Panowicz v. Hancock et al
Filing
9
MEMORANDUM OPINION (c/m to Plaintiff 9/12/12 sat). Signed by Chief Judge Deborah K. Chasanow on 9/12/12. (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, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY AS :
CLERK OF THE CIRCUIT COURT
FOR CHARLES COUNTY
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights action is a motion to dismiss filed by Defendant Sharon
L.
Hancock,
Maryland.
Clerk
of
the
(ECF No. 5).
Circuit
Court
for
Charles
County,
The issues are fully briefed and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed necessary.
For the reasons that follow, the motion will
be granted in part and denied in part.
I.
Background
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 to charge second-degree assault, and, on April 20,
2005, Plaintiff entered an Alford plea to that count.
On June
13, 2005, he received a two-year suspended sentence and four
years of probation.
In
November
2006,
unrelated
criminal
charges
were
filed
against Plaintiff in the District Court of Maryland for St.
Mary’s
County.
At
the
conclusion
of
a
February
2008
bench
trial, Plaintiff was found guilty of second-degree assault.
that
time,
he
was
employed
by
Sprint
Nextel
At
Corporation
(“Sprint”) and “work[ed] with his employer to receive support
for
Work
Release
District Court.”
prior
to
.
.
.
(ECF No. 1 ¶ 35).
sentencing
in
St.
Mary’s
On May 22, 2008, Plaintiff
was sentenced to a five-year term of imprisonment, with all but
eighteen months suspended, and three years of probation.
The
court recommended that he be permitted to participate in a work
release
program,
immediately.
and
Plaintiff
began
serving
his
sentence
He was unable to “coordinate details” of work
release with his employer, however, and, on May 30, 2008, Sprint
terminated his employment, citing “voluntary job abandonment” as
the basis.
(Id. at ¶ 38).
Sprint advised Plaintiff’s attorney
of the termination on or about June 11, 2008.
(Id.).
A violation of probation proceeding was commenced in the
Charles County case shortly after charges were brought in St.
Mary’s
County.
On
August
22,
2008,
the
Circuit
Court
for
Charles County found that Plaintiff had violated the terms of
his
probation
and
sentenced
him
2
to
a
three-month
term
of
imprisonment to run consecutively to the sentence in the St.
Mary’s County case.
At
around
the
same
time,
Plaintiff
learned
from
correctional officers at the St. Mary’s County Detention Center
that
“the
Maryland
Judicial
Web
page
ha[d]
his
June[]
2005
Circuit Court for Charles County Alford Plea for the misdemeanor
2nd Degree Assault falsely . . . listed as a felony 3rd Degree
Sex Offense.”
(Id. at ¶ 41).
Plaintiff immediately contacted
his attorney, who learned from detention center personnel that
Plaintiff was required to register as a sex offender “before
being allowed to leave the Detention Center on Work Release.”
(Id. at ¶ 42).
offender,
he
Because Plaintiff refused to register as a sex
was
“prohibited
from
Work
Release.”
(Id.).
Plaintiff’s counsel contacted the circuit court clerk’s office
and requested that the website be corrected, but was told it
could not be changed without a court order.
Counsel petitioned
the Circuit Court for Charles County to correct the error, and
relief was granted in November 2008.
According to Plaintiff, the damage was already done.
He
was released from incarceration in February 2009, but was unable
to return to work in his chosen field, allegedly because many of
his former colleagues believed he was a convicted sex offender
based on the false report on the judicial website.
Moreover,
the resulting damage to his reputation and inability to obtain a
3
favorable job reference hampered his efforts to find employment
in other fields.1
On December 1, 2009, the Maryland Office of Legislative
Audits released a report of an audit it conducted of the Office
of the Clerk of the Circuit Court for Charles County for the
period from July 1, 2006, to June 30, 2009.2
The audit found
that “[t]he Office did not have formal procedures to ensure that
the disposition of court cases was properly entered into the
automated court system.”
(ECF No. 8-5, at 5).
It recommended
that “an independent documented review be performed of the court
case dispositions entered into the [Uniform Court System (UCS)]
and the related commitment letters, at least on a test basis.”
(Id.).
Attached
as
an
appendix
to
the
audit
report
was
a
letter, signed by Sharon L. Hancock, Clerk of the Circuit Court
for Charles County, and Chief Judge Robert M. Bell of the Court
of Appeals of Maryland, stating that they concurred with the
audit recommendation.
The letter recites that “[t]he Clerk’s
1
On February 9, 2010, Plaintiff filed a voluntary chapter 7
bankruptcy petition in the United States Bankruptcy Court for
the District of Maryland.
A final decree was issued in the
bankruptcy case on February 4, 2012.
2
A copy of the audit report was attached to Plaintiff’s
papers opposing Defendant’s motion to dismiss.
(ECF No. 8-5).
The report is “integral to and explicitly relied on in the
complaint [ECF No. 1 ¶ 52] and the [Defendant does not]
challenge its authenticity.” Phillips v. LCI Intern., Inc., 190
F.3d 609, 618 (4th Cir. 1999). Thus, it may be considered in the
context of a Rule 12(b)(6) motion.
