Bly v. Circuit Court for Howard County, MD et al

Filing 15

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 6/26/2019. (c/m 6/27/19 jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RAYMOND J. BLY,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-18-1333

CIRCUIT COURT FOR HOWARD
COUNTY, MD, et al.,

:
:

Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants Circuit Court for Howard
County, MD (“Circuit Court”), Hon. Lenore Gelfman (“Judge Gelfman”), and Wayne A.
Robey’s (“Clerk Robey”) Motion to Dismiss (ECF No. 7) and Plaintiff Raymond J. Bly’s
Motion to Amend My Complaint and Request Return Papers of Defendants (“Motion to
Amend”) (ECF No. 14).1 The Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons set out below, the Court
will deny Bly’s Motion and grant Defendants’ Motion in part and deny it in part.
I.

BACKGROUND2

In 1987, a jury in the Circuit Court for Howard County, Maryland convicted Bly
of “criminal charges, including a felony, predicated upon the victim of the alleged crimes

Also pending before the Court is Bly’s Motion for Leave to Proceed in Forma
Pauperis (ECF No. 6). The Court will deny the Motion because, although Bly is on a
fixed income, according to the application attached to his Motion, he owns several cars
and a house. (Mot. Leave Proceed Forma Pauperis at 1–2, ECF No. 6).
2
Unless otherwise noted, the Court takes the following facts from Bly’s Amended
Complaint, (ECF No. 2), and accepts them as true. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
1

being a ‘child.’” (Am. Compl. at 7, ECF No. 2). Bly “vigorously denied” the charges.
(Id.). At some point thereafter, Defendants “J. DOEs 1–N,” (“Doe Defendants”), acting
with the “authorization” or “acquiescence” of Judge Gelfman or Clerk Robey, “removed
the subject [case] records from their customary and appropriate place of storage
authorized by the Defendant Court and from their digital place within the data maintained
by the Maryland Judiciary,” whose public portal is the Maryland Judiciary Case Search.
(Id. at 1, 7, 14).
In December 2015, Bly moved for and was denied a new trial. (Id. at 9). In 2016,
he attempted to access his case records at the Clerk’s Office of the Circuit Court and at its
off-site records facility but was told that the records did not exist. (Id. at 11). Bly never
received any notice that his records might be sealed. (Id. at 7, 14). The removal of the
records interfered with Bly’s efforts to “overturn or materially undermine the credibility
of” his convictions, to question the integrity of the state courts, and to run for Congress.
(Id. ¶¶ 24, 27).
On January 31, 2018, Bly filed suit in this Court seeking to compel personnel from
the Circuit Court to release records relating to his criminal convictions for viewing by the
public. Compl. at 1, Raymond J. Bly v. Circuit Court for Howard County, MD (Bly I),
No. GLR-18-306, (D.Md. dismissed Feb. 7, 2018), ECF No. 1. Construing the complaint
in Bly I as a petition for writ of mandamus, the Court denied the petition and closed the
case. See Feb. 7, 2018 Order, Bly I, ECF No. 3. In seeking reconsideration, Bly
attempted to file an amended complaint, see Am. Compl., Bly I, ECF No. 4, which the

2

Court directed the Clerk to docket as the Complaint in this action, see Apr. 6, 2018 Order,
Bly I, ECF No. 10.
On May 8, 2018, Bly filed an Amended Complaint, alleging violations of his
rights to free speech, petitioning, association, access to judicial records, and right against
retaliation, all under the First Amendment to the U.S. Constitution; violations of his
substantive and procedural due process rights under the Fourteenth Amendment; and the
same violations under Articles 24 and 40 of the Maryland Declaration of Rights. (Am.
Compl. at 2–5).3 Bly brings his federal constitutional claims under 42 U.S.C. § 1983. (Id.
at 2). Bly seeks declaratory and injunctive relief, as well as money damages. (Id. at 17).
On September 5, 2018, Defendants filed their Motion to Dismiss. (ECF No. 7). On
September 28, 2018, Bly filed an Opposition. (ECF No. 13). To date, the Court has no
record that Defendants filed a Reply.
On October 24, 2018, Bly filed his Motion to Amend. (ECF No. 14). To date, the
Court has no record Defendants filed an Opposition.
II.
A.

DISCUSSION

Incorporation and Motion to Amend
The Court first addresses Bly’s attempts to amend his Amended Complaint.

