Panowicz v. Hancock et al

Filing 88

MEMORANDUM OPINION (c/m to Plaintiff 7/9/15 sat). Signed by Judge Deborah K. Chasanow on 7/9/2015. (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 review in this civil rights
action are several motions:

(1) a motion for summary judgment

filed by Defendant Sharon L. Hancock (ECF No. 64); (2) a motion
to amend the complaint filed by Plaintiff Mark Panowicz (ECF No.
67); (3) a cross-motion for summary judgment filed by Plaintiff
(ECF

No.

opposition

72);
to

and

(4)

a

Defendant’s

Plaintiff (ECF No. 86).

motion
summary

to

supplement

judgment

motion

Plaintiff’s
filed

by

The relevant issues have been briefed,

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

For the following reasons, Plaintiff’s motion

to amend the complaint will be denied.

Defendant’s motion for

summary judgment will be granted, Plaintiff’s unopposed motion
to supplement his opposition will be granted, and Plaintiff’s
cross-motion for summary judgment will be denied.

I.

Background
Mr. Panowicz’s Convictions and Confinement1

A.
On

December

13,

2004,

an

indictment

was

filed

in

the

Circuit Court for Charles County, Maryland, charging Plaintiff
Mark A. Panowicz with, inter alia, child abuse, child sexual
abuse, and third-degree sexual offense.
The

indictment

was

later

amended

(ECF No. 67-2, at 7).

to

charge

second-degree

assault, and Plaintiff ultimately entered an Alford plea to that
count

on

prossed.
procedure

April
(ECF
in

20,

2005.

Nos.

Charles

The

64-5,

remaining

at

3

County

and

Circuit

charges

67-3).
Court

were

The

following

nolle

standard
a

plea

allocution is that the courtroom clerk prepares a paper form
with

the

disposition

of

the

case,

1

which

is

reviewed

and

Although Plaintiff attempts to dispute some of the facts
established by Defendant, he does so by making speculative
assertions without providing any evidence to substantiate these
assertions.
On a motion for summary judgment, “[a] party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record, including [but not limited to]
depositions, documents, electronically stored information, [and]
affidavits
or
declarations[.]”
Fed.R.Civ.P.
56(c)(1)(A).
Moreover, “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). Accordingly, Plaintiff’s facts
were only credited to the extent he provided evidence to support
them. In addition, Plaintiff’s affidavit (ECF No. 72-3), which
states that “[e]ach and every statement proposed as a fact in
the Summary Judgment Proposed Facts are true and accurate based
on my personal knowledge[,]” was only credited to the extent the
facts were based on his personal knowledge.
2

initialed by the presiding judge.

(ECF No. 64-2 ¶ 6).

The

paper form is then sent to the Clerk’s Office where an employee
enters the information into the Uniform Case System (“UCS”), the
electronic

database

used

to

track

cases.

(Id.).

Once

a

criminal defendant is sentenced to confinement in a correctional
institution, the Clerk’s Office generates a record from UCS and
sends

the

commitment

institution.
probation,

(Id.

however,

¶

record
7).

the

to

If

the

the

Clerk’s

relevant

defendant

Office

does

is
not

correctional
released

on

use

to

UCS

generate a commitment record; rather, a copy of the paper form
initialed by the judge is given to the Division of Parole and
Probation.

(Id.).

Plaintiff’s paper form that was generated on April 20, 2005
during his plea allocution and initialed by the judge listed the
correct charge and disposition of his case (ECF No. 64-5, at 3),
but an employee in the criminal division of the Clerk’s Office
failed to amend the original charge of third-degree sex offense
in

UCS

to

reflect

assault conviction.

the

final

disposition

as

(ECF No. 64-2 ¶ 9).

a

second-degree

On June 13, 2005,

Plaintiff received a two-year suspended sentence and four years
of probation for the second-degree assault conviction.
80-1).
paper

(ECF No.

Following the sentencing, the courtroom clerk prepared a
docket

Plaintiff’s

entry

charges

form
that

with
was

the

correct

initialed
3

and

disposition
approved

by

of
the

presiding judge.

The clerk in the criminal division who entered

the

UCS

sentence

in

did

not

amend

the

original

correspond with the charge on the paper form.
9).

charge

to

(ECF No. 64-2 ¶

Because Plaintiff was not sentenced to any jail time, the

Clerk’s Office did not generate a commitment record from UCS to
send to a correctional institution.
from

the

sentencing

hearing

that

Instead, the paper form
contained

the

correct

disposition of his charge was sent to the probation office, and
Plaintiff

began

serving

his

four

years

of

probation

accordance with his second-degree assault conviction.

in

(Id. ¶ 7;

ECF No. 64-5, at 14).
In 2006, the State of Maryland established a public website
called Judiciary Case Search (“JCS”) to provide online access to
state court case records, including criminal cases.
64-4 ¶ 4).

(ECF No.

To create JCS, the Administrative Office of the

Courts (“AOC”) Judicial Information Systems personnel uploaded
the existing data from UCS and other case management systems
used by Maryland county courts into a central database.

(Id.).

The data upload process was automatic and did not require any
manual re-entry of data from UCS into the new database.

During

this process, the information concerning Plaintiff’s 2005 case
in

Charles

degree

sex

County,
assault,

including
was

the

incorrect

automatically

4

charge

transferred

of

third-

into

the

database

and

eventually

uploaded

onto

the

new

JCS

website.

(Id.).
In 2006, Plaintiff was charged with an unrelated crime in
St.

Mary’s

County,

Maryland.

After

a

2008

bench

trial,

Plaintiff was found guilty of second-degree assault, and he was
sentenced on May 22, 2008 to a five-year prison term with all
but eighteen months suspended and work release authorized.
No. 64-5, at 3-4).

(ECF

After his hearing on May 22, Plaintiff was

immediately taken into custody and transported to the St. Mary’s
Detention Center (“Detention Center”).
charges

were

brought

in

St.

Mary’s

(Id.).
County,

Shortly after
a

violation

probation proceeding was commenced in Charles County.
14).

of

(Id. at

On August 22, 2008, the Circuit Court for Charles County

found that Plaintiff had violated the terms of his probation and
sentenced

him

to

a

three-month

term

of

imprisonment

to

run

consecutively to the sentence imposed in St. Mary’s County.
At

the

time

of

his

conviction

in

St.

Mary’s

County,

Plaintiff was employed by Sprint Nextel Corporation (“Sprint”).
(ECF No. 64-5, at 4).

Prior to his hearing on May 22, 2008,

Plaintiff discussed the hearing with Sprint and asked if Sprint
would support work release, and Sprint indicated that it would.
(Id.).
release

Plaintiff obtained authorization from the court for work
during

his

hearing,

and,

once

he

arrived

at

the

Detention Center, attempted to coordinate the details of work
5

release

with

Sprint

and

the

Detention

Center.

(Id.).

As

requested by the Detention Center, Plaintiff provided Sprint’s
contact information and Detention Center officers attempted to
contact Sprint but were unsuccessful.
then

had

his

girlfriend,

Sandra

(Id. at 5).

Livesay,

and

Plaintiff

his

attorney

attempt to contact Sprint on multiple occasions to obtain its
business

license

information,

which

the

Detention

Center

required in order to release Plaintiff for work release.
at 5-8).

(Id.

Sprint did not return Ms. Livesay’s phone calls and

Plaintiff’s attorney was also unable to get Sprint to give him
its business license information.

Around June 10 or 11, 2008,

Plaintiff

attorney

was

informed

by

terminated his employment.

his

that

Sprint

had

Sprint sent Plaintiff’s attorney and

Plaintiff a letter dated May 30, 2008, indicating that Sprint
considered
because

Plaintiff

he

had

consecutive

days

to

been

have

absent

starting

abandoned
from

on

work

Friday,

his
for

May

more

23,

properly reporting his absence to management.
No.

72-9).

Plaintiff

The

letter

voluntarily

effective May 23, 2008.

to

indicated
have

that

terminated

(ECF No. 72-9).

job

voluntarily
than

2008,

three

without

(Id. at 8; ECF

Sprint

considered

his

employment

Although Plaintiff was

still authorized for work release following May 30, 2008, he
could not go out on work release because he had no job to which
he could go.
6

Plaintiff learned for the first time in late September or
early October 2008 from a corrections officer at the Detention
Center

that

he

was

not

eligible

to

participate

in

the

work

release program until he registered as a sex offender because of
his

2005

conviction

in

Charles

County.