4
Office has always confirmed, on an informal basis, that criminal
case dispositions were properly entered,” but that in response
to the audit the “Office procedures have been strengthened to
formally
review
“independent
manual
criminal
employee
court
forms,
case
[who]
the
dispositions”
compares
related
the
by
assigning
information
commitment
letters,
an
on
the
and
the
information entered in the UCS to ensure that the information
was entered properly.”
Soon
thereafter,
(Id. at Appendix).
Plaintiff
commenced
an
action
against
Sprint and Ms. Hancock in the United States District Court for
the Eastern District of Virginia.
Both defendants moved to
dismiss and those motions were granted, albeit without prejudice
to Plaintiff’s right to file suit against Ms. Hancock in this
court.
After his appeal to the United States Court of Appeals for
the
Fourth
Nextel
Circuit
Corp.,
437
was
unsuccessful,
Fed.Appx.
239
(4th
see
Panowicz
Cir.
2011),
v.
Sprint
Plaintiff
commenced the instant action, proceeding pro se, against Ms.
Hancock in her individual and official capacities.
(ECF No. 1).
The complaint sets forth a claim under 42 U.S.C. § 1983 for
violations of Plaintiff’s federal constitutional rights, further
alleging violations of the Maryland Declaration of Rights and
Md. Code Ann., Cts. & Jud. Proc. § 2-201.
seeks
an
award
of
compensatory
5
and
As relief, Plaintiff
punitive
damages,
an
“affirmative injunctive direction to send out notice to other
people who may have been impacted by the improper policies . . .
of the Clerk’s Office,” and “expungement of the record in the
Circuit
Court
proceedings.”
On
for
Charles
County
for
[Plaintiff’s]
2005
(Id. at 22).
November
3,
2011,
Defendant
moved
to
dismiss
the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 5).
Plaintiff filed opposition papers on November 21,
2011 (ECF No. 8), and Defendant did not file a reply.
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
6
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
Complaints filed by pro se litigants are “to
be liberally construed . . . and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”
Erickson v. Pardus,
551 U.S. 89, 94 (2007) (internal quotation marks and citation
omitted).
The court need not, however, accept unsupported legal
allegations.
(4th
Cir.
couched
as
Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873
1979).
Nor
factual
must
it
allegations,
agree
Iqbal,
with
556
legal
conclusions
U.S.
at
678,
or
conclusory factual allegations devoid of any reference to actual
events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009).
“[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged, but it has not ‘show[n] .
. . that the pleader is entitled to relief.’”
at
679
(quoting
Fed.R.Civ.P.
8(a)(2)).
Thus,
Iqbal, 556 U.S.
“[d]etermining
whether a complaint states a plausible claim for relief will . .
7
. be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Id.
III. Analysis
A.
42 U.S.C. § 1983
Plaintiff
sues
Defendant,
both
individually
and
in
her
official capacity as Clerk of the Circuit Court for Charles
County, for violations of his Fourteenth Amendment rights to
substantive
and
procedural
due
process,
“personal
security
rights in reputation,” and the “right to liberty to pursue his
chosen profession without improper governmental interference.”
(ECF No. 1 ¶ 84).
The crux of his argument is that Defendant’s
erroneous publication of a sex offense conviction on a state
judicial website resulted in him being unable to find work in
his chosen profession.
The complaint recites that Defendant
failed “to correct an on-going custom, process, procedure, and
policy”
of
improperly
recording
judgments
of
conviction,
for
which she was responsible as the “final policy-maker” of the
clerk’s office, and “failed to properly train employees,” which
“resulted in [Plaintiff] recklessly . . . being falsely recorded
and reported on the Maryland Judicial web page as a convicted
felon.”
(Id. at ¶¶ 60, 64).
defamation,
asserting
Thus, the complaint sounds in
theories
of
liability.
8
municipal
and
supervisory
Section 1983 provides liability for “[e]very person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects or causes to be subjected,
any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws[.]”
42 U.S.C. § 1983.
To state a claim under § 1983,
a plaintiff must allege that (1) the defendant “deprived him of
a right secured by the Constitution of the United States” and
(2) that “any such deprivation was achieved under color of state
law.”
Paul v. Davis, 424 U.S. 693, 696-97 (1976) (footnote
omitted).
State
law
defamation,
by
itself,
does
not
deprive
a
plaintiff of “liberty” or “property” “sufficient to invoke the
procedural protection of the Due Process Clause.”
U.S. at 701.
Paul, 424
To state a due process claim, a plaintiff must
allege, in addition to the defamatory statement, that 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 (2nd Cir. 2005).
As
Judge
Messitte
explained
in
Grimes
v.
Miller,
F.Supp.2d 664, 673-74 (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
9
448
claims is false,’ and (2) a material stateimposed burden or state-imposed alteration
of
the
plaintiff’s
status
or
rights.”
Sadallah v. City of Utica, 383 F.3d 34, 38
(2d Cir. 2004) (citations omitted).
The
Fourth Circuit has held that “[t]he type of
communication that gives rise to a protected
liberty interest implies ‘the existence of
serious character defects such as dishonesty
or
immorality.’”
Ridpath
v.
Bd.
of
Governors Marshall Univ., 447 F.3d 292, 308
(4th Cir. 2006) (citing Robertson v. Rogers,
679 F.2d 1090, 1092 (4th Cir. 1982)).
The
Fourth
Circuit
has
also,
however,
“distinguished statements that imply such
serious character defects from statements
that simply allege ‘incompetence,’” the
former being actionable under a “stigmaplus” theory, the latter not.
