). The Fourth Circuit emphasized “the distinction

between protection from liability simply for following a judge’s

order and protection from liability for carrying out a judge’s

order in a manner not sanctioned by the judge.” Id.

Here, Plaintiffs allege that Officer Sherman “approved

enforcement of the body attachment” order, that Officers Brown

and Rosales “violently arrested Robert Horowitz at his

residence, resulting in several injuries[,]” that Officer

Rosales “presented Mr. Horowitz with Judge Mason’s contempt and

body attachment orders,” and that, after Mr. Horowitz consented

to the search, Officers Balaras, Lewis, Pichardo, and Rivera

“proceeded to search, inventory[,] and photograph the family’s

property[.]” (ECF No. 1, ¶¶ 22-29). The allegations against

Officers Balaras, Lewis, Pichardo, Rivera, and Sherman merely

assert that they took action to carry out Judge Mason’s orders.

The allegations against Officers Brown and Rosales, however,

suggest that Officers Brown and Rosales may have carried out

Judge Mason’s orders in an unsanctioned manner by using

excessive force. The United States Court of Appeals for the

Third Circuit recently explained the limits of quasi-judicial

immunity in a case involving an excessive force claim. See

Russell v. Richardson, 905 F.3d 239 (3rd Cir. 2018). The Third

Circuit concluded:

Quasi-judicial immunity extends only to the acts

authorized by court order, i.e., to the execution of a

court order, and not to the manner in which it was

executed. . . . Because an officer’s fidelity to the

specific order of the judge marks the boundary for

labeling his act quasi-judicial, and a court order

carries an implicit caveat that the officer follow the

Constitution in executing it, where the claim is that

an officer exceeded those bounds, quasi-judicial

immunity does not stand in the way.

Id. at 250 (alterations, citations, footnotes and quotation

marks omitted).

The Russell limit to quasi-judicial immunity would apply if

Plaintiffs challenge the manner in which Defendants executed the

Circuit Court’s orders. Plaintiffs’ complaint is somewhat

confused, however, with regard to its references to

constitutional provisions. The Fourth Amendment challenge

focuses on the warrantless nature of the inventory and levy.

(ECF No. 1, ¶¶ 28, 37, 41-50, 54, 62). Robert Horowitz does not

purport to raise directly a Fourth Amendment excessive force

claim.3 Instead, he mistakenly refers to the Fifth and

Fourteenth Amendments in referring to the violent arrest. (Id.,

¶ 63). In the current complaint, the legality of the orders

themselves represents Plaintiffs’ “core contention” – not the

actions of the Law Enforcement Defendants. (ECF No. 23, at 1).

The Law Enforcement Defendants were acting as an arm of the

court when they conducted the inventory and levy, and they are

therefore immune from suit to the extent they were carrying out

the orders. Plaintiffs’ claims, as currently pled, against the

3 Even if Robert Horowitz did intend to raise an excessive

force claim, his allegations here that the arrest was “violent”

and resulted in injuries would be insufficient to state a claim.

He must articulate facts, not just conclusions.

Law Enforcement Defendants will be dismissed.4 As will be

discussed, however, if Plaintiffs believe they can adequately

plead an excessive force claim against Officers Brown and

Rosales, they will be given an opportunity to try.

Given the dismissal of MCSO and the absolute quasi-judicial

immunity of the remaining Law Enforcement Defendants, only

Counts I, III, and IV remain against the Selzer Defendants and

only Elizabeth Horowitz brings these claims.5

3. 42 U.S.C. § 1983 (Count I)

Count I alleges violation of 42 U.S.C. § 1983. Under

§ 1983, a plaintiff may file suit against any “person who, under

color of [law] subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws[.]” To state a

4 Moreover, even if absolute quasi-judicial immunity did not

apply, the Law Enforcement Defendants enjoy qualified immunity,

which “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Merely carrying out court

orders is the quintessential example of “good faith.” See,

Messerschmidt v. Millender, 565 U.S. 535, 546–48 (2012).

