Panowicz v. Hancock et al

Filing 19

MEMORANDUM OPINION (c/m to Plaintiff 5/17/13 sat). Signed by Chief Judge Deborah K. Chasanow on 5/17/13. (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 in this civil
rights

action

are

cross-motions

for

reconsideration

filed

by

Plaintiff Mark A. Panowicz (ECF No. 11) and Defendant Sharon L.
Hancock (ECF No. 13) and Plaintiff’s motion for leave to amend
his

complaint

(ECF

No.

16).

The

relevant

issues

have

been

briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary.

For the reasons that follow,

the motions will be denied.
I.

Background
Plaintiff,

proceeding

pro

se,

commenced

this

action

on

August 29, 2011, by filing a complaint against Ms. Hancock,
individually
Circuit

and

Court

constitutional

in
for

her

official

Charles

violations

erroneous

publication

on

County,

pursuant

supplemental state law claims.
the

capacity

to

42

as

Clerk

Maryland,
U.S.C.

of

the

alleging

§

1983

and

The complaint relates to the
Maryland

judicial

website

of

Petitioner’s 2005 second-degree assault conviction as a thirddegree

sex

offense.

Plaintiff

discovered

this

error

while

incarcerated for a separate offense in or around August 2008,
and

the

website

was

corrected

in

accurately his crime of conviction.

November

2008

to

reflect

He alleges that, since the

time he was released from incarceration in February 2009, he has
been unable to find work because many of his former colleagues
believe he is a convicted sex offender due to the erroneous
report

on

the

website.

The

complaint

requests

an

award

of

compensatory and punitive damages, as well as injunctive relief
in the form of expungement of his 2005 conviction and an order
directing notice to others who may have been affected by any
policy

that

led

to

inaccurate

publication

of

criminal

convictions in the Circuit Court for Charles County.
In response, Ms. Hancock moved to dismiss, arguing, inter
alia, that she was entitled to Eleventh Amendment immunity in
her

official

capacity

individual capacity.

and

absolute

judicial

immunity

in

her

That motion was granted in part and denied

in part by a memorandum opinion and order issued September 12,
2012.

As to the official capacity claim for money damages, the

court found that circuit court clerks are state officials under
Maryland law, and, therefore, not “persons” subject to suit for
money

damages

retrospective

under

§

injunctive

1983.

It

relief
2

–

further
i.e.,

determined

expungement

that
of

a

criminal conviction – was not available to Plaintiff, and that
prospective relief – i.e., notice to others potentially affected
– was not supported by the complaint, which acknowledged that a
policy

had

Plaintiff’s

been

put

in

claim

alleging

place

to

violation

prevent
of

future

Article

40

errors.
of

the

Maryland Declaration of Rights was also dismissed, as the court
found that his right to freedom of speech was not implicated by
the alleged defamation.
With regard to Plaintiff’s individual capacity claim under
§ 1983, the court rejected Defendant’s argument that she was
entitled

to

absolute

judicial

immunity,

and

found

that

the

complaint stated a claim for supervisory liability:
Plaintiff has set forth a plausible claim
that he suffered a cognizable injury as a
result of Defendant’s failure to implement
formal safeguards against the erroneous
publication of judgments of conviction on a
judicial website.
The question is a close
one, and Plaintiff’s ultimate burden in
proving deliberate indifference is heavy,
but the audit report nudges his claim across
the line from conceivable to plausible.[1]
The appendix to the audit report indicates
1

Plaintiff attached to his complaint a December 1, 2009,
report of an audit of the Office of the Clerk of the Circuit
Court for Charles County conducted by the Maryland Office of
Legislative Audits for the period from July 1, 2006, to June 30,
2009. As relevant here, the audit found that the clerk’s office
did not have formal procedures in place to ensure proper entry
of criminal dispositions and recommended that it adopt an
independent documented review process.
Attached to the report
was a letter, signed by Defendant, in which she concurred with
the findings of the audit and advised that she had established a
formal review procedure, as recommended.
3

that
Defendant
implemented
informal
procedures to ensure that judgments were
accurately
recorded,
but
the
State’s
recommendation
that
formal
policies
be
adopted
at
least
suggests
that
these
informal procedures were in some respect
insufficient.
To the extent that Defendant
may have known of a propensity for such
errors and failed to respond, whether by
implementing a formal policy or providing
training to her subordinates, Plaintiff has
set forth a sufficient § 1983 claim against
Defendant in her individual capacity, albeit
by a very thin margin.
(ECF No. 9, at 29-30 (internal marks and citations omitted)).
Plaintiff’s claims alleging violations of Articles 19, 23, and
24 – which are in pari materia with the Due Process Clause of
the Fourteenth Amendment – were also permitted to go forward as
state law analogues to the surviving § 1983 claim.2
On

September

25,

2012,

Plaintiff

filed

reconsideration of each of the dismissed counts.
In

opposing

that

motion,

Defendant

did

not

a

motion

for

(ECF No. 11).
address

any

of

Plaintiff’s arguments; rather, she essentially advanced her own
argument for reconsideration based upon the novel assertion that
“Defendant Hancock was not the Clerk of the Circuit Court for
Charles County at the time Plaintiff alleges Defendant Hancock
failed

to

take

action

as

the

2

Clerk.”