Id.
As
examples of the former, the Fourth Circuit
has referenced charges of bribery, see
Boston v. Webb, 783 F.2d 1163, 1165-66 (4th
Cir. 1986), official dishonesty, see Cox v.
N. Va. Transp. Comm’n, 551 F.2d 555, 557-58
(4th Cir. 1973), and fraud, see McNeill v.
Butz, 480 F.2d 314, 319-20 (4th Cir. 1973).
(Internal footnote omitted).
Here, Plaintiff has sufficiently alleged the utterance of a
derogatory
statement
that
is
demonstrably
false
–
i.e.,
the
publication on the “Maryland Judicial web page” that his 2005
conviction in the Circuit Court for Charles County was for a
third-degree sex offense, rather than a second-degree assault.
Moreover, he has alleged that the defamatory statement resulted
in harm to his reputation and interfered with his prospects for
employment.
A
misclassification
number
as
a
sex
of
courts
offender
10
have
results
recognized
in
a
that
cognizable
See Vega v. Lantz, 596 F.3d 77, 81-82 (2nd
stigma-plus claim.
Cir. 2010); Coleman v. Dretke, 409 F.3d 665, 668 (5th Cir. 2005)
(per curiam) (“by requiring [an inmate] to attend sex offender
therapy, the state labeled him a sex offender – a label which
strongly implies that [the plaintiff] has been convicted of a
sex
offense
and
which
can
undoubtedly
cause
adverse
social
consequences”) (internal marks and citations omitted); Chambers
v. Colorado Dep’t of Corr., 205 F.3d 1237, 1242 (10th Cir. 2000)
(sex offender label is “replete with inchoate stigmatization”);
Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) (per
curiam) (“the stigmatizing effect of being classified as a sex
offender
constitutes
Process Clause.”).
a
deprivation
of
liberty
under
the
Due
Thus, Plaintiff has alleged deprivation of a
right secured by the Constitution.
Defendant argues that dismissal is nevertheless warranted
because she is a state official, and thus not a “person” within
the meaning of § 1983 in her official capacity.
She further
contends that, in her individual capacity, she is entitled to
absolute judicial immunity because she conducts “tasks that are
integral
to
the
judicial
process.”
(ECF
No.
5-1,
at
9).
Defendant argues, in the alternative, that Plaintiff has failed
to state a claim for supervisory liability.
11
1.
Official Capacity
a.
Monetary Damages
Defendant contends that she is not liable to Plaintiff for
money damages in her official capacity because circuit court
clerks are state officials.
(ECF No. 5-1, at 13).
As support,
she observes that these positions are created by the Maryland
State Constitution, that Maryland has statutorily defined the
duties of circuit court clerks, and that clerks are explicitly
designated by statue as “state personnel.”
motion,
Plaintiff
argues
that
court
In opposing the
clerks
officers subject to liability under § 1983.
are
municipal
He argues that a
“judgment against the Clerk of the Circuit Court for Charles
County would be paid out of the funds collected on behalf of
Charles County” (ECF No. 8-1, at 7); that Defendant is “allowed
autonomy in how the government entity is managed and [complies]
with
legal
obligations”
(id.
at
8);
and
that
the
clerk
is
locally elected, “funded by local taxes,” and “handles local
concerns” (id. at 9).
In Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989), the Supreme Court of the United States held that a State
is not a “person” subject to liability under § 1983 and that a
“suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against
the official’s office.”
Thus, a suit against a state official
12
“is no different from a suit against the State itself.”
Will,
491 U.S. at 71 (citing Kentucky v. Graham, 473 U.S. 159, 165-66
(1985); Monell v. Dept. of Social Servs. of City of N.Y., 436
U.S. 658, 690 (1978)).
Municipal governments, on the other
hand, may be sued for constitutional injuries caused by their
officials “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the
Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987)
injury.”
(quoting Monell, 436 U.S. at 690-91).
In deciding a municipal liability claim under § 1983, the
court’s
first
task
is
to
“identify
those
officials
or
governmental bodies who speak with final policymaking authority
for the local governmental actor concerning the action alleged
to
have
caused
the
particular
constitutional
or
statutory
violation at issue.”
McMillian v. Monroe County, Ala., 520 U.S.
781, 784-85 (1997).
Here, there is no dispute that Defendant is
the
“final
policy-maker”
of
the
Office
Circuit Court for Charles County.
of
the
Clerk
of
(ECF No. 1 ¶ 64).
the
The
parties disagree, however, as to whether Defendant was a state
or
local
Defendant
official
was
a
at
state
the
time
official,
of
she
Plaintiff’s
cannot
be
injury.
sued
If
in
her
official capacity as a “person” liable for money damages under §
1983.
If,
on
the
other
hand,
13
she
was
a
county
or
local
official,
then
Plaintiff’s
the
municipality
official
could
capacity
monetary
several
different
be
held
damages
liable
claim
must
and
go
forward.
Courts
look
to
factors
to
determine
whether an official is “an arm of the State or more like a
county or municipality[.]”
Cash v. Granville County Bd. of
Educ., 242 F.3d 219, 223 (4th Cir. 2001).