(Id.

at

10-11).

Plaintiff then contacted his attorney to inquire why he was
being

required

to

register

as

a

sex

offender.

Plaintiff’s

attorney determined that Plaintiff’s 2005 conviction was listed
incorrectly on the Maryland JCS website as a third-degree sex
offense

rather

assault.
sex

than

his

(Id. at 11).

offender,

the

actual

conviction

for

second-degree

Because he was listed as a third-degree

Detention

Center

required

Plaintiff

to

register as a sex offender before he was permitted to leave the
Detention
(Id.).

Center,

which

included

leaving

for

work

release.

Plaintiff’s attorney drafted a motion asking the court

to correct the docket to reflect the correct disposition of
Plaintiff’s 2005 charges, which was granted and the docket was
corrected in November 2008.

(Id. at 11-12).

Plaintiff learned sometime in September or October of 2008
when speaking with Ms. Livesay that his colleagues at Sprint had
seen the Maryland JCS website in May 2008, which showed that
Plaintiff had a third-degree sex offense conviction from 2005.
(ECF No. 64-5, at 13, 17).
reason

Sprint

fired

him

According to Plaintiff, the real
in

May
7

2008

was

because

Sprint

management saw his erroneous sex offender conviction on the JCS
website.

(Id. at 13).

After Plaintiff was released from the Detention Center in
February 2009, he reached out to former colleagues at Sprint to
ask them to serve as references for future job applications and
to network in hope of finding a telecommunications job.
No. 72-1 ¶ 44).

(ECF

Only one of Plaintiff’s colleagues returned his

call and it was to inform him that he could not serve as a
reference due to Plaintiff’s conviction.
B.

(Id.).

Ms. Hancock and the Charles County Circuit Court
Clerk’s Office

Defendant

Sharon

Hancock

began

working

in

the

Clerk’s

Office of the Circuit Court for Charles County (“the Clerk’s
Office”) in 1998 as a courtroom clerk.
Chief Deputy Clerk.

In 2003, she became the

(ECF No. 64-2 ¶¶ 2-3).

As Chief Deputy

Clerk, she was responsible for:
reviewing and approving leave requests and
timesheets,
managing
billing
accounts,
implementing the records retention schedule,
signing checks, and reviewing closed cases
to release and refund cash bail bonds, as
well as approving purchases and inventory.
[She] was not responsible for establishing
the office’s training policies, supervising
personnel
in
charge
of
recording
dispositions of criminal cases, or setting
the policies and procedures related to the
entry of dispositions into the office’s case
management system. Richard A. Day, III, the
Clerk of Court at the time, was responsible
for setting these policies.

8

(ECF No. 64-2 ¶ 3).
unexpectedly.

On September 19, 2005, Mr. Day passed away

(Id. ¶ 4).

September 21, 2005.

Ms. Hancock became Clerk of Court on

(Id. ¶ 5).

Ms. Hancock was not the Clerk

when Mr. Panowicz entered his Alford Plea in April 2005 or when
he

was

sentenced

in

June

2005;

she

did

not

personally

participate in any aspect of Mr. Panowicz’s case, or enter his
criminal disposition into UCS.

(Id. ¶ 8).

Ms. Hancock asserts

that she did not learn about the error in Mr. Panowicz’s record
until 2009.

(Id.

¶ 13).

“unaware

any

other

of

She further asserts that she is
instance

where

a

final

criminal

disposition from the Circuit Court for Charles County ha[s] been
inaccurately recorded in UCS or incorrectly published on the
Judiciary Case Search Website.”

(Id.).

To train its employees, “[t]he Clerk’s Office provides onthe-job training to its employees regarding entry of criminal
dispositions into UCS.

The Criminal Supervisor, or a trainer

designated by her, reviews the work of new employees to ensure
its accuracy.

The trainer continues to check the new employee’s

work until satisfied that the employee understands the process
and is performing the task correctly.”

(Id. ¶ 11).

According

to Ms. Hancock, during her tenure as Clerk, the Clerk’s Office
had:
an
unwritten
policy
concerning
the
verification
of
criminal
dispositions
entered into UCS.
Under this policy, a
9

supervisor or senior-level employee would
enter the final disposition into UCS based
on the paper initialed by the judge.
For
cases where the defendant was not sentenced
to a correctional facility, another employee
in the office would check the UCS docket
entry against the paper initialed by the
judge.
For “commitment cases,” the Charles
County Detention Center would provide an
additional verification by comparing a copy
of the form signed in the courtroom with the
commitment form generated through UCS.
In
the event of a discrepancy, the Detention
Center would contact the court to determine
which form had the correct information.
(Id. ¶ 12).

Ms. Hancock states that it is her “understanding

that this same process was in place when Mr. Day was the Clerk,
but as Chief Deputy Clerk, [she] was not involved in setting
these types of policies and cannot know for sure.”

(Id.).

This

unwritten policy was modified in 2009 as part of a routine audit
of

the

Clerk’s

Office

that

Legislative Audits (“OLA”).

was

performed

(Id. ¶¶ 12, 15).

by

the

Office

of

The OLA conducted

an audit of the Clerk’s Office operations for the time period of
July 1, 2006 to June 20, 2009, and one of its recommendations
following the audit was that the Clerk’s Office should have an
employee perform, on a test basis, “an independent verification
of UCS dispositions for both commitment and non-commitment cases
and that the Office should document the process.”

(Id. ¶ 15).

Ms. Hancock states that:
[a]lthough [she] was not aware of any prior
instances where a final criminal disposition
had been inaccurately recorded in UCS —
10

besides the one involving Mr. Panowicz — the
recommendation [of OLA] aligned with [her]
desire to implement best practices within
the office.
[She] therefore concurred with
this recommendation and implemented formal
procedure for independent review of ten
percent of the UCS entries and commitment
letters within the Clerk’s Office.
(Id. ¶ 15).
C.

Procedural 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

capacity

County,

pursuant

to

42

as

Clerk

Maryland,
U.S.C.

§

of

the

alleging
1983

and

supplemental state law claims based on violations of Articles
19, 23, 24, and 40 of the Maryland Declaration of Rights and a
violation of Maryland Code, Court and Judicial Proceedings § 2—
201.

Plaintiff’s 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.
Defendant moved to dismiss the complaint, arguing, inter
alia, that she was entitled to Eleventh Amendment immunity in
her

official

capacity

and

absolute

11

judicial

immunity

in

her

individual capacity.

Defendant’s motion was granted in part and

denied

memorandum

in

part

by

September 12, 2012.

opinion

and

(ECF Nos. 9 and 10).

order

issued

on

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 under
§ 1983.

It was further determined that retrospective injunctive

relief — i.e., expungement 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 been put in
place to prevent future errors.

Plaintiff’s claim alleging a

violation of Article 40 of the Maryland Declaration of Rights
was also dismissed because it was found that Plaintiff’s right
to

freedom

defamation.

of

speech

was

not

implicated

by

the

alleged

Plaintiff’s claim alleging a violation of Md. Code

Ann., Cts. & Jud. Proc. § 2-201 was also dismissed because this
article does not provide a private cause of action.

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, but that “Plaintiff’s ultimate burden
in proving deliberate indifference is heavy[.]”
29).

It was also noted that:
12

(ECF No. 9, at

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.
(Id. at 29-30) (internal citation and quotation marks omitted).
Plaintiff’s claims alleging violations of Articles 19, 23, and
24

were

permitted

to

proceed

as

state

law

analogues

to

the

surviving § 1983 claim.
The parties cross-moved for reconsideration of the court’s
memorandum opinion and order adjudicating Defendant’s motion to
dismiss.

(ECF

Nos.

11

and

13).

Defendant’s

motion

for

reconsideration was based on the novel assertion that she was
not the Clerk of the Circuit Court for Charles County at the
time Plaintiff alleges Defendant Hancock failed to take action
as the Clerk.

(ECF No. 12).

In response, Plaintiff asserted

that Defendant Hancock’s predecessor, Richard A. Day III, who
was then deceased “was the proper Clerk of the Circuit Court for
Charles County at the time in question” and moved to amend his
complaint

to

add

Mr.