(ECF

No.

12,

at

3

Additionally, the court explained that it did not read the
complaint’s citation to Md. Code Ann., Cts. & Jud. Proc. § 2201, as asserting a cause of action, but rather that Plaintiff
cited this provision in support of his position that Defendant
owed him a duty. Plaintiff has since confirmed this view. (ECF
No. 11-1 ¶ 30).
4

(emphasis omitted)).
filed

a

On the same date, Defendant separately

substantively-identical

motion

for

reconsideration.

(ECF No. 13).
In

opposing

Defendant’s

motion

for

reconsideration,

Plaintiff asserts that Ms. Hancock’s predecessor, Richard A. Day
III – who is now deceased – “was the proper Clerk of the Circuit
Court for Charles County at the time in question,” and asserts
that he would “submit an amended Complaint to [correct] this . .
.

mistake.”

(ECF

No.

15

¶

11).

Nevertheless,

he

argued,

insofar as Defendant was the Chief Deputy Clerk of the Circuit
Court for Charles County during the relevant time period, she
may still be liable as a supervisor under § 1983 and, in any
event, she was the clerk of court at the time of the erroneous
publication
Plaintiff

on

the

filed

a

judicial
motion

website.3

for

leave

On
to

January

amend

his

18,

2013,

complaint,

attaching a proposed amended complaint naming Ms. Hancock (in
her individual and official capacities as clerk and chief deputy
clerk), Mr. Day (in his official capacity as clerk), Mr. Day’s
estate (in his individual capacity), and the Commissioners of
Charles County, Maryland.

(ECF No. 16).

3

Concomitantly with his opposition papers, Plaintiff filed
a “motion for judicial notice of commonly known facts,”
asserting that, due to a weather-related court closure on the
date the opposition was due, his opposition was timely-filed on
the next business day pursuant to Fed.R.Civ.P. 6(a)(3).
(ECF
No. 14). Because Plaintiff is correct and the timeliness of his
opposition is at issue, this motion will be granted.
5

II.

Motions for Reconsideration
Because the parties seek reconsideration of a non-final,

interlocutory

order,

Fed.R.Civ.P. 54(b).

their

motion

is

properly

analyzed

under

See Fed.R.Civ.P. 54(b) (“[A]ny order or

other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all
the parties does not end the action . . . and may be revised at
any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.”).

The

precise standard governing a motion for reconsideration of an
interlocutory
articulated

in

order

is

Rules

unclear.

59(e)

and

60(b)

Although
are

not

the

standards

binding

in

an

analysis of Rule 54(b) motions, see Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently
look

to

these

standards

for

guidance

in

considering

such

motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559,
565-66 (M.D.N.C. 2005).

The Akeva court recognized that

[p]ublic policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations:
(1) there has
been an intervening change in controlling
law; (2) there is additional evidence that
was not previously available; or (3) the

6

prior decision was based on clear error or
would work manifest injustice.
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
reconsideration

under

Rule

54(b)

may

not

be

A motion for
used

merely

reiterate arguments previously rejected by the court.

to

Beyond

Sys., Inc., 2010 WL 3059344, at *2.
Plaintiff has not specifically addressed any of the grounds
for reconsideration, nor does any appear to apply.

Rather, he

merely rehashes his discredited arguments that clerks of the
circuit courts are local officials not entitled to 11th Amendment
immunity in their official capacities; that he is entitled to
expungement of his criminal record; and that his claim under
Article 40 of the Maryland Declaration of Rights is viable.

See

Sanders

RWT

v.

Prince

George’s

Public

School

System,

No.

08cv501, 2011 WL 4443441, at *1 (D.Md. Sept. 21, 2011) (a motion
for reconsideration is “not the proper place to relitigate a
case

after

the

court

has

ruled

against

a

party,

as

mere

disagreement with the court’s rulings will not support granting
such a request”).

These arguments could only be cognizable if

the prior ruling was clearly erroneous, and Plaintiff has failed
to demonstrate that any such error occurred.

7

Much of his argument in support of reviving his official
capacity § 1983 claim – e.g., that “[t]he Clerk of the Circuit
Court [for] Charles County is required by statute to have a
bond[] to cover the faithful performance of the duties of their
office” (ECF No. 11-1 ¶ 1); that the Maryland General Assembly,
in 1986, amended the state constitution to provide that “the
funding of the offices of the Clerks would be via the State
budget rather than by means of their respective revenues” in
order to “make the Clerks’ offices revenue a part of the State
treasury” (id. at ¶ 5) – actually supports, rather than calls
into question, the propriety of the prior ruling.
the

authority

he

cites

in

support

of

his

Similarly,

contention

that

expungement of his state court conviction is available does not
help his cause.
741-42

(D.Md.

possessed

See United States v. Gary, 206 F.Supp.2d 741,
2002)

ancillary

(finding

that

jurisdiction

while

to

the

expunge

district
records

court
of

an

unlawful arrest or conviction in federal court, it did not have
the

power

to

considerations,”

order
such

expungement
as

“enhancement

based
of

on

“equitable

the

defendant’s

employment situation”); Martin-El v. Maryland, Civ. No. JFM-113044, 2011 WL 5513241, at *3 (D.Md. Nov. 9, 2011) (finding that
petitioner was required to pursue his request for expunction of
state court conviction in state court).
true

that

Article

40

of

the

Maryland
8

Finally, while it is
Declaration

of

Rights

provides that Maryland citizens are “responsible for the abuse”
of their right to freedom of speech, Plaintiff has not cited any
controlling

authority

recognizing

a

cause

of

action

in

defamation arising from this provision, nor does there appear to
be any.