“The principal factor,
upon which courts have virtually always relied, is whether a
judgment against the governmental entity would have to be paid
from the State’s treasury.”
Cash, 242 F.3d at 223; see also
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997);
Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39 (1994);
Lewis v. Board of Educ. of Talbot County, 262 F.Supp.2d 608, 612
(2003) (“Generally, if the judgment would be paid from the state
treasury, the inquiry is at an end.”).
not
be
paid
from
the
state
Where the judgment would
treasury,
or
if
the
answer
is
uncertain, courts generally consider “(1) the degree of control
that
the
State
exercises
over
the
entity
or
the
degree
of
autonomy from the State that the entity enjoys; (2) the scope of
the entity’s concerns – whether local or statewide – with which
the entity is involved; and (3) the manner in which State law
treats the entity.”
242 F.3d at 224).
state law.
Lewis, 262 F.Supp.2d at 612 (quoting Cash,
In conducting this analysis, courts look to
McMillian, 520 U.S. at 786.
14
Plaintiff
asserts
that
an
adverse
judgment
against
Defendant would be paid from county funds, but cites no legal
authority for this proposition, and Defendant has not addressed
the issue.
Pursuant to Md. Code Ann., State Gov’t § 12-404,
subject to certain limitations, the Maryland State “Board of
Public Works may . . . pay wholly or partly a settlement or
judgment against the State or any State personnel[.]”
“State
personnel”
is
including
any
statutory
provisions
within
that
“State
defined
officer
reflect
definition.
by
or
State
State
that
See
Gov’t
12-401
employee.”
circuit
State
§
The term
court
Gov’t
§
as
Numerous
clerks
fall
15-102(ll)(6)
(“‘State official’ means . . . a clerk of the circuit court”);
State Gov’t § 12-101(a)(11) (defining “state personnel” under
the Maryland Tort Claims Act as including “an employee of a
circuit
court”).
Indeed,
Plaintiff
acknowledges
in
his
complaint that, prior to filing suit, he “submitted a claim with
the
Maryland
State
Treasurer”
(ECF
No.
1
¶
22),
as
he
was
required to do in order to bring a claim against the State or a
State officer under the Maryland Tort Claims Act.
See Gray v.
Maryland, 228 F.Supp.2d 628, 640-41 (D.Md. 2002) (citing State
Gov’t § 12-106(b)(1)).
judgment
against
a
This fact alone strongly supports that a
county
clerk
coffers.
15
would
be
paid
from
state
Even if that were not the case, there can be little doubt
that court clerks are state officers under Maryland law.
Their
office is established by the state constitution, see Md. Const.,
Art. IV § 25 (“There shall be a Clerk of the Circuit Court for
each County”), as is their compensation, id. at § 10(b) (“The
offices
of
budget.”).
the
Clerks
The
“powers
shall
be
funded
and
duties
of
through
clerk
of
the
State
court”
are
delineated by statute, see Md. Code Ann., Cts. & Jud. Proc. § 2201, as are their hours of operation, Md. Code Ann., Cts. & Jud.
Proc. § 2-204, and they are supervised by the State Comptroller
and the judges of the various circuit courts, see 69 Md. Op.
Atty. Gen. 57, 1984 WL 247035, at *1.
report
attached
to
Plaintiff’s
Moreover, as the audit
opposition
papers
reflects,
county clerk offices are subject to statutorily-mandated audits
by the Maryland Office of Legislative Audits.
See State Gov’t §
1220 (requiring an “audit of each unit of the State government”
every three years; defining “unit” as including “each clerk of
court”).
It appears that no Maryland court has directly addressed
the question of whether circuit court clerks are state or local
officials, but other courts have found factors such as these
persuasive.
Cir.
1997)
See Mumford v. Basinski, 105 F.3d 264, 268-69 (6th
(officers
of
state
domestic
relations
court
were
state employees, reasoning that the court was established by the
16
state constitution and its officers were supervised by state
judges); Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989)
(action
against
North
Carolina
county
clerk
of
court
was
“clearly one against the state of North Carolina”); Badillo v.
Thorpe, 158 Fed.Appx. 208, 212 (11th Cir. Dec. 1, 2005 (court
administrators were “part of the state courts system, which . .
. is a state agency”); Fayemi v. Pucinski, 155 F.Supp.2d 944,
948 (N.D.Ill. 2001) (“The Clerk of Court is a state employee
and, consequently, is a state agent for purposes of Eleventh
Amendment immunity”).
that
county
While it is true, as Plaintiff observes,
clerks
are
locally
elected,
have
limited
jurisdiction, and derive funding from local sources, courts have
consistently
found
that
factors
such
as
these
are
not
dispositive.
See Rucker v. Harford County, 316 Md. 275, 285-87
(1989); Rossignol v. Voorhaar, 321 F.Supp.2d 642, 651 (D.Md.
2004) (“The same factors pointing toward the sheriff’s status as
a
county
official
(compensation
from
[county]
treasury,
limitations on some aspects of their jurisdiction, election by
county voters, etc.) may be present, but have already been all
but discounted by the Supreme Court.”) (citing McMillian, 520
U.S. at 791-92).