Day,

Mr.

Day’s

estate,

and

the

Commissioners of Charles County, Maryland as well as a claim for
ineffective assistance of counsel.

(ECF No. 16).

On May 17,

2013, the court denied both parties’ motions for reconsideration
and Plaintiff’s motion to amend the complaint, stating that “the

13

timing of Ms. Hancock’s tenure as clerk is not a material issue”
because Ms. Hancock was “installed as a clerk of the circuit
court at all relevant times” during which the actions Plaintiff
had complained of occurred.
Plaintiff’s

motion

commissioners

“in

to
an

(ECF Nos. 19 and 20).

amend

the

apparent

complaint

attempt

to

Moreover,

to

revive

add

the

Plaintiff’s

official capacity § 1983 claim” was also denied, as it was found
that “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.”

(ECF

No. 19, at 11).

Plaintiff’s motion to amend the complaint to

add

ineffective

a

denied

claim
as

for

it

was

found

to

assistance
be

of

“patently

counsel

was

meritless,

also

as

the

performance of Plaintiff’s counsel in any criminal proceeding is
not at issue.”
cross-motions

(Id.).
for

Following adjudication of the parties’

reconsideration,

Defendant

Hancock

the complaint, and the parties began discovery.

answered

(ECF Nos. 21

and 22).
Shortly

thereafter,

on

June

11,

2013,

Plaintiff

moved

pursuant to Rule 60(b) to correct the record to clarify that,
contrary to the court’s statement in its May 17, 2013 memorandum
opinion,

Plaintiff

was

alleging

that

recorded his original judgment in 2005.

14

the

Clerk

erroneously

(ECF No. 23).

The

undersigned granted Plaintiff’s request to correct the record,
but noted that:
[T]he court declines to reconsider its prior
rulings at this juncture, in light of the
fact that discovery is ongoing and will
likely reveal what errors were made and
when.
If Plaintiff uncovers evidence that
damages arose as a result of an erroneous
recording [of his judgment] prior to the
time Ms. Hancock was the clerk, he will be
permitted to renew his motion [to amend] at
that time, submitting such evidence in
support.
At present, the record shows only
that
the
commitment
record
in
2008
erroneously recorded his judgment.
(ECF No. 24, at 2).
on

the

issue

of

Plaintiff was permitted to seek discovery

whether

his

original

judgment

was

falsely

recorded.
After a lengthy discovery period, the court issued a letter
order

to

pursuant
October

the
to

2,

parties

Judge
2014,

on

Day’s

October
discovery

discovery

was

3,

2014,

hearing

closed

motions were due on November 17, 2014.

indicating

that

and

was

summary

held

(ECF No. 61).

On
(ECF

Plaintiff filed an opposition and counter moved for

summary judgment on December 8, 2014.
14).2

on

judgment

November 17, 2014, Defendant moved for summary judgment.
No. 64).

that

(ECF Nos. 69, 72, and 72-

The parties’ cross-motions for summary judgment are fully

2

On April 10, 2015, Plaintiff moved to supplement
opposition and reply motions, asserting that the clerk
improperly docketed his previous opposition (ECF No. 72-14),
responding to the recent opinion from Judge Day (ECF No.
15

his
had
and
85)

briefed.

(ECF Nos. 80, 84, and 86).

On November 20, 2014,

Plaintiff moved to amend his complaint.
motion is also fully briefed.
II.

(ECF No. 67).

This

(ECF Nos. 68 and 73).

Plaintiff’s Motion to Amend the Complaint
Plaintiff’s motions to amend the complaint and for summary

judgment attempt to re-litigate a number of issues that have
previously been decided.
continues

to

rehash

old

In making such requests, Plaintiff
arguments

and

does

not

provide

any

sufficient basis for reconsideration of the undersigned’s prior
rulings.
filings,

The
and

undersigned
only

those

has

reviewed

claims

and

carefully

arguments

Plaintiff’s

that

have

not

amend

the

already been addressed will be examined here.
On

November

20,

2014,

Plaintiff

moved

to

complaint pursuant to Rule 15(a) to add several causes of action
and join additional parties.3

(ECF No. 67).

clarifying his earlier ruling on
Defendant’s interrogatory response
defenses. (ECF No. 86).
3

Plaintiff proposes

a discovery dispute over
regarding her affirmative

Typically when parties move to amend the pleadings at this
stage in the proceedings, in addition to Rule 15(a) they must
first satisfy Rule 16(b)(4), which requires parties to show
“good cause” why they have not met the deadline set in the
scheduling order for amendment of pleadings and joinder of
parties.
See Aloi v. Moroso Inv. Partners, LLC, No. DKC 112591, 2013 WL 6909151, at *3-4 (D.Md. Dec. 31, 2013) (finding
that when the deadline in the scheduling order for amendment of
pleadings had “long since passed . . . the parties must do more
than satisfy the liberal standard of Rule 15(a); they must first
meet the mandates of Rule 16(b)(4)”).
Here, however, the
scheduling order does not provide a deadline for amendment of
16

to amend the complaint to add as defendants Richard Day III and
the

County

Commissioners

of

Charles

County,

Maryland.

In

addition, Plaintiff moves to amend the complaint to add six
causes of action for:

(1) violation of his Sixth Amendment

right to effective assistance of counsel; (2) violation of his
First and Fourteenth Amendment rights of access to the courts;
(3)

violation

of

his

Fifth

Amendment

right

against

double

jeopardy; (4) violation of his Fifth and Sixth Amendment rights
related to plea bargains; (5) defamation; and (6) constructive
fraud.

Plaintiff

asserts

in

this

motion

that

“this

Court

instructed the Plaintiff to wait until discovery had completed
before

filing

complaint[.]”
Pursuant

another

request

for

leave

to

file

an

of

Civil

Procedure

Amended

(Id. at 3).
to

Federal

Rule

15(a)(2),

“[t]he court should freely give leave [to amend the complaint]
when justice so requires.”

The court should deny leave to amend

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) (internal citation
and quotation marks omitted).

the pleadings and joinder of parties.
Accordingly, Plaintiff
must only satisfy Rule 15(a) in order to amend his complaint.
17

A.

Additional Claims

Plaintiff’s

request

to

add

four

constitutional

and

two

state-law causes of action will be denied for the following
reasons.

Plaintiff’s motion to amend the complaint to add a

claim for ineffective assistance of counsel has already been
denied on the ground that it is patently meritless.
19, at 11).

(ECF No.

Plaintiff provides no new allegations that in any

way suggest that Defendant’s actions interfered with his right
to counsel during his criminal proceeding.

Accordingly, this

claim is still meritless.
Plaintiff also asserts a claim for violation of his First
and Fourteenth Amendment right of access to the courts alleging
that because his plea bargain was not given proper effect, he
was denied access to the courts.

As noted by the United States

Court of Appeals for the Fourth Circuit in Plyler v. Moore, 100
F.3d 365, 373 (4th Cir. 1996), “[t]he right of access to the
courts is the ‘right to bring to court a grievance that the
inmate wished to present,’ and violations of that right occur
only when an inmate is ‘hindered [in] his efforts to pursue a
legal

claim.’”

(1996)).
access

Id.

(quoting

Lewis

v.

Casey,

518

U.S.

343

Plaintiff’s allegations do not implicate his right of

to

the

courts

because

none

of

the

facts

he

asserts

indicate that he was hindered in his efforts to seek relief from
the courts.
18

Plaintiff

contends

Amendment

right

erroneous

recording

that

against
of

Defendant

double
his

violated

jeopardy

conviction

because

as

a

his

Fifth

Defendant’s

third-degree

sex

offense in the official court records “legally and effectively
convicted Plaintiff” of a third-degree sex offense when he had
already
assault.

entered

a

plea

as

to

this

(ECF No. 73, at 13).

claim

for

second-degree

The Double Jeopardy Clause of

the Fifth Amendment provides: “[N]or shall any person be subject
for the same offense to be twice put in jeopardy of life or
limb.”

“In

general,

second

trial

for

the

the

Double

purpose

of

Jeopardy

Clause

affording

the

‘forbids

a

prosecution

another opportunity to supply evidence which it failed to muster
in the first proceeding.’”

