Panowicz v. Hancock et al
Filing
120
MEMORANDUM OPINION (c/m to Plaintiff Mark A. Panowicz 4/28/23 sat). Signed by Judge Deborah K. Chasanow on 4/28/2023. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARK A. PANOWICZ
:
v.
:
Civil Action No. DKC 11-2417
:
SHARON L. HANCOCK
:
MEMORANDUM OPINION
Presently pending and ready for resolution are the four
motions for relief under Federal Rule of Civil Procedure 60 filed
by Plaintiff Mark A. Panowicz.
(ECF Nos. 108, 109, 110, 111).
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 will be denied.
I.
Background
A detailed background of this case may be found in the
memorandum opinion issued on July 9, 2015.
(ECF No. 88, at 2-16).
In summary, Plaintiff, proceeding pro se, filed this lawsuit on
August 29, 2011, against Defendant Sharon L. Hancock, Clerk of the
Circuit Court for Charles County, Maryland, in her individual and
official capacities.
(ECF No. 1).
In his complaint, Plaintiff
alleged that Defendant Hancock violated his rights when the Clerk’s
office erroneously recorded his April 2005 Alford plea for a
misdemeanor second-degree assault as a felony third-degree sex
offense on the court’s electronic record.
(Id. ¶¶ 15, 19).
Plaintiff
2008
discovered
this
error
in
August
and
shortly
thereafter petitioned the Circuit Court for Charles County to
correct it.
(Id. ¶¶ 41-42).
The Circuit Court for Charles County
ordered that the error be corrected in November 2008.
46).
(Id. ¶¶ 20,
The complaint set forth claims under 42 U.S.C. § 1983 for
violations of Plaintiff’s federal constitutional rights as well as
claims under Maryland law.
Plaintiff sought compensatory and
punitive damages, “affirmative injunctive direction to send out
notice to other people who may have been impacted by the improper
policies, practices, procedures, customs[,] or improper training
methods that result in improper records[,]” costs, and an “order
[of] expungement of the record in the Circuit Court for Charles
County for Mr. Panowicz’s 2005 proceedings.”
(Id. at 21-22).
Defendant Hancock filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) on November 3, 2011.
5).
(ECF No.
The court granted the motion as to the § 1983 claim against
Defendant Hancock in her official capacity and as to some of the
state law claims but otherwise denied the motion.
10).
The parties engaged in discovery.
(ECF Nos. 9,
On November 17, 2014,
Defendant Hancock filed a motion for summary judgment as to all
remaining claims.
(ECF No. 64).
for summary judgment.
Plaintiff filed a cross-motion
(ECF No. 72).
Plaintiff also filed a motion
to amend his complaint to join additional parties and add claims
2
for violations of his Sixth Amendment right to effective assistance
of counsel, First and Fourteenth Amendment rights of access to the
courts, Fifth Amendment right against double jeopardy, and Fifth
and Sixth Amendment rights related to plea bargains, as well as a
defamation claim and a constructive fraud claim.
(ECF No. 67).
On July 9, 2015, the court granted Defendant Hancock’s motion
for
summary
judgment
and
denied
motion to amend the complaint.
Plaintiff’s
cross-motion
(ECF Nos. 88, 89).
and
As for the
motion to amend, the court determined that the amendment would be
futile because Defendant’s alleged actions—which amounted to a
clerical error that did not impact Plaintiff’s underlying charge
or sentence—did not implicate any of those constitutional rights,
the defamation claim was barred by the statute of limitations, and
Defendant was entitled to state statutory immunity as to the fraud
claim.
The court also determined that joining the additional
parties would be futile.
As for the cross-motions for summary
judgment, the court determined, among other things, that Plaintiff
had “failed to meet his heavy burden of establishing Defendant
Hancock’s deliberate indifference by showing ‘continued inaction
in the face of documented widespread abuses,’” as is required to
prove a claim against a supervisor for constitutional violations
by their subordinates, especially because discovery revealed that
Defendant Hancock was not the Clerk of Court when the inaccurate
recording of Plaintiff’s conviction occurred.
3
(ECF No. 88, at 37-
38 (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)).
The court also determined that summary judgment was warranted in
Defendant Hancock’s favor as to the state law claims because she
was entitled to state law immunity.
(ECF No. 88, at 49).
Plaintiff appealed the court’s decision on November 5, 2015.
(ECF No. 96).
Circuit
The United States Court of Appeals for the Fourth
affirmed
in
an
unpublished
opinion.
(ECF
No.
102).