Bly also alleges that unspecified people who made “comments conveying to
prospective counsel the warning that representation of [Bly] would be detrimental to their
legal careers and their ability to provide effective representation to their other clients”
interfered with his “efforts to obtain legal representation.” (Am. Compl. at 4–5, 11–12).
Bly does not clearly state the legal basis for this claim nor does he allege it against
Defendants. As a result, the Court will grant Defendants’ Motion with respect to this
claim.
3

3

1.

Incorporation

In his Amended Complaint, the operative pleading, Bly seeks to incorporate, or
“adopt[] by reference the entirety of his original and amended complaints filed in” Bly I.
(Am. Compl. at 2). While Rule 10 provides that “[a] statement in a pleading may be
adopted by reference . . . in any other pleading or motion,” Fed.R.Civ.P. 10(c), such
incorporation by reference “must be direct and explicit, in order to enable the responding
party to ascertain the nature and extent of the incorporation” and avoid confusion. Hinton
v. Trans Union, LLC, 654 F.Supp.2d 440, 446 (E.D.Va. 2009) (quoting 5A Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1326 (3d ed.
2004)), aff’d, 382 F.App’x 256 (4th Cir. 2010). This is especially important when a
plaintiff seeks to incorporate entire pleadings into an amended complaint because “an
amended pleading ordinarily supersedes the original and renders it of no legal effect.”
Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (quoting
Crysen/Montenay Energy Co. v. Shell Oil Co., 226 F.3d 160, 162 (2d Cir. 2000)). The
Hinton court concluded that the “plaintiff’s attempts at wholesale incorporations of his
prior complaints” were “a misuse of the Rule 10(c) incorporation privilege.” Hinton, 654
F.Supp.2d at 447. This Court has also held that a “[p]laintiff may not point to allegations
in two separate pleadings in order to state a claim that satisfies the requirements of Rule
8,” and that assertions in motion papers have “no effect” on the sufficiency of pleadings.
Wroblewski v. United States, No. DKC 08-3368, 2011 WL 1769989, at *4 (D.Md. May
9, 2011). Thus, the Court concludes that Bly’s attempt to incorporate pleadings from

4

another case is a misuse of the incorporation privilege. Accordingly, the Court will not
consider allegations in the pleadings in Bly I or in Bly’s Opposition in determining
whether Bly has stated a claim here.
2.

Motion to Amend

Bly’s one-sentence Motion to Amend simply seeks to identify one Doe Defendant
as “Circuit Administrative Judge Laura S Kiessling.” (Mot. Am. at 1, ECF No. 14).
Rule 15(a)(2) provides that “[t]he court should freely give leave [to amend a
complaint] when justice so requires.” Justice does not require permitting leave to amend
when amendment would prejudice the opposing party, the moving party has exhibited
bad faith, or amendment would be futile. See Edell & Assocs., P.C. v. Law Offices of
Peter G. Angelos, 264 F.3d 424, 446 (4th Cir. 2001) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)). Leave to amend would be futile when an
amended complaint could not survive a motion to dismiss for failure to state a claim. See
U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).
Bly’s Motion neither includes a proposed Second Amended Complaint nor
includes any facts about how Judge Kiessling was involved in the alleged removal of his
case records. It, therefore, does not state any claim against her and would not survive a
motion to dismiss. As a result, the Court will deny Bly’s Motion.

5

B.

Motion to Dismiss
1.

Standard of Review

The purpose of a motion under Federal Rule of Civil Procedure 12(b)(6) is to
“test[ ] the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999)). A complaint fails to state a claim if it does not contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2),
or does not “state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the
elements of the claim, the complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff’d sub nom. Goss v. Bank of
America, NA, 546 F.App’x 165 (4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual

6

allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not accept
unsupported or conclusory factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at 678.
Pro se pleadings are liberally construed and held to a less stringent standard than
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)); accord Brown v. N.C. Dep’t of Corr., 612 F.3d 720,
722 (4th Cir. 2010). Pro se complaints are entitled to special care to determine whether
any possible set of facts would entitle the plaintiff to relief. Hughes v. Rowe, 449 U.S. 5,
9–10 (1980). But “even a pro se complaint must be dismissed if it does not allege ‘a
plausible claim for relief.’” Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at
*3 (D.Md. Dec. 4, 2012) (quoting Iqbal, 556 U.S. at 679). “While pro se complaints may
‘represent the work of an untutored hand requiring special judicial solicitude,’ a district
court is not required to recognize ‘obscure or extravagant claims defying the most
concerted efforts to unravel them.’” Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391
(4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.
1985)).

