United States District Court, D. Maryland
MARK A. PANOWICZ,
SHARON L. HANCOCK
DeBORAH K. CHASANOW, District Judge.
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. 72); and (4) a motion to supplement Plaintiff's opposition to Defendant's summary judgment motion filed by Plaintiff (ECF No. 86). 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.
A. Mr. Panowicz's Convictions and Confinement
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. (ECF No. 67-2, at 7). The indictment was later amended to charge second-degree assault, and Plaintiff ultimately entered an Alford plea to that count on April 20, 2005. The remaining charges were nolle prossed. (ECF Nos. 64-5, at 3 and 67-3). The standard procedure in Charles County Circuit Court following a plea allocution is that the courtroom clerk prepares a paper form with the disposition of the case, which is reviewed and 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 record to the relevant correctional institution. (Id. ¶ 7). If the defendant is released on probation, however, the Clerk's Office does not use UCS to 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 the final disposition as a second-degree assault conviction. (ECF No. 64-2 ¶ 9). On June 13, 2005, Plaintiff received a two-year suspended sentence and four years of probation for the second-degree assault conviction. (ECF No. 80-1). Following the sentencing, the courtroom clerk prepared a paper docket entry form with the correct disposition of Plaintiff's charges that was initialed and approved by the presiding judge. The clerk in the criminal division who entered the sentence in UCS did not amend the original charge to correspond with the charge on the paper form. (ECF No. 64-2 ¶ 9). 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. Instead, the paper form from the sentencing hearing that contained the correct disposition of his charge was sent to the probation office, and Plaintiff began serving his four years of probation in accordance with his second-degree assault conviction. (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. (ECF No. 64-4 ¶ 4). 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 County, including the incorrect charge of third-degree sex assault, was automatically transferred 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. (ECF No. 64-5, at 3-4). After his hearing on May 22, Plaintiff was immediately taken into custody and transported to the St. Mary's Detention Center ("Detention Center"). (Id. ). Shortly after charges were brought in St. Mary's County, a violation of probation proceeding was commenced in Charles County. (Id. at 14). 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. ). Plaintiff obtained authorization from the court for work release during his hearing, and, once he arrived at the Detention Center, attempted to coordinate the details of work 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. (Id. at 5). Plaintiff then had his girlfriend, Sandra Livesay, and 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. (Id. at 5-8). 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 was informed by his attorney that Sprint had terminated his employment. Sprint sent Plaintiff's attorney and Plaintiff a letter dated May 30, 2008, indicating that Sprint considered Plaintiff to have abandoned his job voluntarily because he had been absent from work for more than three consecutive days starting on Friday, May 23, 2008, without properly reporting his absence to management. (Id. at 8; ECF No. 72-9). The letter indicated that Sprint considered Plaintiff voluntarily to have terminated his employment effective May 23, 2008. (ECF No. 72-9). 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.
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 than his actual conviction for second-degree assault. (Id. at 11). Because he was listed as a third-degree sex offender, the Detention Center required Plaintiff to register as a sex offender before he was permitted to leave the Detention Center, which included leaving for work release. (Id. ). 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). According to Plaintiff, the real reason Sprint fired him in May 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. (ECF No. 72-1 ¶ 44). 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. (Id. ).
B. 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. In 2003, she became the Chief Deputy Clerk. (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.
(ECF No. 64-2 ¶ 3). On September 19, 2005, Mr. Day passed away unexpectedly. (Id. ¶ 4). Ms. Hancock became Clerk of Court on September 21, 2005. (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). She further asserts that she is "unaware of any other 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 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 was performed by the Office of Legislative Audits ("OLA"). (Id. ¶¶ 12, 15). 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 - 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 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 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 judicial immunity in her individual capacity. Defendant's motion was granted in part and denied in part by memorandum opinion and order issued on September 12, 2012. (ECF Nos. 9 and 10). 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 of speech was not implicated by the alleged defamation. 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[.]" (ECF No. 9, at 29). It was also noted that:
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 ...