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Panowicz v. Hancock

United States District Court, Fourth Circuit

May 17, 2013



DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this civil rights action are cross-motions for reconsideration filed by Plaintiff Mark A. Panowicz (ECF No. 11) and Defendant Sharon L. Hancock (ECF No. 13) and Plaintiff's motion for leave to amend his complaint (ECF No. 16). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motions will be denied.

I. Background

Plaintiff, proceeding pro se, commenced this action on August 29, 2011, by filing a complaint against Ms. Hancock, individually and in her official capacity as Clerk of the Circuit Court for Charles County, Maryland, alleging constitutional violations pursuant to 42 U.S.C. § 1983 and supplemental state law claims. The complaint relates to the erroneous publication on the Maryland judicial website of Petitioner's 2005 second-degree assault conviction as a thirddegree sex offense. Plaintiff discovered this error while incarcerated for a separate offense in or around August 2008, and the website was corrected in November 2008 to reflect accurately his crime of conviction. He alleges that, since the time he was released from incarceration in February 2009, he has been unable to find work because many of his former colleagues believe he is a convicted sex offender due to the erroneous report on the website. The complaint requests an award of compensatory and punitive damages, as well as injunctive relief in the form of expungement of his 2005 conviction and an order directing notice to others who may have been affected by any policy that led to inaccurate publication of criminal convictions in the Circuit Court for Charles County.

In response, Ms. Hancock moved to dismiss, arguing, inter alia, that she was entitled to Eleventh Amendment immunity in her official capacity and absolute judicial immunity in her individual capacity. That motion was granted in part and denied in part by a memorandum opinion and order issued September 12, 2012. As to the official capacity claim for money damages, the court found that circuit court clerks are state officials under Maryland law, and, therefore, not "persons" subject to suit for money damages under § 1983. It 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 violation of Article 40 of the Maryland Declaration of Rights was also dismissed, as the court found that his right to freedom of speech was not implicated by the alleged defamation.

With regard to Plaintiff's individual capacity claim under § 1983, the court rejected Defendant's argument that she was entitled to absolute judicial immunity, and found that the complaint stated a claim for supervisory liability:

Plaintiff has set forth a plausible claim that he suffered a cognizable injury as a result of Defendant's failure to implement formal safeguards against the erroneous publication of judgments of conviction on a judicial website. The question is a close one, and Plaintiff's ultimate burden in proving deliberate indifference is heavy, but the audit report nudges his claim across the line from conceivable to plausible.[1] The appendix to the audit report indicates that Defendant implemented informal procedures to ensure that judgments were accurately recorded, but the State's recommendation that formal policies be adopted at least suggests that these informal procedures were in some respect insufficient. To the extent that Defendant may have known of a propensity for such errors and failed to respond, whether by implementing a formal policy or providing training to her subordinates, Plaintiff has set forth a sufficient § 1983 claim against Defendant in her individual capacity, albeit by a very thin margin.

(ECF No. 9, at 29-30 (internal marks and citations omitted)). Plaintiff's claims alleging violations of Articles 19, 23, and 24 - which are in pari materia with the Due Process Clause of the Fourteenth Amendment - were also permitted to go forward as state law analogues to the surviving § 1983 claim.[2]

On September 25, 2012, Plaintiff filed a motion for reconsideration of each of the dismissed counts. (ECF No. 11). In opposing that motion, Defendant did not address any of Plaintiff's arguments; rather, she essentially advanced her own argument for reconsideration based upon the novel assertion that "Defendant Hancock was not the Clerk of the Circuit Court for Charles County at the time Plaintiff alleges Defendant Hancock failed to take action as the Clerk." (ECF No. 12, at 3 (emphasis omitted)). On the same date, Defendant separately filed a substantively-identical motion for reconsideration. (ECF No. 13).

In opposing Defendant's motion for reconsideration, Plaintiff asserts that Ms. Hancock's predecessor, Richard A. Day III - who is now deceased - "was the proper Clerk of the Circuit Court for Charles County at the time in question, " and asserts that he would "submit an amended Complaint to [correct] this... mistake." (ECF No. 15 § 11). Nevertheless, he argued, insofar as Defendant was the Chief Deputy Clerk of the Circuit Court for Charles County during the relevant time period, she may still be liable as a supervisor under § 1983 and, in any event, she was the clerk of court at the time of the erroneous publication on the judicial website.[3] On January 18, 2013, Plaintiff filed a motion for leave to amend his complaint, attaching a proposed amended complaint naming Ms. Hancock (in her individual and official capacities as clerk and chief deputy clerk), Mr. Day (in his official capacity as clerk), Mr. Day's estate (in his individual capacity), and the Commissioners of Charles County, Maryland. (ECF No. 16).

II. Motions for Reconsideration

Because the parties seek reconsideration of a non-final, interlocutory order, their motion is properly analyzed under Fed.R.Civ.P. 54(b). See Fed.R.Civ.P. 54(b) ("[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action... and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."). The precise standard governing a motion for reconsideration of an interlocutory order is unclear. Although the standards articulated in Rules 59(e) and 60(b) are not binding in an analysis of Rule 54(b) motions, see Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently look to these standards for guidance in considering such motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D. N.C. 2005). The Akeva court recognized that

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

Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md. Aug. 4, 2010) (applying this three-part test when evaluating a motion for reconsideration under Rule 54(b)). A motion for reconsideration under Rule 54(b) may not be used merely to reiterate ...

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