U.S. v. Ford, 703 F.3d 708, 710 (4th

Cir.

v.

2013)

(1978)).

(quoting

Burks

United

States,

437

U.S.

1,

11

Plaintiff’s allegations do not support a claim for

double jeopardy as he was not prosecuted and convicted twice for
the same crime.

Instead, Plaintiff entered an Alford plea in

2005 as to the second-degree assault charge, and contrary to his
assertions,

the

inaccurate

recording

of

his

conviction

as

a

third-degree sex offense was not a second conviction for the
same act, but rather a clerical error that was corrected as soon
as Plaintiff petitioned the Circuit Court for Charles County to
correct the error.

19

Plaintiff
related

to

asserts

plea

a

claim

bargains

for

based

violation
on

his

of

his

rights

allegation

that

“Defendants negated one major substantive aspect of the plea
agreement by not properly recording, reporting and publishing
the

disposition

charge.]”

of

count

three

(ECF No. 73, at 7).

Government

breaches

express

[the

second-degree

assault

While it is true that “if the

or

implied

terms

of

the

plea

agreement, a violation of due process occurs[,]” United States
v.

Embree,

asserted

262

by

F.App’x

Plaintiff

499,
do

504
not

(4th

Cir.

plausibly

2008),

the

allege

that

facts
the

government breached the plea agreement.

This is not an instance

where

plea

the

government

reneged

on

its

bargain

promises;

rather, it is a case of clerical error in recording a judgment
of conviction.

Indeed, based on Plaintiff’s own allegations,

the Charles County Circuit Court judge enforced his Alford plea
agreement with the Government, reducing his original charge from
third-degree sex offense to second-degree assault.

The final

disposition of Plaintiff’s case was merely mistakenly recorded
in

the

UCS

records.

When

Plaintiff

discovered

that

his

conviction had been improperly recorded as a third-degree sex
offense, he petitioned the Circuit Court for Charles County to
correct the error, and his relief was granted.

The reduced

charge and corresponding sentence that Plaintiff bargained for
was

not

altered

by

the

Government.
20

Moreover,

Plaintiff’s

sentence for this conviction was not impacted in any way by the
clerical error.
Next, Plaintiff moves to amend his complaint to assert a
state

law

claim

for

defamation.

Plaintiff’s

defamation

claim

limitations

because

accrued

Plaintiff

became

it

aware

of

is

Defendant

barred
at

the

the

by

the

latest

erroneous

argues
statute

in

2008

recording

of

that
of
when
his

criminal conviction and Plaintiff failed to file his original
complaint until 2011, approximately three years later.

As aptly

noted by Judge Messitte in Gainsburg v. Steben & Co., Inc., 838
F.Supp.2d 339, 342 (D.Md. 2011), aff’d, 519 F.App’x 199 (4th Cir.
2013):
Maryland law imposes a one year limitations
period for defamation actions.
Md. Code
Ann., Cts & Jud. Proc. § 5-105.
Although,
ordinarily, the limitations period runs from
the time that the defamatory statement is
published,
Maryland
law
follows
the
discovery rule, which provides that a cause
of action accrues at the time the plaintiff
“knows or reasonably should know of the
wrong.”
Interphase Garment Solutions, LLC
v.
Fox
Television
Stations,
Inc.,
566
F.Supp.2d 460, 464 (D.Md. 2008) (quoting
Hecht v. Resolution Trust Corp., 333 Md.
324, 334, 635 A.2d 394 (1994)).
Plaintiff acknowledges that he became aware of the erroneous
recording of his conviction sometime in September or October
2008,

when

Detention

he

was

Center

informed

personnel

by
that

21

a

corrections

he

could

not

officer
be

at

given

the
work

release unless he registered as a sex offender due to his thirddegree sex offense conviction in 2005.

Plaintiff did not file

his complaint in this suit until August 29, 2011.

Accordingly,

Plaintiff’s defamation claim, which accrued at the latest in
September or October of 2008, is barred because he did not file
suit within the one-year limitations period.
Finally, Plaintiff moves to amend his complaint to add a
state law claim for constructive fraud based on his allegations
that “[t]he Clerk’s Office, Chief Deputy Clerk, Commissioners,
Mr.

Day

and

Ms.

Hancock

committed

a

constructive

fraud

on

Plaintiff [] by recording, and reporting on the Internet, a
false felony sex offense conviction[.]”

(ECF No. 67-6, at 38).

Plaintiff asserts that this false recording did not reflect the
plea he had entered, the conviction the judge rendered, nor “was
this

false

papers

that

disposition
the

what

courtroom

was

contained

in

clerks

prepared

and

the

courtroom

presented

to

Plaintiff on the day of the sentencing hearing in June, 2005[.]”
(Id. ¶ 149).

Plaintiff alleges that “Defendant[s] violated the

legal duty of properly recording criminal case dispositions” and
that “Plaintiff justifiably relied upon the documents provided
by

the

courtroom

clerk

from

June,

2005”

and

constructive fraud, was effectively damaged[.]”
155).

22

“due

to

the

(Id. ¶¶ 150-

“Constructive fraud is a ‘breach of a legal or equitable
duty which, irrespective of the moral guilt of the fraud feasor,
the law declares fraudulent because of its tendency to deceive
others, to violate public or private confidence, or to injure
public interests.’”

Dierker v. Eagle Nat’l Bank, 888 F.Supp.2d

645, 655 (D.Md. 2012) (quoting Canaj, Inc. v. Baker and Div.
Phase III, LLC, 391 Md. 374 (2006)).

As aptly noted by Judge

Quarles in Dierker v. Eagle National Bank, 888 F.Supp.2d 645,
656 (D.Md. 2012):
To establish constructive fraud, a plaintiff
must show a breach of a legal or equitable
duty.
Although the tort often involves the
breach of a fiduciary duty, no authority
bars a constructive fraud claim on the basis
of a legal duty of care under negligence
principles.
Thus, if a reasonable jury
could find that [the defendant] owed the
[plaintiff] a duty of care, there is a
genuine
dispute
about
whether
the
[plaintiff] [has] established a legal duty
necessary
for
their
constructive
fraud
claim.
Id. (internal citations and quotation marks omitted).
Defendant

advances

two

arguments

constructive fraud claim is futile:
allege

facts

establishing

fraud

because

he

has

a

for

why

Plaintiff’s

(1) Plaintiff has failed to

plausible

“confuse[d]

claim
the

for

constructive

Clerk’s

statutory

obligations under Md. Code Ann., Cts. & Jud. Proc., § 2-201, to
make ‘proper legible entries of all proceedings of the court’
with

a

legal

duty

that

might
23

arise

out

of

a

fiduciary

or

confidential

relationship”

(ECF

No.

68,

at

14);

and

(2)

Defendant is statutorily immune from this claim pursuant to the
Maryland
performed

Tort

Claims

her

address

employment

actions

Defendant’s

and

were

It

to

of

her

alleged to have been done with malice or gross negligence.
necessary

scope

because

not

only

the

(“MTCA”)

were

is

within

Act

second

argument

regarding state statutory immunity.
“Under the MTCA, State personnel . . . are immune from
liability ‘for a tortious act or omission that is within the
scope of the public duties of the State personnel and is made
made without malice or gross negligence.’”

Estate of Saylor v.

Regal Cinemas, Inc., 54 F.Supp.3d 409, 422 (D.Md. 2014) (citing
Md. Code Ann., Cts. & Jud. Proc. § 5-522(b)).

As previously

indicated in this suit, Charles County Circuit Court clerks are
considered “state personnel” within the meaning of the Maryland
Tort Claims Act.
(defining
employee

“state
of

a

Md. Code Ann., State Gov’t § 12-101(a)(11)
personnel”

circuit

under

court”).

the

MTCA

“For

the

as

including

purposes

of

“an
MTCA

immunity, ‘malice’ refers to so-called ‘actual malice,’ i.e.,
‘conduct characterized by evil or wrongful motive, intent to
injure, knowing and deliberate wrongdoing, ill-will or fraud[,]”
Estate of Saylor, 54 F.Supp.3d at 422 (quoting Lee v. Cline, 384
Md. 245 (2004)), whereas “Maryland courts view gross negligence
as ‘something more than simple negligence, and likely more akin
24

to

reckless

Taylor

v.

conduct.’”