5 The Selzer Defendants observed that “according to the

prayers for relief in each Count, only Counts I, III, and IV are

alleged against [them], and only Elizabeth Horowitz brings those

three Counts against them.” (ECF No. 18-1, at 14 (emphasis in

original)). Plaintiffs do not contest this observation. (ECF

No. 29, at 10-11 (“[The Selzer Defendants] admit . . . that only

Elizabeth Horowitz is suing them.”)).

claim, a plaintiff must allege that: (1) a right secured by the

Constitution or laws of the United States was violated and

(2) the alleged violation was committed by a person acting under

the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

“Section 1983 ‘is not itself a source of substantive rights,’

but merely provides ‘a method for vindicating federal rights

elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271

(1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)).

The Selzer Defendants argue that Elizabeth Horowitz fails

to state a claim because they did not act under color of state

law and because she did not adequately plead the

constitutionally and statutorily protected rights upon which the

Selzer Defendants allegedly infringed.6 Plaintiffs allege that

the Selzer Defendants conspired with state officials to deprive

Elizabeth Horowitz of rights and cite Lugar v. Edmondson Oil,

457 U.S. 922, 941 (1982), to support their argument that the

6 The Selzer Defendants also argue, in a footnote, that the

doctrine of collateral estoppel bars Plaintiffs’ § 1983 claim.

(ECF No. 18-1, at 16-17 n.5). They point to this court’s

earlier decision in Horowitz v. Mason, No. 15-3478-DKC, 2016 WL

1536321 (D.Md. Apr. 15, 2016). In the earlier case, the

Horowitzes filed a complaint against Messrs. Epner and Kearney,

among others, and alleged a § 1983 violation. Plaintiffs argue

that collateral estoppel does not bar this action because the

Selzer Defendants had not (successfully) moved for the body

attachment order when the earlier case was decided. (ECF No.

23, at 10). The Selzer Defendants do not address Plaintiffs’

argument in their reply. (ECF No. 26).

Selzer Defendants acted under color of law. (ECF No. 1, ¶ 40).

Plaintiffs elaborate that the Selzer Defendants “repeatedly

threatened over several months to use force and violence to

arrest Robert Horowitz.”7 (Id., ¶ 53).

“Lugar involved a § 1983 claim alleging the

unconstitutional deprivation of property under Virginia’s pre-

judgment attachment statute. In Lugar, the Supreme Court [of

the United States] held that that unlawful application of the

pre-judgment attachment statute did not constitute the state

action required for a successful § 1983 claim.” Jones v.

Poindexter, 903 F.2d 1006, 1011 (4th Cir. 1990) (citing Lugar,

457 U.S. at 940). The Supreme Court held that the plaintiff

“did present a valid cause of action under § 1983 insofar as he

challenged the constitutionality of the Virginia statute[, but]

he did not insofar as he alleged only misuse or abuse of the

statute.” Lugar, 457 U.S. at 942 (emphasis added); see also

Wyatt v. Cole, 504 U.S. 158, 161-62 (1992) (noting that Lugar

allowed § 1983 liability for private parties “if the statute was

constitutionally infirm). In Poindexter, the Fourth Circuit

affirmed the district court’s dismissal of a § 1983 action

against a private party who attempted to collect on a state

7 Even if Robert Horowitz raised a § 1983 excessive force

claim against Officers Brown and Rosales and alleged that the

Selzer Defendants conspired with Officers Brown and Rosales to

threaten violence and to use force, Elizabeth Horowitz does not

have an excessive force claim against the Selzer Defendants.

court judgment. 903 F.2d at 1011. The Fourth Circuit held that

there was no viable § 1983 claim against the defendant because

the plaintiff alleged that the private party defendant illegally

and improperly used state statutes and processes. The Fourth

Circuit also noted that a private party’s “use of state process

to attempt to enforce the judgment” does not “rise to the level

of action under color of law.” Id. Plaintiffs assert that the

Selzer Defendants violated Elizabeth Horowitz’s rights by

requesting the body attachment order to enforce the judgment.

(ECF No. 1, ¶ 18; ECF No. 23, at 10-12). The Selzer Defendants’

use of Maryland post-judgment procedures to enforce their

judgment against Cathy and Robert Horowitz does not constitute

action under color of state law as to Elizabeth Horowitz and

Count I will be dismissed.