Considering that a judgment against Defendant would likely
be paid from the state treasury, that her position is created by
the
state
constitution,
and
that
17
her
duties
are
defined
by
statute,
Defendant
is
a
state
official
under
Maryland
law.
Accordingly, she is not a “person” subject to suit under § 1983,
and
Plaintiff’s
official
capacity
claim
for
monetary
damages
cannot be sustained.
b.
Injunctive Relief
In addition to monetary damages, Plaintiff seeks injunctive
relief in the form of a notice to be sent “to other people who
may have been impacted by the improper policies” of the clerk’s
office and an “order expung[ing] [] the record in the Circuit
Court for Charles County for [his] 2005 proceedings.”
1, at 22).
(ECF No.
Defendant contends, without substantive analysis,
that Plaintiff is not entitled to such relief because he “does
not represent ‘other people who may have been impacted by the
improper
policies’”
and
his
criminal
record
now
accurately
reflects a second-degree assault conviction.
While “individuals sued in their official capacity as state
agents cannot be held liable for . . . retrospective injunctive
relief[,] [t]hey may . . . be sued for prospective injunctive
relief to end violations of federal law and remedy the situation
for the future.”
Lewis, 262 F.Supp.2d at 612 (citing Edelman v.
Jordan, 415 U.S. 651 (1974); Milliken v. Bradley, 433 U.S. 267
(1977); Ex parte Young, 209 U.S. 123 (1908)).
The majority of
courts have held that an expungement of any kind constitutes
retrospective relief impermissible under § 1983.
18
See Ellis v.
Dyson, 421 U.S. 426, 441 (1975) (Powell, J., dissenting) (“I
think
it
clear
beyond
question
that
petitioners’
action
for
retrospective relief [i.e., expungement of a criminal record] is
barred”); Kruse v. State of Hawai’i, 857 F.Supp. 741, 753 n. 16
(D.Hawai’i 1994); Constantine v. Rectors and Visitors of George
Mason University, 411 F.3d 474, 496 (4th Cir. 2005) (finding that
expungement
of
retrospective
a
failing
relief);
grade
from
McGee
v.
an
academic
Feneis,
record
No.
was
07-CV-4868
(PJS/FLN), 2009 WL 2928245, at *5 (D.Minn. Sept. 8, 2009) (“An
expungement is retroactive injunctive relief because it does not
prevent a continuing or ongoing violation of federal law – it
simply
changes
past.”).
the
effect
of
an
event
that
happened
in
the
Thus, Plaintiff’s request for expungement of his 2005
conviction in Charles County is likely barred.
Even if it were not, however, this court has no authority
to grant such relief.
Expungement of a state criminal record
“must be sought through the state court system.”
Dennis v.
National R.R. Passenger Corp., 34 Fed.Appx. 950 (4th Cir. 2002);
see also Wallace v. Poulos, No. DKC 08-0251, 2012 WL 993380, at
*7 (D.Md. Mar. 22, 2012); Azez v. Keller, No. 06-0106, 2010 WL
1380024, at *4 (S.D.W.Va. Apr. 1, 2010) (finding that a state
circuit court was “the proper forum” for seeking expungement of
a
criminal
procedure).
record
where
the
state
set
forth
a
statutory
Like the state statute at issue in Azeez, Maryland
19
has a statutory scheme addressing the procedure for expungement
of a state criminal record.
10-101 et seq.
expungement
of
See Md. Code Ann., Crim. Pro. §§
Thus, Plaintiff must address any request for
his
criminal
record
to
the
appropriate
state
court, if at all.
Insofar as Plaintiff seeks affirmative injunctive relief
requiring Defendant to send notice to other persons who may be
affected by the alleged “improper policies” she put in place, he
has failed to state a claim.
Affirmative injunctive relief is
available “[o]nly where there are lingering effects or a not
insubstantial risk of recurring violations.”
Spencer v. Gen.
Elec. Co., 703 F.Supp. 466, 469 (E.D.Va. 1989).
For a court to
order such relief, it must “conclude that a cognizable danger of
recurrent
violation
exists.”
Spencer,
703
F.Supp.
at
469
(quoting United States v. Hunter, 459 F.2d 205, 210 (4th Cir.
1972)).
Plaintiff has set forth no facts suggesting that a
cognizable danger of recurrent violations exists.
Indeed, the
complaint recites that Defendant’s office is regularly audited
by the State (ECF No. 1 ¶ 52), and the appendix attached to the
audit
report
supplements
the
reflects
Office’s
that
a
former
formal
informal
review
review
policy
process
now
to
ensure accurate reporting of criminal dispositions (ECF No. 85).
Accordingly, Plaintiff is not entitled to the injunctive
relief he seeks.
20
2.
Individual Capacity
Plaintiff sues Defendant in her individual capacity under a
theory
of
supervisory
liability.
Individual
capacity
suits
“seek to impose personal liability upon a government official
for actions [she] takes under color of state law.”
Graham, 473 U.S. 159, 165 (1985).
where
a
supervisor
has
knowledge
Kentucky v.
Supervisory liability applies
“that
his
subordinate
was
engaged in conduct that posed a pervasive and unreasonable risk
of
constitutional
injury”
and
responds
with
deliberate
indifference; thus, there must be an “affirmative causal link”
between
the
supervisor’s
inaction
and
the
resulting
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
constitutional harm.