7

2.

Analysis

In their Motion, Defendants argue that Bly fails to state a claim against them and
that various immunity doctrines bar his claims. Bly counters that Defendants are not
immune and that he has adequately stated his claims. The Court will first examine
whether Bly adequately states his claims in the Amended Complaint, and will then turn to
Defendants’ potential immunities.
a.

Constitutional Claims

“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)). To prevail
on a § 1983 claim, a plaintiff must demonstrate a deprivation of rights guaranteed by the
Constitution or laws of the United States and that the alleged deprivation was committed
by a “person” acting under color of state law. 42 U.S.C. § 1983 (2018); West v. Atkins,
487 U.S. 42, 48 (1988) (first citing Parratt v. Taylor, 451 U.S. 527, 535 (1981); and then
citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978)). “In analyzing a § 1983
claim, a court must first identify ‘the specific constitutional right allegedly infringed.’”
Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 343 (D.Md. 2011) (citing Albright, 510
U.S. at 271).
i.

Due Process

Bly pleads violations of both his procedural and substantive due process rights. To
plead a procedural due process claim under the Fourteenth Amendment, a plaintiff “must

8

first establish that he had a property or liberty interest at stake.” Smith v. Ashcroft, 295
F.3d 425, 429 (4th Cir. 2002) (citing Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993)).
Here, Bly has not made this threshold showing. Bly’s liberty is not at issue, so his only
possible interest is one of property. To have a property interest, “a person clearly must
have more than an abstract need or desire” or mere “unilateral expectation of it” and
instead must have “a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972). Property interests are not created by the Constitution but rather by
“existing rules or understandings that stem from an independent source such as state
law.” Id. Bly has cited no statute or case that suggests that he has a property interest in
the court records of his criminal case, and the Court finds none.4
Further, courts have concluded that criminal-defendants-turned-plaintiffs do not
have such a property interest. In Braun v. City of New York, the United States District
Court for the Southern District of New York concluded that the plaintiff had no
“legitimate claim of entitlement to his criminal records or their sealing” under Roth,
noting that “the records were government property[,] . . . neither owned nor possessed by
the plaintiff.” 284 F.Supp.3d 572, 580 (S.D.N.Y. 2018). The same logic applies here.
Thus, the Court concludes that Bly fails to state a procedural due process claim.
Substantive due process is a “far narrower concept” than procedural due process,
occurring “only where the government’s actions in depriving a person of life, liberty, or
property are so unjust that no amount of fair procedure can rectify them.” Love v.
4

For example, Maryland Rule 16-903(b) provides that court records are
“presumed to be open to the public for inspection,” which implies that the court records
are the court’s property and that no party possesses or controls them.
9

Pepersack, 47 F.3d 120, 122–23 (4th Cir. 1995). To state a substantive due process claim,
in addition to pleading a property or liberty interest, Bly must also plead that the
government action was “so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” Cty of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998). As stated above, Bly has identified no property right, and neither his life nor his
liberty is at issue. Bly’s allegations also do not shock the conscience. Thus, the Court
concludes that Bly fails to state a substantive due process claim.
Because Bly fails to state either a procedural or substantive due process claim, the
Court will grant Defendants’ Motion as to these claims.5
ii.

First Amendment and Article 40

Bly makes several First Amendment claims.6 The Court will address them in turn.
For the same reasons, the Court also concludes that Bly’s claim under Article 24
of the Maryland Declaration of Rights must be dismissed. Generally, “Article 24 due
process claims are read in pari materia with Fourteenth Amendment due process claims,
except in limited circumstances when Article 24 may be interpreted more broadly.” Ross
v. Cecil Cty. Dep’t of Soc. Servs., 878 F.Supp.2d 606, 622 (D.Md. 2012) (citing Koshko
v. Haining, 921 A.2d 171, 194 n.22 (Md. 2007)). Those limited circumstances have
included “placing stricter limits on prosecutorial discretion to enter nolle prosequi” and
granting a broader right to counsel and a greater protection from self-incrimination.
Koshko, 921 A.2d at 194 n.22. The main issue in Bly’s case, access to judicial records, is
not of the type that the Court of Appeals of Maryland has concluded warrants a broader
application of Article 24. See id.; Dua v. Comcast Cable of Maryland, Inc., 805 A.2d
1061, 1071 (Md. 2002).
6
To the extent Bly asserts claims on behalf of the news media or the general
public, he does not have standing to bring them. Standing concerns the threshold question
of the court’s subject-matter jurisdiction. CGM, LLC v. BellSouth Telecomm., Inc., 664
F.3d 46, 52 (4th Cir. 2011). As this Court has explained, standing “has both constitutional
and prudential components.” Bell v. Clarke, No. TDC-15-1621, 2016 WL 1045959, at *2
(D.Md. Mar. 16, 2016) (quoting Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)).
For prudential standing, “the plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third
5