Harford

(2004)).

Cnty.

Id.

(emphasis

Dep’t

of

in

Soc.

original)

Servs.,

(quoting

384

Md.

213

Gross negligence “is an intentional failure to perform

a manifest duty in reckless disregard of the consequences as
affecting the life or property or another and also implies a
thoughtless disregard of the consequences without the exertion
of

any

effort

to

avoid

them.”

Id.

(internal

citation

and

quotation marks omitted).
Plaintiff merely uses conclusory labels that Defendant has
acted with “reckless disregard” and “gross negligence” without
providing facts to support it.

(ECF No. 73, at 14).

First,

Plaintiff seems to allege that Defendant was grossly negligent
because

she

had

several

opportunities

to

correct

inaccurately recorded conviction but failed to do so.
e.g.,

ECF

No.

67-6

¶

137).

The

opportunities

his
(See,

cited

by

Plaintiff, however, involve several instances occurring between
2005 and 2008 where employees in the Clerk’s Office purportedly
dealt with paperwork related to Plaintiff’s case and failed to
notice the mistake in his UCS record or the discrepancy between
his charges as listed in the paper forms filled out by the
courtroom clerks and the UCS record.
directly

involved

conduct

by

None of these instances

Defendant

Hancock,

however.

Plaintiff does not allege that Defendant Hancock was directly
involved

in

the

original

inaccurate
25

recording

of

Plaintiff’s

final conviction or that she handled Plaintiff’s case file on
subsequent occasions.

Plaintiff’s only allegations relating to

“grossly negligent” conduct by Defendant Hancock is that she
“ratified” the original error made by one of her subordinates
because several of Plaintiff’s commitment records produced by
the

Clerk’s

Office

in

2008,

which

contained

the

inaccurate

conviction, were “electronically signed” by Defendant Hancock.
The

fact

that

Defendant’s

electronic

signature

appears

on

a

document that contains Plaintiff’s erroneous conviction does not
create

a

plausible

negligent.

inference

that

Defendant

was

grossly

Nor would gross negligence plausibly be suggested

even if Defendant had actually reviewed the documents (which the
presence

of

her

electronic

signature

does

not

necessarily

establish) and failed to notice that Defendant’s conviction was
listed incorrectly.

Plaintiff has not alleged that Defendant

knew of his original conviction or any other fact suggesting
that

Defendant

conviction

was

should

have

been

on

listed

incorrectly,

notice

such

that

that

Plaintiff’s

her

failure

to

catch this error was in reckless disregard of the consequences
it may have on Plaintiff.
Next,

Plaintiff

during

discovery

Office

intentionally

asserts

which
or

that

suggests

new

that

negligently

information

someone
maintained

in

surfaced

the

the

Clerk’s

incorrect

listing of his conviction in UCS, while simultaneously sending
26

the correct conviction to the Federal Bureau of Investigation.
Specifically, Plaintiff alleges that after he was extended a job
offer in 2012 and it was later rescinded, he requested a copy of
his

background

investigation

from

the

Office

of

Personnel

Management and was given his Federal Bureau of Investigation Rap
Sheet (“FBI Rap Sheet”), which was issued on January 5, 2012.
(ECF No. 67-1, at 4).4

Plaintiff attaches this report to his

proposed amended complaint and asserts that the FBI Rap Sheet
shows

that

the

Clerk’s

Office

supplied

the

FBI

the

correct

information regarding his conviction in 2005, while maintaining
the erroneous conviction in its own records, arguing that this
shows that an employee of the Clerk’s Office acted with malice
or gross negligence.

(ECF No. 67-3).

Plaintiff’s argument will

be rejected as the document he relies upon does not support his
contentions.
Inc.,

180

See Fare Deals, Ltd. v. World Choice Travel.com,

F.Supp.2d

678,

683

(D.Md.

4

2001)

(“When

the

bare

Plaintiff also attaches as exhibit 3 (ECF No. 67-4), a
form that was purportedly “provided by Parole and Probation as
an attachment to the December[] 2006 petition for a hearing for
a violation of probation.”
(ECF No. 67-1, at 4).
Plaintiff
appears to be arguing that because this form contains the
correct disposition of his charges, it shows that the mistake in
the UCS record was made intentionally or with reckless
disregard. The fact that probation had the correct disposition
of Plaintiff’s charges while UCS had the incorrect disposition,
does not provide a plausible inference that the discrepancy was
a result of gross negligence or malice.
At most it suggests
that a member of the Clerk’s Office acted negligently, but says
nothing about whether Defendant Hancock acted with malice or
gross negligence.
27

allegations of the complaint conflict with any exhibits or other
documents,

whether

attached

or

adopted

exhibits or documents prevail.”).

by

reference,

the

The report Plaintiff relies

upon shows his “Criminal History Record” as of January 5, 2012,
well

after

the

Charles

Plaintiff’s

record

Plaintiff’s

own

in

County

November

assertion

Circuit

2008.

that

the

Court

corrected

Accordingly,
FBI

is

fed

based

on

information

directly from the Maryland Criminal Justice Information System,
which is fed information from UCS (ECF No. 73, at 7), the FBI’s
system would have also reflected the incorrect disposition of
his

2005

case

Moreover,

the

contention

until
FBI

that

Rap

the

charges in 2005.

2008

FBI

when

had

UCS

docket

does

Sheet

the

not

support

the

correct

was

amended.

Plaintiff’s

disposition

of

his

Indeed, the document states that it contains

Plaintiff’s criminal history record as of January 5, 2012 and
that “the information in this rap sheet . . . is the most
current

criminal

history

record

information

available[,]”

meaning that it would contain any alterations or updates to his
criminal history up until 2012, including the 2008 correction.
(ECF No. 67-3).
Finally, Plaintiff has alleged that Defendant was grossly
negligent for failing to adopt a formal policy in the Clerk’s
Office of reviewing final case dispositions that were entered
into UCS.

As will be seen, because the Clerk’s Office had an
28

informal policy of reviewing judgments and Plaintiff has not
alleged

that

employees

there

making

was
errors

a

common
when

problem

entering

of

Clerk’s

case

Office

dispositions,

Defendant’s failure to adopt a formal policy for reviewing case
dispositions is not indicative of gross negligence.
Plaintiff’s
member

of

inaccurately

allegations
the

Clerk’s

recording

indicate
Office

that
may

Plaintiff’s

Defendant

have

been

original

or

Although
another

negligent

by

judgment

of

conviction and by failing to notice this clerical error until it
was brought to the court’s attention, Plaintiff’s allegations do
not support that Defendant herself acted with gross negligence
or malice.

Plaintiff’s request to amend his complaint to add a

claim for constructive fraud will be denied, as Defendant is
entitled to state statutory immunity for her conduct.5

5

Plaintiff also contends that “[o]n October 2, 2014,
Magistrate [Judge] Day held that Ms. Hancock waived all of her
affirmative defenses” including state statutory immunity.
(ECF
No. 73, at 14).
This misrepresents Judge Day’s holding,
however.
Judge Day clarified in his March 17, 2015 order that
“to the extent that Defendant knew certain facts when she
provided her answers to interrogatories and failed to articulate
those facts in support of an affirmative defense she is
precluded from asserting those facts at trial.”
(See ECF No.
85) (order clarifying holdings from October 2, 2014 hearing).
After reviewing the disputed interrogatory answers, Plaintiff’s
contentions that Defendant has waived her affirmative defenses
have no merit because Defendant does not articulate new facts in
her motion for summary judgment to support her affirmative
defenses; she relies on the same facts she provided in the
interrogatories. (ECF No. 86-1, at 5-7).
29

B.

Additional Parties

Plaintiff also moves to amend the complaint to add as
additional
individually

Defendants:
and

in

Richard
official

his

Day

III

capacity

and
as

his

estate,

Clerk

of

the

Circuit Court for Charles County; and the County Commissioners
of Charles County, Maryland (“County Commissioners”).6
Plaintiff’s
County

request

Commissioners

as

to

amend

his

defendants

complaint

will

be

to

denied

add
as

the

it

is

duplicative of the request he made on January 18, 2013 (ECF No.
16), and it is futile, as Plaintiff fails to cure the pleading
deficiencies identified in his first motion to amend; namely,
“it

is

not

responsible

at
for

all
a

clear

policy

how
of

the

the

commissioners

clerk’s

office,

could
and

complaint does not state a plausible claim against them.”

be
the
(ECF

No. 19, at 11).
Plaintiff also moves to amend his complaint to add as a
defendant the former Clerk of the Circuit Court for Charles
County,

Richard Day III (and his estate), individually and in

his official capacity.