1994); see also Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.
1997)
(“While
particular
liability
a
municipal
official’s
claim
liability
attributed
against
that
claim
conduct
official
based
and
based
a
upon
a
supervisory
upon
the
same
conduct are not perfectly congruent, each requires proof both of
the
official’s
affirmative
link
deliberate
between
indifference
his
conduct
constitutional violation by a subordinate.”
and
of
and
a
a
close
resulting
(internal citation
omitted).
In
his
complaint,
Plaintiff
alleges
that
Defendant
is
individually liable insofar as she “failed to have a proper
process in place [and/or] failed to train employees to ensure
21
that [j]udicial decrees are properly recorded and verified and
reported in criminal cases.”
(ECF No. 1 ¶ 61).
Defendant
argues that Plaintiff’s individual capacity claim under § 1983
must be dismissed because, as Clerk of the Circuit Court for
Charles County, she is entitled to absolute judicial immunity
for “tasks that are integral to the judicial process.”
5-1,
at
9).
She
alternatively
contends
that
(ECF No.
Plaintiff
has
failed to state a claim for supervisory liability.
a.
Absolute Immunity
The
Supreme
Court
has
held
that
individuals
performing
certain functions have absolute immunity from liability under §
1983.
For
immunity
example,
from
judges
individual
discretionary judgment.
423 (1976).
rather
than
and
prosecutors
capacity
suits
enjoy
when
exercising
See Imbler v. Pachtman, 424 U.S. 409,
“[T]he presumption,” however, “is that qualified
absolute
immunity
is
sufficient
to
government officials in the exercise of their duties.”
Reed,
500
“refused
U.S.
to
justification
absolute
478,
486-87
(1991).3
Indeed,
extend
[absolute
immunity]
any
would
warrant,”
including
to
the
further
protect
Burns v.
Court
has
than
its
administrative
or
investigative conduct not closely associated with the judicial
phase of criminal proceedings.
Burns, 500 U.S. at 487; see also
3
Here, Defendant does not assert qualified immunity as a
basis for dismissal.
22
Forrester v. White, 484 U.S. 219, 229 (1988) (holding that a
judge is not entitled to absolute immunity when “supervising
court
employees
and
overseeing
the
efficient
applying
the
operation
of
a
court”).
The
primary
focus
in
absolute
immunity
doctrine is on “functional categories, not on the status of the
defendant.”
Briscoe v. LaHue, 460 U.S. 325, 342 (1983).
When
absolute judicial immunity is extended to officials other than
judges,
“it
is
because
their
judgments
are
functional[ly]
comparab[le] to those of judges – that is, because they, too,
exercise a discretionary judgment as part of their function.”
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993).
Thus, to be entitled to absolute immunity, the official must
exercise discretion in “resolving disputes between parties, or
of authoritatively adjudicating private rights.”
Id. at 435-36.
The focus on whether an individual exercises discretion comports
with
policy
justifications
for
extending
absolute
immunity,
including the “concern that harassment by unfounded litigation
would cause a deflection of [an official’s] energies from his
public
duties,
decisions
and
instead
the
of
possibility
exercising
required by his public trust.”
the
that
he
would
independence
shade
of
his
judgment
Imbler, 424 U.S. at 423; see
also Ostrzenski v. Seigel, 177 F.3d 245, 250 (4th Cir. 1999)
(finding
that
peer
reviewers
23
for
the
Maryland
Board
of
Physicians Quality Assurance are entitled to absolute immunity
because
they
“exercise
their
professional
discretion
in
determining whether one of their fellow physicians has deviated
from the standard of professional care . . . [and] [i]f [they]
were to face the prospect of civil liability for damages, the
exercise of that discretion might be distorted.”); Traversa v.
Ford, 718 F.Supp.2d 639, 646 (D.Md. 2010) (finding the Maryland
Commission
on
Human
Relations
was
entitled
to
quasi-judicial
immunity when determining which complaints to pursue, reasoning
that
it
“has
discretion
to
accept
or
reject
complaints,
to
designate the complaint for systemic processing, to negotiate
settlements, and to hold hearings.”).
A
number
performing
of
courts
have
non-discretionary
absolute immunity.
found
functions
that
are
court
not
personnel
entitled
to
In Antoine, 508 U.S. at 435-36, the Supreme
Court held that court reporters were not entitled to judicial
immunity
because
they
were
“afforded
carrying out of [their duties].”
no
discretion
in
the
Similarly, in McCray v. State
of Maryland, 456 F.2d 1, 4 (4th Cir. 1972), the Fourth Circuit
held that a court clerk was not immune, reasoning that “there is
no basis for sheltering the clerk from liability under section
1983 for failure to perform a required ministerial act such as
properly filing papers.”
official
is
not
called
The court further stated, “where an
upon
to
24
exercise
judicial
or
quasi-
judicial discretion, courts have properly refused to extend to
[her] the protection of absolute judicial immunity, regardless
of
any
apparent
system.”
relationship
of
his
role
to
the
judicial
McCray, 456 F.2d at 3;4 see also Harbeck v. Smith, 814
F.Supp.2d 608, 630 (E.D.Va. 2011) (court clerk who failed to
notify a correctional facility that charges against a criminal
defendant had been dismissed was not entitled to quasi-judicial
immunity because the “alleged course of inaction was [not] a
choice
within
[the
clerk’s]
discretion
[n]or
was
[it]
taken
pursuant to the state court’s direction.”).