4. 42 U.S.C. § 1985 (Count III)

Although not specified by subsection, Count III appears to

allege violation of 42 U.S.C. § 1985(3). (ECF No. 1, ¶ 84

(“Said conspiracy denied [P]laintiffs their equal protections,

privileges and immunities under the law.”)). To state a claim

under 42 U.S.C. § 1985(3), a plaintiff must prove:

(1) a conspiracy of two or more persons, (2) who are

motivated by a specific class-based, invidiously

discriminatory animus to (3) deprive the plaintiff of

the equal enjoyment of rights secured by the law to

all, (4) and which results in injury to the plaintiff

as (5) a consequence of an overt act committed by the

defendants in connection with the conspiracy.

A Soc’y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir.

2011) (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.

1995)). “Allegations of ‘parallel conduct and a bare assertion

of a conspiracy’ are not enough for a claim to proceed.” Thomas

v. Salvation Army S. Terr., 841 F.3d 632, 637 (4th Cir. 2016)

(quoting A Soc’y Without A Name, 655 F.3d at 347). Elizabeth

Horowitz does not allege that any specific class-based,

invidiously discriminatory animus motivated the Selzer

Defendants to support their § 1985(3) claim.8 Count III will be

dismissed.

5. Abuse of Process (Count IV)

Count IV is an abuse of process claim. “The tort of abuse

of process occurs when a party has ‘willfully misused criminal

or civil process’ against another party for a purpose different

than the proceeding’s intended purpose and thereby caused that

party damage (e.g., arrest, seizure of property, economic

injury).” State v. Rendelman, 404 Md. 500, 517 n.9 (2008).

“Process” under Maryland law means “any written order issued by

a court to secure compliance with its commands or to require

8 Indeed, Plaintiffs seem to concede that the complaint does

not allege animus when they state “[b]ias will be pleaded in the

amended complaint.” (ECF No. 29, at 6-7). Moreover, Elizabeth

Horowitz also fails to state a § 1985(3) claim because she has

no claim under § 1983. Painter’s Mill Grille, LLC v. Brown, 716

F.3d 342, 349 (4th Cir. 2013).

action by any person and includes a summons, subpoena, an order

of publication, a commission or other writ.” Md. Rule 1-202(w).

There are two “essential elements” of abuse of process

tort: “first, an ulterior purpose, and second, a [willful] act

in the use of the process not proper in the regular conduct of

the proceeding.” Attorney Grievance Comm’n of Md. v. Roberts,

394 Md. 137, 160 (2006) (quoting Palmer Ford, Inc. v. Wood, 298

Md. 484, 511 (1984). “Some definite act or threat not

authorized by the process, or aimed at an objective not

legitimate in the use of the process is required; and there is

no liability where the defendant has done nothing more than

carry out the process to its authorized conclusion, even though

with bad intentions.” Id. Here, the Selzer Defendants have

done nothing more than carry out Maryland’s post-judgment

procedures to an authorized conclusion – the satisfaction of

their judgment against Cathy and Robert Horowitz. Elizabeth

Horowitz fails to state an abuse of process claim and Count IV

will be dismissed.

B. Plaintiffs’ Motion for Leave to Amend

In their opposition to Defendants’ motions to dismiss,

Plaintiffs request leave to amend. (ECF No. 23, at 12; ECF No.

29). Defendants oppose this request. (ECF No. 26, at 1-5; ECF

No. 28).

When, as here, the right to amend as a matter of course has

expired, “a party may amend its pleading only with the opposing

party’s written consent or the court’s leave.” Fed.R.Civ.P.

15(a)(2). Fed.R.Civ.P. 15(a)(2) provides that courts “should

freely give leave [to amend] when justice so requires[,]” and

commits the matter to the discretion of the district court. See

Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 769 (4th

Cir. 2011). Denial of leave to amend is appropriate “only when

the amendment would be prejudicial to the opposing party, there

has been bad faith on the part of the moving party, or the

amendment would be futile.” Edwards v. City of Goldsboro, 178

F.3d 231, 242 (4th Cir. 1999) (emphasis in original) (quoting

Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).

Leave to amend may be denied as futile “if the proposed amended

complaint fails to satisfy the requirements of the federal

rules[,]” including federal pleading standards. Katyle v. Penn

Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) (quoting

United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525

F.3d 370, 376 (4th Cir. 2008)).