This request is problematic for many

6

Plaintiff also moved to add Sharon Hancock “under a
different title” in her official capacity as Chief Deputy Clerk
for the Circuit Court for Charles County, Maryland.
This
request will be denied as Ms. Hancock is already a Defendant,
the claims against her in her official capacity as Clerk of
Court have been dismissed, and any claims against her in her
official capacity as Chief Deputy Clerk fail for the same
reasons.
30

reasons, in part because of its timing and the fact that Richard
Day III (“Clerk Day”) is deceased, but Plaintiff’s request to
add Clerk Day as a defendant will ultimately be denied because,
even were he or the estate made a party, summary judgment would
be

granted

in

their

favor.

As

will

be

seen,

the

evidence

provided by Plaintiff fails to establish his § 1983 claim based
on

supervisory

liability

and

his

related

state

law

claims

against the Clerk of Court, whether against Clerk Day or his
successor,

Defendant

Hancock.

Accordingly,

judgment

will

judgment

on

be

entered against Plaintiff.
III. Cross-Motions for Summary Judgment
Defendant

Hancock

moves

for

summary

all

remaining counts in Plaintiff’s complaint, namely, Plaintiff’s
42

U.S.C.

§

1983

claim

against

Defendant

in

her

individual

capacity and Plaintiff’s related state law claims arising from
the same facts for violations of Articles 19, 23, and 24 of the
Maryland Declaration of Rights.

Plaintiff opposes Defendant’s

motion for summary judgment and has filed a cross-motion for
summary judgment.
A.

Standard of Review

A court may enter summary judgment only if there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
31

Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

Summary judgment is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

“A mere scintilla of

prevent

summary

judgment.”

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
construe

the

facts

that

Liberty Lobby, 477 U.S. at

At the same time, the court must
are

presented

in

favorable to the party opposing the motion.

the

light

most

Scott v. Harris,

550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it
32

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
B.

Analysis

1.

42 U.S.C. § 1983 Claim

Section
individual

1983
“who,

authorizes
under

a

suit

color

of

for
any

damages

against

statute,

any

ordinance,

regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person . . . to deprivation of any rights, privileges, or
immunities secured by the Constitution.”

42 U.S.C. § 1983.

state a claim under § 1983, a plaintiff must show that:

To

(1) the

defendant deprived him of a right secured by the Constitution or
laws of the United States; and (2) that any such deprivation was
committed by a person acting under color of state law.

See West

v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff’s § 1983 claim is based on a purported violation
of his substantive and procedural due process rights which he
argues was caused by the Clerk’s Office’s inaccurate recording
of his 2005 conviction as a third-degree sex offense and the
erroneous publication of this conviction on the Maryland JCS
website.

Plaintiff

argues

that
33

this

defamatory

publication

harmed him in numerous ways, including causing the loss of his
private employment with Sprint, making him ineligible for work
release

during

Center,

and

his

confinement

causing

the

Detention

register as a sex offender.
Clerk

of

liability

Court,
for

is

her

at

the

St.

Center

Mary’s

to

Detention

require

him

to

Plaintiff argues that Defendant, as

liable

under

subordinate’s

a

theory

inaccurate

of

supervisory

recording

of

and

subsequent publication of his conviction and the harms that it
caused him because:

she failed to adopt a formal policy in the

Clerk’s Office for ensuring the proper recording of criminal
case

dispositions;

she

failed

properly

to

supervise

Clerk’s

Office employees; and she personally ratified the error made by
her subordinates by signing Plaintiff’s commitment records in
2008, which contained the erroneous conviction.

(ECF No. 72-1,

at 2-3).
State
plaintiff

law
of

defamation,

a

by

liberty

property

or

itself,

does

interest

not

deprive

“sufficient

a
to

invoke the procedural protection of the Due Process Clause.”
Paul v. Davis, 424 U.S. 693, 693-97 (1976).

To state a due

process claim, a plaintiff must establish that, in addition to
the

defamatory

statement,

a

right

or

status

was

altered

or

extinguished.

Such claims are commonly referred to as “stigma-

plus” claims.

Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005).

34

As

Judge Messitte explained in Grimes v. Miller, 448 F.Supp.2d 664,
673 (D.Md. 2006):
A
“stigma-plus”
claim
requires
[the
plaintiff] to show: “(1) the utterance of a
statement ‘sufficiently derogatory to injure
his or her reputation, that is capable of
being proved false, and that he or she
claims is false,’ and (2) a material stateimposed burden or state-imposed alteration
of plaintiff’s status or rights.”
Sadallah
v. City of Utica, 383 F.3d 34, 38 (2d Cir.
2004) (citations omitted).
Defendant
claim

on

seeks

several

summary

grounds:

judgment
(1)

on

Plaintiff’s

Plaintiff

cannot

§

1983

prove

a

constitutional injury based on a stigma-plus claim because his
reputational injury was not accompanied by a state action that
altered or extinguished Plaintiff’s rights or legal status; (2)
Plaintiff
theory

of

cannot

prove

supervisory

that

Defendant

liability

or

is

based

liable
on

based

her

on

a

purported

ratification of the filing error; and (3) Defendant is entitled
to qualified immunity.

Because Plaintiff’s § 1983 claim hinges

on the viability of his theory of supervisory liability, that
issue will be addressed first.
It

is

well

established

that

the

doctrine

superior does not apply in § 1983 claims.

of

respondeat

See Love–Lane v.

Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior
liability

under

§

1983).

In

discussing

the

liability

of

supervisors for constitutional violations by their subordinates,

35

the

Fourth

Circuit

explained

in

Moore

v.

Greenwood

School

District No. 52, 195 F.App’x 140, 144 (4th Cir. 2006), that:
Supervisory officials may be held liable in
certain circumstances for the constitutional
injuries inflicted by their subordinates.
See Slakan v. Porter, 737 F.2d 368, 372 (4th
Cir. 1984).
We have articulated a threepart test to establish supervisory liability
under § 1983: “(1) that the supervisor had
actual or constructive knowledge that his
subordinate was engaged in conduct that
posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the
plaintiff;
(2)
that
the
supervisor’s
response to that knowledge was so inadequate
as to show ‘deliberate indifference to or
tacit authorization of the alleged offensive
practices,’; and (3) that there was an
‘affirmative
causal
link’
between
the
supervisor’s inaction and the particular
constitutional
injury
suffered
by
the
plaintiff.”
Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir. 1994) (citations omitted).
In Randall v. Prince George’s County, 302
F.3d 188, 206 (4th Cir. 2002), this Court
concluded that, “[u]nder the first prong of
Shaw,
the
conduct
engaged
in
by
the
supervisor’s
subordinates
must
be
‘pervasive,’ meaning that the ‘conduct is
widespread, or at least has been used on
several different occasions.’” Furthermore,
in establishing “deliberate indifference”
under Shaw’s second prong, a plaintiff
“[o]rdinarily . . . cannot satisfy his
burden of proof by pointing to a single
incident or isolated incidents . . . for a
supervisor cannot be expected . . . to guard
against the deliberate criminal acts of his
properly trained employees when he has no
basis
upon
which
to
anticipate
the
misconduct.”
Id. (quoting Slakan, 737 F.2d
at 373).

36

Defendant Hancock challenges whether Plaintiff has met his
burden in establishing the first and third elements of this
claim.

As

to

the

first

element,

Defendant

argues

that

Plaintiff’s supervisory liability claim fails because he cannot
prove

that

Defendant

Hancock

had

any

actual

or

constructive

knowledge that her subordinates were engaged in conduct that
posed a pervasive and unreasonable risk of constitutional injury
to citizens like Plaintiff.