The conduct at issue in the instant case – i.e., proper
recordation of a judgment of conviction – is not a discretionary
function.
(“The
See Waller v. Maryland Nat. Bank, 95 Md.App. 197, 208
entry
function
matter.”),
of
and
the
the
vacated
judgment
clerk
on
on
the
possesses
other
docket
no
grounds,
is
a
ministerial
discretion
332
Md.
375
in
this
(1993);
Director of Finance of Baltimore City v. Harris, 90 Md.App. 506,
513 (1992) (“Except as otherwise expressly provided by law, . .
.
the
clerk
has
no
discretion”);
4
see
also
Md.
Rule
2-601
The court later held, in Pink v. Lester, 52 F.3d 73, 77
Cir. 1995), that “[t]o the extent that McCray authorizes a
(4
cause of action for merely negligent conduct that impacts access
to the courts, it is inconsistent with the Supreme Court’s
subsequent decision in Daniels [v. Williams, 474 U.S. 327, 330
(1986) (“the Due Process Clause is not implicated by a negligent
act of an official causing unintended loss of or injury to life,
liberty, or property.”)].”
th
25
(defining procedure for entry of judgment).
Rather, it is a
ministerial task for which the Supreme Court has found officials
are not entitled to absolute immunity.
486-87.
See Burns, 500 U.S. at
Accordingly, Defendant cannot claim absolute immunity
from Plaintiff’s individual capacity suit.
b.
Failure to State a Claim
Supervisory
liability
“arises
from
the
obligation
of
a
supervisory [] officer to insure that h[er] subordinates act
within the law.”
Randall v. Prince George’s County, 302 F.3d
188, 203 (4th Cir. 2002).
prevent
all
illegal
“Although such a supervisor may not
acts
by
h[er]
subordinates,
[s]he
is
obligated, when on notice of a subordinate’s tendency to act
outside
the
law,
to
take
Randall, 302 F.3d at 203.
indifferent
to
that
steps
to
prevent
such
activity.”
Where a supervisor is “deliberately
responsibility,
[s]he
then
bears
some
culpability for illegal conduct by h[er] subordinates, and [s]he
may be held vicariously liable for their illegal acts.”
Id.
Defendant argues that Plaintiff has failed to plead facts
sufficient to show her liability as a supervisor.
she
asserts,
Plaintiff
has
not
alleged
that
Specifically,
the
“improper
recording of a court judgment on a publicly-available docket was
done with [her] knowledge, had ever been done in the past[,] . .
. or pose[d] a pervasive and unreasonable risk of constitutional
injury to the plaintiff.”
(ECF No. 5-1 at 16).
26
She further
contends
that
suggesting
Plaintiff
that
[her]
“fails
to
response
identify
to
her
a
single
knowledge
fact
showed
deliberate indifference . . . or that there was a causal link
between her alleged inaction” and entry of judgment.
(Id.).
In Shaw, 13 F.3d at 799, the Fourth Circuit “set forth
three
elements
necessary
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.
The first two elements generally require a showing of more
than a single incident of harm.
In Shaw, for example, a police
officer shot and killed a suspect during an arrest, and the
victim’s family sued the officer’s supervisor in his individual
capacity.
The Fourth Circuit held that the police supervisor
demonstrated deliberate indifference to the safety of citizens
where the supervisor “had knowledge of at least three incidents
in
which
[the
unreasonable
officer]
risk
of
used
harm
to
excessive
force
arrestees,”
27
yet
which
the
posed
an
supervisor
failed to reprimand the officer.
Id. at 800.
Similarly, in
Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001), a student who
was molested by a teacher over a period of several years sued
the school principal under a theory of supervisory liability.
The court held that the principal was liable, reasoning that she
took no action to protect the student, despite knowing that the
teacher
was
“very
physical”
with
them
and
that
students
accompanied him on camping trips where no other adults were
present.
Id. at 235.
See also Slakan v. Porter, 737 F.2d 368,
375 (4th Cir. 1984) (finding prison supervisors were liable for
failure to implement policies restricting the use of force by
guards
where
the
supervisors
knew
of
at
least
seven
prior
instances of the conduct that caused injury to the plaintiff).
Where a complaint recites only a single instance of harm,
courts
have
generally
supervisory liability.
found
a
failure
to
state
a
claim
for
In Thompson v. Dorsey, No. ELH–10–1364,
2011 WL 2610704, at *5 (D.Md. June 30, 2011), for example, a
citizen who was allegedly molested by a police officer during a
traffic
stop
sued,
inter
alia,
the
officer’s
supervisor
for
failing to implement training policies that would have prevented
the sexual assault.
Observing that the complaint cited only a
single allegation of misconduct, Judge Hollander dismissed the
complaint
without
prejudice,
reasoning
that
“[a]
supervisor
cannot ‘reasonably be expected to guard against the deliberate
28
criminal acts of his properly trained employees when he has no
basis upon which to anticipate the misconduct.’”
Thompson, 2011
WL 2610704, at *5 (quoting Slakan, 737 F.2d at 373); see also
Randall, 302 F.3d at 207 (“courts have appropriately required
proof
of
multiple
instances
of
misconduct
before
permitting
supervisory liability to attach.”).