Plaintiffs’ currently requested amendments would be futile.

Plaintiffs identify the alleged invalidity of the appraiser

order as their “core contention” and argue that the resultant

orders were also allegedly invalid. (ECF No. 23, at 1

(“Plaintiffs’ core contention is that the appraiser order was

invalid, and that therefore the contempt order for violating it

was invalid, as was the purge requirement within that order

requiring the Horowitzes to consent to the warrantless search of

their dwelling and the body attachment to enforce it.”).

Plaintiffs already sought to challenge the validity of Judge

Mason’s orders to enforce the judgment and this court determined

that Younger abstention was warranted while there was an ongoing

state judicial proceeding. Horowitz v. Mason, No. 15-3478-DKC,

2016 WL 1536321, at *2-4 (D.Md. Apr. 15, 2016). The Maryland

Court of Special Appeals has since determined that the appraiser

order is not appealable because it is not a final judgment.

Horowitz v. Selzer, Gurvitch, Rabin, Wertheimer, Polott, &

Obecny, P.C., 2016 WL 7106897 (Md.App. 2016). The Court of

Special Appeals emphasized:

This should be a simple collections case. There

is no doubt whatsoever that the Horowitzes owe the

money. There is no doubt that [Selzer] is entitled to

collect the debt. The disputes lie entirely in how

[Selzer] can collect, a legitimate objective the

Horowitzes have thwarted actively, delayed now for

nearly two years, and, for what it’s worth,

mischaracterized and overdramatized. As if to

underscore these points, we can’t reach the merits

with regard to two of the three orders the Horowitzes

have appealed because those orders aren’t

appealable. . . .

The Horowitzes mischaracterize the contents of

the first order, which authorized an appraiser, and

the posture of the case. This is not a criminal case,

and the court has never authorized the Sheriff (or any

other law enforcement authority) to conduct a

warrantless search of the Horowitzes’ home. This is

now a collections case, and the Horowitzes' assets are

subject to execution. After [Selzer] obtained its

judgment, the Clerk issued a writ “directing the

sheriff to levy upon property of the judgment debtor

to satisfy a money judgment.” Md. Rule 2-641(a). But

when the Sheriff arrived to carry out that order, the

Horowitzes turned him away, which led to further

litigation and, eventually, the order permitting

[Selzer] to hire an appraiser — at its own expense —

and requiring the Horowitzes to give the appraiser

access to their home for the purpose of conducting the

appraisal.

Id. at *2 (footnotes omitted). Plaintiffs’ self-professed core

contention has been rejected and Plaintiffs’ proposed amendments

to advance their core contention are futile.

Nonetheless, Plaintiffs will be permitted to file another

motion for leave to amend albeit for limited reasons not

directly addressed in their motion. As discussed supra, Robert

Horowitz does not articulate a Fourth Amendment excessive force

claim. If, in good faith, he alleges that the force used

exceeded that which was reasonably necessary to effectuate his

arrest, he may state a claim. For that reason, Plaintiffs’

motion for leave to amend will be denied and Plaintiffs will

have 21 days to file another motion for leave to amend.9

9 Plaintiffs should note that a “federal court has the power

to issue prefiling injunctions where vexatious conduct hinders

the court from fulfilling its constitutional duty.” Whitehead

v. Viacom, 233 F.Supp.2d 715, 726 (D.Md. 2002) (quoting Tucker

v. Seiber, 17 F.3d 1434 (table), 1994 WL 66037, at *1 (4th Cir.

1994)). There are five factors to consider when evaluating a

prefiling injunction: “(1) the litigant’s history of vexatious

litigation; (2) whether the litigant has an objective good faith

belief in the merit of the action; (3) whether the litigant is

IV. Conclusion

For the foregoing reasons, the motions to dismiss will be

granted and the motion for leave to amend will be denied.

Plaintiffs may file another motion for leave to amend within 21

days. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

represented by counsel; (4) whether the litigant has caused

needless expense or unnecessary burdens on the opposing party

and/or the court; and (5) the adequacy of other sanctions.” Id.

“Ultimately, the question the court must answer is whether a

litigant who has a history of vexatious litigation is likely to

continue to abuse the judicial process and harass other

parties.” Id.