Plaintiff petitioned the United States Supreme Court for writ of
certiorari, and his petition was denied on May 1, 2017.
106, 107).
(ECF Nos.
Nothing was filed in this case for more than five
years.
On November 1, 2022, Plaintiff filed four motions for relief
under
Federal
Rule
of
Civil
Procedure
60—specifically,
60(b)(4), 60(b)(5), 60(b)(6), and 60(d)(3), respectively.
Nos. 108-111).
Rule
(ECF
Defendant Hancock advised the court on February 2,
2023, that pursuant to Federal Rule of Civil Procedure 25(d), the
current Clerk of the Circuit Court for Charles County, Lisa Yates,
would in her official capacity be automatically substituted for
Defendant
Hancock
in
her
official
capacity.
(ECF
No.
114).
Defendants Hancock and Yates then filed a response to Plaintiff’s
motions, and Plaintiff filed a reply.
II. Analysis
Federal Rule of Civil Procedure 60(b) provides:
4
[T]he court may relieve a party . . . from a
final judgment, order, or proceeding for the
following reasons: . . . (4) the judgment is
void; (5) the judgment has been satisfied,
released, or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that
justifies relief.
Fed.R.Civ.P. 60(b).
Motions under Rule 60(b)(4)-(6) must be made
“within a reasonable time” after the entry of judgment, and the
movant must make a showing of timeliness.
Fed.R.Civ.P. 60(c)(1);
Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984).
Rule
60(d)(3) provides that a court may also “set aside a judgment for
fraud on the court.” Fed.R.Civ.P. 60(d)(3). No time limit applies
to that rule.
See Fox ex rel. Fox v. Elk Run Coal Co., 739 F.3d
131, 135-36 (4th Cir. 2014).
Rule 60(b) does not authorize a motion that “is nothing more
than a request that the district court change its mind.”
States v. Williams, 674 F.2d 310, 313 (4th Cir. 1982).
United
Indeed,
given the “the sanctity of final judgments, expressed in the
doctrine of res judicata,” the rule provides a remedy that “is
extraordinary
and
is
only
exceptional circumstances.”
to
be
invoked
upon
a
showing
of
Compton v. Alton S.S. Co., 608 F.2d
96, 102 (4th Cir. 1979) (internal quotation marks omitted). Motions
under Rule 60(b)(4) are limited to cases where “the court rendering
the decision lacked personal or subject matter jurisdiction or
acted in a manner inconsistent with due process of law.”
5
Wendt v.
Leonard, 431 F.3d 410, 412 (4th Cir. 2005).
Relief from a judgment
under the Rule 60(b)(5) “no longer equitable” clause may be granted
only “if a significant change either in factual conditions or in
law
renders
interest.”
continued
enforcement
detrimental
to
the
public
United States v. Welsh, 879 F.3d 530, 537 (4th Cir.
2018) (internal quotation marks omitted) (quoting Horne v. Flores,
557 U.S. 433, 447 (2009)).
provision
and
circumstances.”
should
only
Rule 60(b)(6) is the “catchall”
be
invoked
in
“extraordinary
Aikens v. Ingram, 652 F.3d 496, 500-01 (4th Cir.
2011) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863 n.11, 864 (1988)).
Rule 60(d)(3) is “construed very
narrowly,” and relief under that provision is limited to situations
where there was an “intentional plot to deceive the judiciary,”
“such as bribery of a judge or juror, or improper influence exerted
on the court by an attorney”—a “fraud between parties” does not
suffice.
Fox, 739 F.3d at 136 (internal quotation marks omitted).
Plaintiff has not made a showing of timeliness—the order he
challenges was entered almost eight years ago. 1
Even if he could
make such a showing, he has not satisfied the heavy burden required
Plaintiff states that he tried to submit a Rule 60 motion
in December 2017 through his relatives while he was still “under
a contested civil commitment,” but his relatives improperly
submitted the documents.
(ECF No. 109-1, at 8).
He does not,
however, explain why he was unable to refile the motion properly
once he was no longer under the civil commitment, which he states
ended in April 2018.
1
6
to obtain relief under Rule 60(b) or (d). Plaintiff’s four motions
consist mostly of arguments Plaintiff previously made in response
to Defendant Hancock’s motions to dismiss and for summary judgment,
stretched and reframed to be arguments as to why relief under Rule
60 should be granted.
For example, he argues that the court denied
him due process by failing to consider fully his double jeopardy
claim and the evidence of his societal stigma harm related to his
due process claim.
(ECF No. 108-1, at 8-9).