10

aa.

Speech, Petitioning, and Association

Bly alleges Defendants’ “deprivation of and interference with access to the
judicial records violates [his] rights of free expression, petitioning, [and] association.”
(Am. Compl. at 3). But Bly does not state facts in his Amended Complaint that support
the claim that Defendants infringed on his right to speak freely, petition the government
for the redress of grievances, or associate with anyone he chooses. See U.S. Const.
amend. I. To the contrary, based on his stated history of picketing, running for office, and
speaking with the press, (see Am. Compl. ¶¶ 17–20, 27), Bly has vigorously exercised
those First Amendment rights. The Court, therefore, concludes that Bly has not stated a
claim against Defendants for a violation of these particular First Amendment rights.
Accordingly, the Court will grant Defendants’ Motion with respect to Bly’s free speech,
petitioning, and association claims.
bb.

Access to Judicial Records

“It is well settled that the public and press have a qualified right of access to
judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub.
Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (collecting cases). The First Amendment
“secures a right of access ‘only to particular judicial records and documents.’” Id. at 266
(quoting Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988)). But in those
instances, “access may be restricted only if closure is ‘necessitated by a compelling
parties.” Id. (quoting Bishop, 575 F.3d at 423). Bly brings claims on behalf of people he
believes would be interested in his case but who are not plaintiffs in this case. Because
Bly does not have standing to bring claims on behalf of the news media or general public,
the Court is without the power to hear them and will dismiss those claims.
11

government interest’ and the denial of access is ‘narrowly tailored to serve that interest.’”
Id. (quoting In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986)). The right of public
access “may be abrogated only in unusual circumstances.” Id. (quoting Stone, 855 F.2d at
182). Federal appellate courts have repeatedly noted, in various articulations, that public
access to judicial records allows the public to better understand, monitor, and trust the
courts. Id. (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303
(4th Cir. 2000)).
Among the “particular judicial records and documents” to which the First
Amendment secures access are those filed in connection with plea and sentencing
hearings in criminal cases. In re Wash. Post Co., 807 F.2d at 390 (reasoning that the First
Amendment right of access that applies to certain judicial proceedings should extend to
the records connected to those proceedings). Courts must also properly tailor sealing
orders in criminal cases to comport with the public’s First Amendment right to access
these records. Doe, 749 F.3d at 268 (citing In re State-Record Co., 917 F.2d 124, 129 (4th
Cir. 1990) (per curiam)). Further, “[t]he burden to overcome a First Amendment right of
access rests on the party seeking to restrict access, and that party must present specific
reasons in support of its position.” Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567,
575 (4th Cir. 2004) (citing Press-Enter. v. Superior Court, 478 U.S. 1, 15 (1986)).
Here, Bly alleges that he was convicted of certain crimes approximately thirty
years ago; that he moved for and was denied a new trial in December 2015; that, in 2016,
he attempted to access his case records at the Circuit Court and at its off-site records