While it may be true that Plaintiff will ultimately be
required to show prior instances of misconduct to prevail on his
supervisory liability claim, the focus at the dismissal stage is
on plausibility.
Considering the well-pleaded allegations of
the complaint in the light most favorable to Plaintiff, as the
court must on a motion to dismiss, 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
judicial website.
of
judgments
of
conviction
on
a
The question is a close one, and Plaintiff’s
ultimate burden in proving deliberate indifference is heavy, but
the audit report “nudge[s] [his] claim[] across the line from
conceivable to plausible[.]”
appendix
to
the
audit
Twombly, 550 U.S. at 570.
report
indicates
that
The
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
procedures were in some respect insufficient.
29
these
informal
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.
Ultimately, the “determining issue on supervisory liability
is
whether
defendant
proximately
caused
a
violation
of
the
plaintiff’s rights by doing something or failing to do something
he should have done,” and “this issue is ordinarily one of fact,
not law.”
Shaw, 13 F.3d at 798-99 (citing Avery v. County of
Burke, 660 F.2d 111, 114 (4th Cir. 1981); Spell v. McDaniel, 591
F.Supp. 1090, 1109-10 (M.D.N.C. 1984)).
to
discovery
Accordingly,
to
attempt
Defendant’s
to
make
motion
Plaintiff is entitled
the
to
requisite
dismiss
showing.
Plaintiff’s
individual capacity claim under § 1983 will be denied.
B.
The State Law Claims
In addition to the federal § 1983 claim, Plaintiff raises
supplemental state law claims alleging violations of Articles
19, 23, 24, and 40 of the Maryland Declaration of Rights and a
statutory violation under Md. Code Ann., Cts. & Jud. Proc. § 2201.
Defendant has not analyzed the alleged violations of the
Maryland
claims,
Declaration
but
argues
of
that
Rights
§
2-201
separately
of
the
from
Courts
the
and
Proceedings Article does not provide a cause of action.
30
§
1983
Judicial
Insofar
as
Plaintiff’s
§
1983
individual
capacity
claim
against Defendant survives dismissal, so, too, do his claims
under Articles 19, 23, and 24, which are in pari materia with
the Due Process Clause of the Fourteenth Amendment.
Department
of
Public
Safety
and
Correctional
See Doe v.
Services,
185
Md.App. 625, 636 (2009) (“Article 24 . . . is in pari materia
with the Due Process Clause of the Fourteenth Amendment”); Hof
v. State, 97 Md.App. 242, 250 (1993) (“Numerous cases over the
decades have held Article 23 to be in pari materia with the due
process clause of the Fourteenth Amendment”); Attorney General
v. Johnson, 282 Md. 274, 298 (1978) (“The ‘law of the land’ in
Article
19
is
the
same
due
process
of
law
required
by
the
[F]ourteenth [A]mendment”), overruled on other grounds, Newell
v. Richards, 323 Md. 717, 734 (1991).
Article 40, which provides that “every citizen of the State
ought to be allowed to speak, write and publish his sentiments
on
all
subjects,
privilege,”
is
being
construed
responsible
in
pari
for
the
materia
abuse
with
of
the
that
First
Amendment.
Howard County Citizens for Open Government v. Howard
County
of
Bd.
Elections,
201
Md.App.
605,
623
n.
19
(2011)
(citing State v. Brookins, 380 Md. 345, 350 n. 2 (2004); The
Pack
Shack,
Inc.
v.
Howard
County,
377
Md.
55,
64
(2003)).
Plaintiff cites a right under Article 40 “to not be defamed by
the government or government agents” (ECF No. 1 ¶ 84), but it is
31
not at all clear that such a right exists or how Plaintiff’s
right to freedom of speech could be implicated based on the
facts of the case.
Accordingly, Plaintiff’s claim under Article
40 will be dismissed.
Plaintiff’s claim under § 2-201 of the Courts and Judicial
Proceedings Article also cannot be sustained.
That section,
entitled “Powers and duties of clerk of court,” provides, in
relevant part, that “[t]he clerk of court shall . . . [m]ake
proper legible entries of all proceedings of the court and keep
them in well-bound books or other permanent form.”
Ann., Cts. & Jud. Proc. § 2-201(a)(2).
Md. Code
On its face, the statute
does not expressly provide a cause of action.
Defendant
argues,
based
on
federal
case
law,
that
this
statute does not give rise to an implied right of action.
his
opposition
papers,
Plaintiff
does
not
contend
In
otherwise;
rather, he merely asserts that “[in order] to claim a special
relationship
Defendant,
a
and
a
duty
Plaintiff
statute or rule.”
of
must
care
plead
owed
to
a
reference
(ECF No. 8-1, at 14).
Plaintiff
to
at
by
a
least
a
Thus, it appears that
he cited § 2-201 in the complaint to establish a duty owed by
Defendant and did not intend to raise a freestanding cause of
action.
Insofar as the complaint appears to raise a claim for
violation of § 2-201, that claim is subject to dismissal.
32
IV.
Conclusion
For
the
foregoing
reason,
Defendant’s
will be granted in part and denied in part.
motion
to
dismiss
A separate order
will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?