Defendant also challenges whether

Plaintiff has established an affirmative causal link between her
alleged inactions and the constitutional injury because she was
not

the

Clerk

of

Court

when

Plaintiff’s

conviction

was

inaccurately recorded in 2005 and therefore was not responsible
for the actions of Clerk’s Office employees or the policies that
were in place at that time.
Plaintiff

cannot

show

a

In addition, Defendant argues that
causal

link

between

Defendant’s

purported inactions and the constitutional injury because the
injury was the result of multiple intervening causes.
Based on the evidence presented, Plaintiff has failed to
meet

his

heavy

burden

of

establishing

Defendant

Hancock’s

deliberate indifference by showing “continued inaction in the
face of documented widespread abuses.”
Moreover,

Plaintiff

has

failed

to

Slakan, 737 F.2d at 373.
establish

an

affirmative

causal link between his injury and the purported inactions of

37

Defendant, as discovery revealed that Defendant Hancock was not
the Clerk of Court when the inaccurate recording of Plaintiff’s
conviction in UCS originally occurred; rather, Clerk Day was
Clerk of Court and responsible for supervising the employees in
the Clerk’s Office and setting Clerk’s Office policies.
No. 64-2 ¶¶ 3-5, 8-9).

(ECF

In her role as Chief Deputy Clerk,

which Defendant held through mid-September 2005, she was not
responsible

for

supervising

the

activities

purportedly caused Plaintiff’s injuries.
has

failed

to

establish

the

third

which

have

Accordingly, Plaintiff
part

of

the

test

for

supervisory liability as to Defendant Hancock.
Second, Plaintiff has presented no evidence that Defendant
Hancock or Clerk Day were aware or should have been aware that
Clerk’s Office employees were engaged in conduct that posed a
pervasive

and

citizens

like

unreasonable
Plaintiff,

indifference to this risk.
Plaintiff’s

risk

judgment

of

of

but

constitutional

injury

to

demonstrated

deliberate

Indeed, the inaccurate recording of
conviction

appears

to

be

the

only

recording mistake of this nature made by the Clerk’s Office.
(ECF No. 64-2 ¶ 16).

In her affidavit, Ms. Hancock states that

she did not learn of the error in Mr. Panowicz’s case until
2009, and she is “unaware of any other instance where a final
criminal disposition from the Circuit Court for Charles County
has

been

inaccurately

recorded
38

in

the

UCS

or

incorrectly

published on the Judiciary Case Search Website.

[She] did not

have reason to suspect that the training and data-entry policies
in place were insufficient to ensure the accurate recording of
criminal dispositions in UCS.”

(Id. ¶ 13).

Plaintiff points to the legislative audit report that was
produced in 2009 as evidence that Defendant Hancock should have
been

aware

that

the

Clerk’s

Office’s

informal

policy

in

reviewing entry of case dispositions was inadequate to catch
errors like the one that occurred in his case.
at 34).

(ECF No. 72-14,

Plaintiff argues that this report should have given

Defendant Hancock notice that there was a possibility of Clerk’s
Office employees making errors in entering case dispositions.
Plaintiff also points to several judicial opinions and briefs,
which discuss isolated incidents in which errors occurred in
other cases in the Circuit Court for Charles County.

See State

v. Prue, 414 Md. 531 (2010) (Charles County Circuit Court judge
failed to announce the verdict on several counts for which the
criminal defendant had been indicted); State v. Santiago, 412
Md. 28 (2009) (noting that because counsel did not request a
jury poll and the clerk failed to hearken the jury during a
trial

in

the

Circuit

Court

for

Charles

County,

the

guilty

verdict was a nullity); Savoy v. Maryland, 336 Md. 355, 360 n.6
(1994) (noting that the docket entry describing a violation of
probation hearing that occurred in the Circuit Court for Charles
39

County did not accurately describe all of the reasons why the
appellant’s probation was revoked); Brief of Appellant, Moore v.
State, 2005 WL 5366152, at *12 n.7 (Md. Ct. Spec. App. Dec. 30,
2005) (arguing that the docket entry for a status hearing held
in the Circuit Court for Charles County mistakenly stated that
defense counsel had waived defendant’s presence at the hearing
and

that

the

trial

transcript

showed

otherwise).

Plaintiff

contends that the errors documented in these cases should have
put Defendant Hancock on notice of a widespread issue, and are
indicative of her indifference to the harm being done by the
Clerk’s Office.

None of the errors referenced in the cases

cited by Plaintiff, however, are remotely similar to the error
made in Plaintiff’s case — a failure by an employee in the
Clerk’s Office accurately to transcribe the final disposition of
a case from the paper form created by the courtroom clerk to the
UCS.

Nor

do

the

errors

show

a

pattern

violations by Clerk’s Office employees.

of

constitutional

Accordingly, even if

there was a widespread issue of clerical errors being made in
the Clerk’s Office, which it does not appear that there was,
there is no evidence that these errors would have put Defendant
Hancock or Clerk Day on notice of a pattern of constitutional
violations

similar

to

the

one

asserted

by

Plaintiff.

See

Randall, 302 F.3d at 207 (rejecting the cross-appellants’ § 1983
claim based on supervisory liability because cross-appellants
40

had “presented no evidence that [the supervisor] knew about any
propensity for unlawful action by his subordinates, and they
provided

no

evidence

recurrences”).

that

he

had

an

opportunity

to

prevent

Moreover, due to their timing, the legislative

audit (2009) and the issuance of the opinions in Prue (2009) and
Santiago (2010) would certainly not have put Clerk Day on notice
during his tenure as Clerk or Defendant Hancock on notice in
2005, when the original inaccurate recording of the judgment
occurred, or in 2006 when it was published on the JCS website,
that there was a widespread pattern of erroneous recordings of
criminal case dispositions such that they had an opportunity to
prevent Plaintiff’s injury but were deliberately indifferent and
failed

to

take

any

action.

In

fact,

when

the

Office

of

Legislative Audits recommended in 2009 that Defendant Hancock
have

an

employee

perform

independent

verification

of

UCS

dispositions for both commitment and non-commitment cases on a
test basis, Defendant Hancock adopted this recommendation.

She

implemented a formal procedure for independent review of ten
percent of UCS entries and commitment letters within the Clerk’s
Office,

which

shows

that

when

Defendant

Hancock

was

put

on

notice in 2009 that the Clerk’s Office informal policy may have
been

inadequate,

she

was

instead changed the policy.

not

deliberately

indifferent,

(ECF No. 64-2 ¶ 15).

but

As noted by

the Fourth Circuit in Randall, 302 F.3d 188, the premise of
41

supervisory

liability

is

that

“the

failure

to

supervise

contributed to the constitutional deprivation in question.”
at 207.

Id.

“Because supervisors ‘cannot be expected to promulgate

rules and procedures covering every conceivable occurrence,’ and
because they may be powerless to prevent deliberate unlawful
acts

of

proof

subordinates,

of

multiple

the

courts

instances

of

to

before

required

permitting

Id. (quoting Slakan, 737 F.2d

Here, Plaintiff has failed to meet his burden to show

sufficient
order

appropriately

misconduct

supervisory liability to attach.”
at 373).

have

instances
establish

of
the

misconduct
supervisory

in

the

Clerk’s

liability

of

Office
the

in

Clerk,

whether it be Clerk Day or Defendant Hancock.
Finally,

Plaintiff

argues

that

Defendant

has

personally

participated in the constitutional violation and is therefore
liable because she ratified the original data error that was
made by one of her subordinates in 2005 by signing multiple
commitment

orders

conviction.

in

2008,

which

contained

the

inaccurate

Plaintiff argues that Defendant’s ratification of

the inaccurate conviction in the commitment orders “is strong
evidence to support the mental aspect of reckless disregard and
deliberate indifference on the part of Ms. Hancock[.]”
72-14, at 34).

(ECF No.

As Defendant points out, however, she did not

personally review and sign the commitment records in question as
the

Clerk

is

not

typically

involved
42

in

the

preparation

of

commitment
sentenced

orders;
to

rather,

confinement

when

a

a

member

criminal
of

the

defendant
Clerk’s

is

Office

generates a commitment record through UCS and the record is
stamped with the Clerk’s signature by the employee preparing it,
or when a temporary commitment order is issued, it is stamped
with

the

Clerk’s

preparing it.

signature

and

initialed

(ECF No. 80-2 ¶¶ 2-3).