12

facility but was told that they did not exist; that the same records are not available via the
Maryland Judiciary’s online docket;7 and that he never received any notice that his
records might be sealed. He alleges that Judge Gelfman or Clerk Robey authorized one or
more of Doe Defendants to remove the records or acquiesced in that action. Because the
Court must construe Bly’s Amended Complaint liberally, and at this stage, accept the
truth of its facts, Erickson, 551 U.S. at 94, the Court concludes that he plausibly alleges
that Defendants have denied him access to his entire criminal case record, at least some
portion of which he has a First Amendment right to access. See Doe, 749 F.3d at 264–69;
In re Wash. Post Co., 807 F.2d at 390; In re State–Record Co., 917 F.2d at 129. The
burden rests on Defendants to explain why Bly cannot access his records. 8 See Va. Dep’t
of State Police, 386 F.3d at 575. Accordingly, the Court will deny Defendants’ Motion
with respect to Bly’s First Amendment access to judicial records claim.9
In considering a motion under Rule 12(b)(6), as here, the Court “may properly
take judicial notice of matters of public record.” Philips v. Pitt Cty. Mem’l Hosp., 572
F.3d 176, 180 (4th Cir.2009). The Court, therefore, takes judicial notice of the fact that
Bly’s only criminal record on the Maryland Judiciary Case Search pertains to a case in
the District Court for Howard County, No. 00605361T1, from 1986. See Maryland
Judiciary Case Search, http://casesearch.courts.state.md.us/casesearch/inquirySearch.jis
(search by entering “Bly” and “Raymond” in the name fields and by clicking the
“Criminal” case type button). The Court also notes the alert below Bly’s single listed
case: “CaseSearch will only display results for cases that exist and for which the case’s
existence or a person’s identity is not protected information under the Maryland Rules on
Access to Court Records.”
8
It is possible, of course, that the Circuit Court sealed Bly’s records after
considering the minor victim’s interests, or that Bly was denied access for some other
legitimate reason. See, e.g., Md. Rule 16-907(e) (requiring the custodian of records to
deny inspection of “a record created or maintained by an agency concerning child abuse
or neglect that is required by statute to be kept confidential”).
9
For the same reasons, the Court concludes that Bly states a claim under Article
40 of the Maryland Declaration of Rights. Article 40 free speech claims are typically read
7

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cc.

Retaliation

“The First Amendment right of free speech includes not only the affirmative right
to speak, but also the right to be free from retaliation by a public official for the exercise
of that right.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
499 (4th Cir. 2005) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.
2000). A plaintiff seeking to recover for First Amendment retaliation must allege that: (1)
he engaged in protected First Amendment activity; (2) the defendants took some action
that adversely affected his First Amendment rights; and (3) there was a causal
relationship between his protected activity and the defendants’ conduct. Id. (citing Suarez
Corp. Indus., 202 F.3d at 686).
Here, Bly does not plead sufficient facts to establish each element of his claim
such that the Court can infer that Defendants are liable for retaliation. Specifically, Bly
has not alleged any facts that indicate his picketing caused Defendants to withhold his
case records. Bly alleges that he had been picketing for “several years” before he learned
he could not access his criminal case records. (Am. Compl. ¶ 18). It follows, then, that
either Bly was not attempting to access his criminal case records for years, in which case
his First Amendment rights were not adversely affected, or that an unspecified Defendant
saw him picketing and then waited for years to retaliate against him by removing his
court records, which is implausible. See Iqbal, 556 U.S. at 678; Goss, 917 F.Supp.2d at

in pari materia with their corollary First Amendment claims. See Dua, 805 A.2d at 1071–
72. Because Bly states a claim under the First Amendment for access to court records, he
also states a claim under Article 40.
14

449. Thus, the Court concludes that Bly fails to plausibly allege a First Amendment
retaliation claim. Accordingly, the Court will grant Defendants’ Motion as to this claim.
b.

Immunities
i.

Qualified Immunity

Judge Gelfman and Clerk Robey argue that they are entitled to qualified immunity
from Bly’s claims. The Court concludes that it cannot yet make this determination.
The doctrine of qualified immunity shields 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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); West v. Murphy, 771 F.3d 209, 213 (4th Cir.
2014). Qualified immunity protects government officials when they have made “mere
mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v.
Economou, 438 U.S. 478, 507 (1978). As “an immunity from suit rather than a mere
defense to liability, . . . [qualified immunity] is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis
removed). Accordingly, qualified immunity questions should be resolved on summary
judgment or earlier in the litigation when possible. See Anderson v. Creighton, 483 U.S.
635, 640 n.2 (1987).
There is a two-prong test to determine if a government official is protected by
qualified immunity: (1) whether the facts that the plaintiff has alleged or shown “make
out a violation of a constitutional right”; and (2) whether that right was “clearly

