Univ. Gardens Apartments Joint Venture v. Johnson

• Decision Date: 09 March 2006
• Docket Number: No. CIV.A. DKC2005-0788.,CIV.A. DKC2005-0788.
• Citation: 419 F.Supp.2d 733
• Parties: UNIVERSITY GARDENS APARTMENTS JOINT VENTURE, et al. v. Jack B. JOHNSON, County Executive, Prince George's County, Maryland, et al.
• Court: U.S. District Court — District of Maryland

419 F.Supp.2d 733

UNIVERSITY GARDENS APARTMENTS JOINT VENTURE, et al. v. Jack B. JOHNSON, County Executive, Prince George's County, Maryland, et al.

No. CIV.A. DKC2005-0788.

United States District Court, D. Maryland.

March 9, 2006.

COPYRIGHT MATERIAL OMITTED

Stephen C. Glassman, Glassman and Bullock, Vienna, VA, Michael E. Winer, Law Firm of Michael E. Winer, College Park, MD, Steven A. Michael, Law Office of Steven A. Michael, Silver Spring, MD, for Plaintiffs.

William M. Manico, Upper Marlboro, MD, for Defendants.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution is the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by Defendants Prince George's County Executive Jack B. Johnson and Prince George's County. The issues have been briefed fully and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants' motion to dismiss will be granted. Count 1 will be dismissed with prejudice, but Counts 2, 3 and 4 will be dismissed without prejudice.

I. Background

University Gardens Apartments Joint Venture, Penn Southern Apartments Joint Venture, and Hampshire Village Apartments Joint Venture (collectively, "Plaintiffs") are all Maryland general partnerships engaged in the ownership and operation of three multifamily residential apartment properties located within Prince George's County. Plaintiffs allege the following facts. In 1988, the Apartment and Office Building Association ("AOBA"), a trade association, met with the former County Executive and Prince George's County ("County") to deal with increasing criminal activity in and around multifamily residential communities throughout the County. They reached an agreement that called for increasing the bi-annual apartment licensing fees by twenty-five dollars per apartment unit in order to fund additional police officers who would be assigned to patrol multifamily units. The agreement would provide one hundred fulltime sworn police officers, over and above the standard number of police officers provided by the County.

As a result of the agreement, the County Council passed emergency legislation to increase these licensing fees. Despite the twenty-five dollar increase, neither the County Executive nor the County increased the number of police officers assigned to patrol multifamily units in the County. Plaintiffs and other property owners have made repeated requests to uphold the agreement, however, the County Executive and the County have failed to provide adequate police protection to residents of multifamily properties. Plaintiffs further allege that, since 1988, Defendants or their predecessors have not increased the standard number of officers patrolling throughout the County, despite a rise in crime.

Beginning in mid-January 2005, County Executive Jack B. Johnson began issuing press releases on the County's website and making speeches in which he claimed that the rise in crime in the County was due, in part, to the failures of Plaintiffs and those similarly situated to Plaintiffs. At some point, Mr. Johnson and the County Police Chief compiled the "Apartment Action List" of the County's "most crime ridden apartment complexes" based on 2004 crime statistics. Twenty apartment complexes, including University Gardens Apartments and Hampshire Village Apartments, were identified on the list.¹ Mr. Johnson disclosed the list on March 15, 2005, during a press conference, and he stated in a press release posted on the County's website that one out of every 20 calls for police service came from these properties. Plaintiffs dispute Mr. Johnson's claim that he notified the apartment owners on the list, including Plaintiffs, before making his announcements. In addition, during a March 9, 2005, speech, Mr. Johnson indicated that he was prepared to use the power of eminent domain to tear down complexes that contribute to the County's crime problems.

Plaintiffs assert that the statements Mr. Johnson made at the press conferences and in press releases published on the County's website are untrue. Plaintiffs state that Mr. Johnson did not verify that the calls attributed to Plaintiffs' properties had in fact come from those properties, nor did he identify the nature of those calls, such as whether the calls were related to crime. With respect to Penn Southern Apartments, Plaintiffs assert that the apartments are located in a low-crime area and account for a minimal volume of calls. Plaintiffs maintain they were damaged as a result of Mr. Johnson's statements because potential tenants would not execute leases with Plaintiffs, the value of Plaintiffs' properties was reduced, and their creditor relationships were impaired. They also state that "Defendants seek to shift the responsibility of protecting the public from the Police Department to the property owners" (paper 1, ¶ 36), and this shift is contrary to the laws of the state of Maryland and the County's Code and Charter.

Plaintiffs filed a lawsuit March 24, 2005, asserting the following Counts: (1) civil rights violation pursuant to 42 U.S.C. § 1983, (2) intentional interference with business relations, and (3) breach of contract.² In Count 4, Plaintiffs also seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring:

a. That the actions of the Defendants constitutes [sic] a violation of the laws of the State of Maryland and the County b. That the agreements of the County with the Plaintiffs and others by failing to provide adequate numbers of appropriate law enforcement officers so to provide for the safety and security of those who reside in multiple residential dwelling units owned by the Plaintiffs.³

(Paper 1, at 1169). Plaintiffs also request an injunction, pursuant to Fed.R.Civ.P. 65, enjoining Defendants from making additional defamatory statements about Plaintiffs and compelling the County to meet its staffing requirements.

Defendants have filed a motion to dismiss asserting a variety of arguments. On Count 1, Defendants argue that Plaintiffs have failed to state a § 1983 due process claim. On Count 2, Defendants assert that the County possesses governmental immunity, Mr. Johnson is entitled to statutory immunity, and Plaintiffs have failed to state a claim. On Count 3, Defendants aver that they have not waived immunity and any alleged breach of contract is beyond the statute of limitations. Finally, with respect to the request for declaratory judgment and an injunction in Count 4, Defendants assert that Plaintiffs' complaint presents a non justiciable political question.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). Accordingly, a 12(b)(6) motion ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2).

In its determination, the court must consider all well-pled allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir.1969). The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979).

III. Count 1: § 1983 Due Process

Plaintiffs allege a § 1983 violation by claiming that they have "protected property interests . . . in their business relations, the value of their property and to be free of stigma imposed by the government which affects and diminishes Plaintiffs' property value and business relations." (Paper 1, ¶ 44). In their opposition memorandum, Plaintiffs state more specifically that they have a recognized property interest in their business goodwill, and that Mr. Johnson's statements linking Plaintiffs' properties to crime "erode[d] Plaintiffs' goodwill and wrongly impose[d] a stigma." (Paper 12, 1119).

To prevail on a claim pursuant to § 1983, a plaintiff must allege that (1) the defendant "deprived him of a right secured by the Constitution of the United States" and (2) "any such deprivation was achieved under color of state law." Paul v. Davis, 424 U.S. 693, 696-97, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(footnote omitted). There is no dispute that Defendants' actions constituted state action.

State-law defamation, standing alone, does not deprive a plaintiff of "liberty" or "property" "sufficient to invoke the procedural protection of the Due Process Clause." Paul, 424 U.S. at 701, 96 S.Ct. 1155. To state a due process claim, a plaintiff must also allege that, in addition to the defamatory statement, a right or status was altered or extinguished. Such § 1983 claims commonly are referred to as a "stigma plus" claim. Velez v. Levy, 401 F.3d 75, 87 (2nd Cir.2005). The Court has recognized, iter alia, the right to operate a vehicle where the state...