Hancock

specifically

actions

personally

testified

with

that:

respect

to

by

the

employee

In her deposition, Ms.
she

did

not

Plaintiff’s

take

criminal

any
case

disposition or sentencing or have any personal knowledge about
them;

she

Detention

did

not

Center

have

in

any

regard

communication

to

Plaintiff;

with
and

personally issue any of his commitment orders.
at 33).

St.

she

Mary’s

did

not

(ECF No. 64-3,

Moreover, because the error in Plaintiff’s UCS record

was not brought to the Clerk’s Office’s attention until the fall
of 2008, the Clerk’s Office employees processing the paperwork
in Plaintiff’s case from 2005 until the error was discovered,
would have had no reason to be on notice that the information in
the UCS electronic record conflicted with the information in
Plaintiff’s

paper

record.

Accordingly,

Plaintiff’s

argument

that Defendant should be held liable because she ratified the
original

recording

error

is

unpersuasive.

Defendant

never

personally reviewed Plaintiff’s commitment orders, and even if
she had, there is no indication that she could have ratified the
43

error because there was no reason for her to be on notice that
the conviction listed in the commitment order was inaccurate
because she had no knowledge of Plaintiff’s Alford Plea or his
actual conviction in September 2005.

(ECF No. 64-3, at 33); see

Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183, (4th Cir. 1994)
(acknowledging that a municipality could be held liable under §
1983

if

a

final

decision

maker

ratified

the

acts

of

their

employees, but only if the final decision maker was fully aware
and condoned his subordinates’ unconstitutional acts); see also
Livers v. Schenck, 700 F.3d 340, 357 (8th Cir. 2012) (finding
that, in contrast to municipalities, an individual could not be
held

liable

subordinate

for
after

ratifying
it

a

constitutional

occurred

because

it

violation

would

by

his

“violate

the

principle that a supervisor who does not directly participate in
an employee’s constitutional violation can only be liable for
the violation when it was caused by the supervisor’s failure to
train or supervise his or her employees properly” (citing Wagner
v. Jones, 664 F.3d 259, 275 (8th Cir. 2011)).
2.

State Law Claims

Plaintiff’s state law claims asserting violations of the
Maryland

Declaration

of

Rights

Articles

19,

23,

and

24

are

essentially premised on the same theory of liability as his §
1983 claim — that Defendant Hancock and Clerk Day are liable for
his injuries because they failed adequately to supervise their
44

subordinates who made the error; failed to implement a formal
policy

for

Defendant

reviewing

Hancock

case

failed

disposition

to

notice

entries

the

error

commitment records when she signed them.
38).

in
in

UCS;

and

Plaintiff’s

(ECF No. 72-14, at

Plaintiff also asserts that these claims are based on

“intentional conduct that includes intentionally publishing the
false-void conviction[.]”

(Id.).

Defendant moves for summary judgment on Plaintiff’s state
law claims arguing that she has state statutory immunity because
Plaintiff has failed to provide evidence that she acted with
malice or gross negligence in performing her duties as Clerk.
According to Defendant, Plaintiff cannot prove that she acted
with

gross

negligence

because

“she

was

not

responsible

for

supervising the entry of criminal dispositions when the relevant
errors occurred and was not aware of any similar errors that
could have alerted her that the office’s procedures were not
sufficient

to

dispositions.”

ensure

the

accurate

(ECF No. 64-1, at 45).

entry

of

the

final

Defendant also contends

that she is entitled to summary judgment on Plaintiff’s state
law

claims

because

the

state

constitutional

provisions

upon

which they are based must be interpreted in pari materia with
the

Due

Process

Clause

of

the

Fourteenth

Amendment,

and

Plaintiff has failed to prove his federal claims based on a

45

violation of his Fourteenth Amendment due process rights.

It is

only necessary to address Defendant’s first argument.
As previously noted, Clerks of the Circuit Court of Charles
County are considered state personnel under the MTCA and are
immune from personal liability for allegedly tortious acts or
omissions that are within the scope of their public duties and
are made without malice or gross negligence.

Estate of Saylor,

54 F.Supp.3d at 422; Md. Code Ann., Cts. & Jud. Proc. § 5522(b)).

Statutory immunity under the MTCA extends to tort

claims based on alleged violations of the Maryland Declaration
of Rights.

Lee v. Cline, 384 Md. 245, 256 (2004) (“The current

language of the Maryland Tort Claims Act plainly appears to
cover intentional torts and constitutional torts as long as they
were committed within the scope of state employment and without
malice or gross negligence.”).
Taking the facts in the light most favorable to Plaintiff,
he has failed to establish that Defendant Hancock or Clerk Day
acted with malice or gross negligence.

Plaintiff appears to be

advancing the same arguments and evidence in support of his
state law claims as he does in support of his § 1983 claim based
on supervisory liability.
shows

Defendant’s

and

The evidence which Plaintiff argues
Clerk

Day’s

reckless

disregard

and

deliberate indifference was discussed in relation to his § 1983
claim, and for the same reasons it does not establish their
46

deliberate indifference, it also does not show that they were
grossly negligent.
grossly

negligent

First, Defendant Hancock could not have been
for

failing

to

supervise

the

employee

who

originally inaccurately recorded Plaintiff’s conviction in 2005
because she was not Clerk at the time of the original recording
and therefore, was not responsible for supervising the employee
who made the error.

In addition, Plaintiff has provided no

evidence that Clerk Day had any personal involvement in the
entry or review of Plaintiff’s case disposition in UCS.

Second,

Defendant and Clerk Day were not grossly negligent for failing
to

implement

a

formal

policy

for

reviewing

case

disposition

entries in UCS because Plaintiff has provided no evidence that
errors similar to the one in Plaintiff’s case had previously
been made by employees of the Clerk’s Office, and therefore they
had no reason to believe that the informal policy that was in
place was inadequate.
421-23

(finding

that

Cf. Estate of Saylor, 54 F.Supp.3d at
plaintiffs

had

adequately

alleged

gross

negligence on the part of deputy defendants because the deputies
had

ignored

warnings

given

by

the

decedent’s

caregiver

that

confronting him would lead to a hostile reaction and ignored the
“risk of asphyxiation in handcuffing an obese individual behind
his

back”

community).

which

was

well-known

in

the

law

enforcement

Indeed, there was no indication until the fall of

2008, well after Clerk Day’s tenure had ended, when the error in
47

Plaintiff’s case was brought to the Clerk’s Office’s attention
that the informal policy of review may be inadequate to catch
errors.

Moreover, the fact that Defendant Hancock’s name was

stamped on several of Plaintiff’s commitment records in 2008,
which contained his erroneous conviction, does not suggest gross
negligence on the part of Defendant Hancock because she did not
actually review and sign these records, and even if she had, she
would not have been on notice that the conviction was listed
incorrectly

because

conviction

was

she

never

second-degree

knew

that

assault.

Plaintiff’s
See

also

actual

Farmer

v.

Maryland, No. GJH-14-02584, 2015 WL 3560011, at *7-8 (D.Md. June
4,

2015)

(finding

entitled

to

state

supervise/train
violations

that

his

because

defendant

statutory

was

immunity

subordinate
plaintiff

who

who
had

a

supervisor

was

failure

to

for

committed
not

constitutional

provided

any

facts

supporting that defendant supervisor acted with gross negligence
or

malice).

Plaintiff’s

evidence

in

support

of

his

claims

simply does not show gross negligence or reckless conduct on the
part

of

Defendant

Hancock

or

Clerk

Day,

or

an

“intentional

failure to perform a manifest duty in reckless disregard of the
consequences

as

affecting

the

life

or

Estate of Saylor, 54 F.Supp.3d at 422.

property

of

another.”

Finally, Plaintiff’s

contention that his conviction was intentionally misrecorded,
presumably in an attempt to show malice, finds no support in the
48

record and is based on pure speculation.

Accordingly, Defendant

Hancock and Clerk Day are entitled to state statutory immunity
on Plaintiff’s state law claims.
IV.

Conclusion
For

complaint

the

foregoing

filed

Defendant’s
Plaintiff’s

by

motion
motion

reasons,

Plaintiff
for
for

will

summary
summary

the

motion

be

denied.

judgment
judgment

to
In

will

will

amend

be

judgment will be entered in favor of Defendant.

addition,

be

granted,

denied,

and

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

49

the