15

established” at the time of the purported violation. Pearson v. Callahan, 555 U.S. 223,
232 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion to
resolve these two prongs in whichever order they deem appropriate, based on the
circumstances of the case. Id. at 236. The answers to both prongs must be in the
affirmative for a plaintiff to prevail. Batten v. Gomez, 324 F.3d 288, 293–94 (4th Cir.
2003). Once the defendant raises qualified immunity as a defense, the plaintiff bears the
burden of proof on the first prong, that is, whether a constitutional violation occurred.
Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (citing Bryant v. Muth, 994 F.2d
1082, 1086 (4th Cir. 1993)). The defendant bears the burden on the second prong, that is,
that the right was not clearly established at the time of the violation. Id. at 378 (quoting
Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).
The second prong involves a three-step analysis. First, the court identifies “the
specific constitutional right allegedly violated.” Collinson v. Gott, 895 F.2d 994, 998 (4th
Cir. 1990). Second, the court inquires whether at the time of the alleged violation, that
right was “clearly established.” Id. Third, the court assesses “whether a reasonable person
in the official’s position would have known that his conduct would violate that right.” Id.;
see Cloaninger ex rel. Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009)
(explaining that a right is “clearly established” when “it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted” (quoting Saucier,
533 U.S. at 202)).

16

Therefore, even when a plaintiff proves that an official has violated his rights, the
official may nevertheless be entitled to qualified immunity “if a reasonable person in the
‘official’s position could have failed to appreciate that his conduct would violate’ those
rights.” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quoting Collinson,
895 F.2d at 998). This allowance for mistakes is “ample”—the qualified immunity
standard protects “all but the plainly incompetent or those who knowingly violate the
law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S.
335, 343, 341 (1986) (internal quotation marks omitted)). This allowance “exists because
‘officials should not err always on the side of caution’ because they fear being sued.” Id.
(quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)).
Here, as discussed above, the facts in the Amended Complaint make out a
violation of a constitutional right, namely Bly’s First Amendment right of access to court
records. Based on controlling Fourth Circuit precedent, that right was clearly established
at the time of the purported violation. See Doe, 749 F.3d at 264–69. The Court is unable
to make a determination regarding qualified immunity, however, because without
discovery concerning what actions Judge Gelfman and Clerk Robey took with regard to
Bly’s records, it is not clear that Bly’s First Amendment right to access judicial records
was, in fact, violated. Accordingly, the Court will deny Defendants’ Motion without
prejudice on the question of qualified immunity.

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ii.

Absolute Judicial Immunity

The Court is similarly unable to determine at this stage of the case whether Judge
Gelfman or Clerk Robey are entitled to absolute judicial immunity.
The Court of Appeals of Maryland has held “the appropriate test for determining
whether an individual is entitled to receive the benefit of absolute judicial immunity for
certain functions is whether: (1) the act performed was by a judicial officer; and (2) the
act was a judicial act.” D’Aoust v. Diamond, 36 A.3d 941, 969 (Md. 2012). With regard
to the first prong, the “critical determination” is “whether the individual is exercising
judgment similar to that of a judge.” Id. (first citing Gill v. Ripley, 724 A.2d 88, 92 (Md.
1999); and then citing McCray v. State, 456 F.2d 1, 4 (4th Cir. 1972)). Here, Judge
Gelfman clearly qualifies as a judicial officer. Whether Clerk Robey is also a judicial
officer depends on the actions, if any, he took in this case and whether he was exercising
judgment similar to a judge in performing them. The nature of Clerk Robey’s actions also
informs the second prong of the analysis.
With respect to the second prong, “[a] judge loses [her] absolute immunity only
when [she] knowingly acts in the ‘clear absence of all jurisdiction’ over the matter, or
when the act performed was not a judicial act.” Id. at 970 (first citing Parker v. State, 337
653 A.2d 436, 441 (Md. 1995); and then citing Mandel v. O’Hara, 576 A.2d 766, 768
(Md. 1990)). Whether a judge’s action is judicial depends on “the nature of the act
itself, i.e., whether it is a function normally performed by a judge, and . . . the
expectations of the parties, i.e., whether they dealt with the judge in [her] judicial