See Brunson v. Howard Co. Bd. of Educ., Civ. No. WDQ-

10-3045, 2013 WL 388985, at *5 (D.Md. Jan. 30, 2013) (declining
to

exercise

supplemental

jurisdiction

over

novel

claim

under

Article 40, noting that “there is virtually no state [case law]
concerning a defamation exception to Article 40”).

Moreover, it

is unclear how a constitutional claim in this regard would be
distinct from a common law tort claim for defamation, which
would, in all likelihood, be time-barred.
Cts.

&

Jud.

limitations

Proc.
from

Accordingly,

§

the

5-105
date

Plaintiff’s

See Md. Code Ann.,

(providing
of

accrual

motion

for

one-year
for

statute

libel

of

actions).

reconsideration

will

be

denied.
Defendant

argues

for

the

first

time

in

her

motion

for

reconsideration that the complaint must be dismissed because she
was

not

the

clerk

of

court

on

June

13,

2005,

Plaintiff’s second-degree assault conviction.

the

date

of

Defendant asserts

that she “did not become Clerk until September 21, 2005, some
three

months

after

the

[erroneous]

entries

allegedly

were

[made]”; thus, “Plaintiff has not set forth a sufficient § 1983
claim against Defendant in her individual capacity.”
9

(ECF No.

13, at 4).

The complaint, however, does not allege error in the

original recording of the judgment of conviction; indeed, the
record reflects that the judgment was accurately recorded as a
second-degree assault conviction as of December 26, 2006 (ECF
No.

16-3),

probation

and

under

Plaintiff
that

was

judgment

found
in

to

2008.

have

violated

Moreover,

his

Plaintiff

acknowledges that the judicial website did not become available
until on or about March 7, 2006 (ECF No. 15 ¶ 8), and the
damages about which he complains did not occur until May 2008,
at

the

earliest

(ECF

No.

1

¶

38).

Thus,

Ms.

Hancock

was

installed as clerk of the circuit court at all relevant times,
and the Defendant’s motion for reconsideration will be denied.
III. Motion for Leave to Amend
Pursuant

to

Federal

Rule

of

Civil

Procedure

15(a)(2),

courts are to grant leave to amend a pleading “freely . . . when
justice so requires.”

Leave should be denied, however, where

“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.”

HCMF Corp. v. Allen, 238 F.3d 273,

276 (4th Cir. 2001) (quoting Edwards v. City of Goldsboro, 178
F.3d 231, 242 (4th Cir. 1999)).

“An amendment is futile when the

proposed amendment is clearly insufficient or frivolous on its
face, or if the amended claim would still fail to survive a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).”
10

El-Amin

v. Blom, Civ. No. CCB-11-3424, 2012 WL 2604213, at *11 (D.Md.
July 5, 2012) (internal marks and citations omitted).
Here,

Plaintiff

has

attached

to

his

motion

an

amended

complaint naming additional parties and adding a new claim.

As

noted, the timing of Ms. Hancock’s tenure as clerk is not a
material

issue;

thus,

it

is

unnecessary

to

name

her

in

her

capacity as deputy clerk or to name her predecessor, Mr. Day, or
his estate.

The amended complaint also names the Commissioners

of Charles County in an apparent attempt to revive Plaintiff’s
official capacity § 1983 claim – as the commissioners may be
deemed local, rather than state, officials – but it is not at
all

clear

how

the

commissioners

could

be

responsible

for

a

policy of the clerk’s office, and the complaint does not state a
plausible claim against them.
reasserts

claims

assumes

that

Because

it

previously

his

will

motion
not,

he

To the extent that Plaintiff

dismissed,

the

amended

for

reconsideration

may

not

raise

complaint

would

those

prevail.

claims

again.

Finally, he seeks to add a claim of ineffective assistance of
counsel,

apparently

arguing

that

the

actions

of

the

clerk

somehow undermined his counsel’s representation at one of the
criminal
meritless,

proceedings
as

the

at

issue,

performance

of

but

claim

Plaintiff’s

criminal proceeding is not at issue.

11

this

is

counsel

patently
in

any

Accordingly, amendment of

the complaint would be futile and Plaintiff’s motion for leave
to amend will be denied.
IV.

Conclusion
For the foregoing reasons, the motions for reconsideration

and motion for leave to amend will be denied.

A separate order

will follow.

_________/s/________________
DEBORAH K. CHASANOW
United States District Judge

12