The court squarely
addressed both of those claims in its memorandum opinion.
No. 88, at 19, 34-44).
(ECF
What this argument essentially amounts to
is a request that the court change its mind.
provide a vehicle for such requests.
Rule 60 does not
See Williams, 674 F.2d at
313.
Aside from arguments previously made, Plaintiff argues that
he
has
discovered
new
evidence
that
Defendant
Hancock
was
deliberately indifferent to “accuracy issues identified in the
transfer of court paper records to the court electronic record.” 2
(ECF No. 109-1, at 7).
He has provided “excerpts from a 2003
He also argues that he has recently discovered evidence of
“clear intentional misuse of Plaintiff’s 2005 records containing
Plaintiff’s unauthorized ‘conviction’ further evidencing harm to
Plaintiff,” in the form of a sheriff’s report from October 2006 in
which Plaintiff’s sexual offense charge was mentioned. (ECF Nos.
110-29; 109-1, at 7).
However, the court’s grant of summary
judgment for Defendant Hancock was not based on the lack of
evidence of harm to Plaintiff, and the sheriff’s awareness of the
charge that was later discovered to be erroneously recorded is
irrelevant to Plaintiff’s claims against Defendant Hancock.
2
7
Univ[ersity] of Maryland audit of the Maryland Criminal Justice
Information
System,
showing
a
statewide
12%
error
rate
in
disposition accuracy between a circuit court paper record and a
circuit court electronic record.”
(ECF Nos. 110-7; 111-1, at 9).
He argues that this new evidence justifies relief under all four
Rule 60 provisions.
For a movant to prevail under Rule 60(b)(6)
based on newly-submitted evidence, “the newly-submitted evidence
must establish a fact ‘so central to the litigation that it shows
the initial judgment to have been manifestly unjust.’”
Moore v.
Bethesda Fire Dep’t, Inc., 937 F.2d 603 (Table), No. 90–2906, 1991
WL 126579, at *5 (4th Cir. July 15, 1991) (quoting Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.
1990)).
Plaintiff’s arguments fail for several reasons.
First, the
excerpts Plaintiff has provided are only seven non-consecutive
pages out of the middle of a report, and those pages do not identify
the report or the year in which it was published.
7).
(ECF No. 110-
Assuming the report is what Plaintiff says it is, it purports
to contain data only from the years 1998 through 2000—several years
before the events in this case took place—and on a statewide basis.
Additionally, Plaintiff has not shown that Defendant Hancock knew
about this report.
He provides meeting minutes for a conference
in November 2005 that designate Defendant Hancock as an attendee,
and the minutes reflect discussion of a “Data Reliability Study”
8
that was conducted that summer in Anne Arundel, Calvert, and
Carroll Counties with “positive” results.
(ECF No. 110-11).
Plaintiff argues that this study must have been related to the
2003
University
of
Maryland
audit,
and
therefore,
Hancock must have known about the 2003 audit.
9-10).
Defendant
(ECF No. 111-1, at
This is much too tenuous a connection to support relief
under Rule 60.
And even if the connection was there, Defendant
Hancock’s awareness of reports of statewide accuracy issues from
years prior would not impact any of the bases upon which the court
granted summary judgment for Defendant Hancock.
Plaintiff has not shown that the court lacked jurisdiction
over his case, nor has he shown that the enforcement of the
judgment prospectively would no longer be equitable. Indeed, there
is no aspect of the judgment currently being enforced, other than
the upholding of the denial of the relief Plaintiff sought in
filing his lawsuit. 3
None of the other arguments Plaintiff makes
rise to the level of “extraordinary circumstances.”
Plaintiff
argues that Defendant Hancock’s failure to produce the 2003 audit
during discovery constitutes “fraud on the court,” (ECF No. 1111, at 37-40), but even if Defendant Hancock was aware of the audit
Plaintiff asks the court to expunge the record of his 2005
conviction in the Circuit Court for Charles County as relief from
prospective enforcement of the judgment, (ECF No. 109-1, at 2223), but as the court has previously explained, expungement of a
state criminal record must be sought through the state court
system. (ECF No. 9, at 19).
3
9
and obligated to produce it during discovery and failed to do so,
that failure plainly would not rise to the level of “fraud on the
court” under the standard previously described.
Thus, Plaintiff
has not presented any grounds upon which he would be entitled to
relief under Rule 60.
III. Conclusion
For the foregoing reasons, Plaintiff’s motions for relief
under Federal Rule of Civil Procedure 60 will be denied.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
10
A
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