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capacity.” Id. (quoting Parker, 653 A.2d at 445). The issuance of a warrant, for example,
has been considered a judicial act deserving of judicial immunity, whereas the demotion
and discharge of court personnel is treated as an administrative act not deserving of
judicial immunity. Id. (first citing Parker, 653 A.2d at 444; and then citing Forrester v.
White, 484 U.S. 219, 229 (1988)). As for court clerks, some federal appellate courts have
granted them judicial immunity “in connection with discretionary, as opposed to
ministerial, acts, or when the act is required by court order or taken at a judge’s
direction.” Gill, 724 A.2d at 96 (collecting cases). Others have considered whether the
court clerk’s conduct was “an integral part of the judicial process.” Id. (collecting cases).
The Fourth Circuit adopted the latter approach in granting judicial immunity to a federal
district judge’s law clerk. See Jackson v. Houck, 181 F.App’x 372, 373 (4th Cir. 2006).
Here, Bly does not allege that Judge Gelfman presided over any of his cases.
Instead, his claims against both Judge Gelfman and Clerk Robey concern directions they
allegedly gave to Circuit Court employees regarding Bly’s files. Bly “assumes” that
“authorization for – or acquiescence to – removal from the internet of the record of the
aforesaid criminal proceeding against [Bly] and his subsequent efforts to overturn his
wrongful conviction could have come only from one or more of the Defendants named
herein,” that is, Judge Gelfman or Clerk Robey. (Am. Compl. at 7). If Bly’s case files
were sealed by Court order, Judge Gelfman and Clerk Robey would likely be entitled to
absolute judicial immunity. But if the case files were kept from Bly for some other
reason, as Bly alleges in his Amended Complaint, then the involved Defendants may not

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be entitled to absolute judicial immunity. Because the context and specifics of Judge
Gelfman’s and Clerk Robey’s actions, if any, are not yet clear, the Court will deny
Defendants’ Motion without prejudice with respect to absolute judicial immunity.
iii.

Eleventh Amendment Immunity
aa.

Circuit Court

Under the Eleventh Amendment, a state and its agencies are immune from suits
for damages brought in federal court by individual citizens unless the state consents.
Dixon v. Balt. City Police Dep’t, 345 F.Supp.2d 512, 513 (D.Md. 2003) (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)), aff’d, 88 F.App’x 610 (4th
Cir. 2004). The State of Maryland has waived its sovereign immunity for certain types of
cases brought in state courts, see Md. Code Ann., State Gov’t, §§ 12–101 et seq. (West
2019), but it has not waived its immunity under the Eleventh Amendment to suit in
federal court, Dixon, 345 F.Supp.2d at 513. Maryland state courts, like the Circuit Court,
are, therefore, immune from suit. See Coleman v. Court of Appeals of Md., 566 U.S. 30,
35 (2012) (affirming district court, which ruled that that Maryland Court of Appeals is an
entity or instrumentality of the State for purposes of sovereign immunity, on other
grounds); Alexander v. Dist. Court of Md. for Charles Cty., No. DKC 2007-1647, 2008
WL 6124449, at *7 (D.Md. Mar. 20, 2008). Accordingly, the Court will grant
Defendants’ Motion to the extent it seeks dismissal of Bly’s claims against the Circuit
Court.

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bb.

Individual Defendants

Bly sues the individual Defendants in both their individual and official capacities.
A suit may be maintained against state officials acting in their official capacities only to
the extent that it seeks injunctive or declaratory relief. Ex Parte Young, 209 U.S. 123
(1908) (holding that the Eleventh Amendment allows prospective relief against a state
official to prevent future constitutional or statutory violations). State officials acting in
their official capacities are outside the class of “persons” who can be sued for damages
under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). State officials
may, however, be sued for damages in their individual capacities. Hafer v. Melo, 502
U.S. 21, 23 (1991). Thus, the Court concludes that the individual Defendants are entitled
to Eleventh Amendment immunity only for Bly’s claims seeking money damages from
them in their official capacity. Accordingly, Bly may only pursue declaratory and
injunctive relief against the individual Defendants in their official capacities and money
damages in their individual capacities.
III.

CONCLUSION

For the foregoing reasons, the Court will deny Bly’s Motion for Leave to Proceed
in Forma Pauperis (ECF No. 6) and Bly’s Motion to Amend My Complaint and Request
Return Papers of Defendants (ECF No. 14). The Court will grant in part and deny in part
Defendants’ Motion to Dismiss (ECF No. 7). The Court will grant the Motion to the
extent it seeks dismissal of claims against the Circuit Court and to the extent it seeks
dismissal of all but Bly’s First Amendment access to court records claim. The Court will

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deny the Motion to the extent it seeks dismissal of Bly’s First Amendment access to
judicial records claim. A separate Order follows.
Entered this 26th day of June, 2019.
/s/
________________________
George L. Russell, III
United States District Judge

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