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Mossburg v. State

United States District Court, D. Maryland

June 29, 2016




         Plaintiff Christopher Mossburg ("Mossburg") claims the State of Maryland violated Title II of the Americans with Disabilities Act ("ADA") by failing to provide him with a reader in two separate but related legal proceedings, one criminal and one civil. Mossburg proceeded pro se in both cases, as he does now in this case. The State filed a motion to dismiss, or in the alternative, motion for summary judgment. After reviewing the filings, and the transcripts, the Court determines that no hearing is necessary. Local Rule 105.6. Because the transcripts reveal that Mossburg was able to participate in both legal proceedings and Mossburg has pled no facts to contradict the transcripts, the State's motion to dismiss shall be granted.


         Mossburg alleges that he suffers from learning disabilities that impact his ability to read and write. ECF No. 22, at 2; ECF No. 30-5. This case arises first out of a criminal case in the Circuit Court of Maryland for Anne Arundel County, where Mossburg pled guilty to possession of marijuana. ECF Nos. 25-2 through 25-6. The second is a civil case in the District Court of Maryland for Montgomery County, which was dismissed for failure to state a cause of action. ECF No. 25-7.

         On December 22, 2011, four days after he was arrested for traffic violations and possession of marijuana, Mossburg visited the Office of the Public Defender ("OPD") to determine if he wanted to be represented by a public defender or private counsel. ECF No. 22, at 1. Mossburg requested that the OPD record the conversation because of his disability, and the public defender obliged him. Id. at 2. Mossburg told the public defender he did not want the OPD to enter its appearance until he consented. Id. The OPD asked him to sign a form Mossburg alleges he could not read accurately. Id. On December 26, 2011, Mossburg alleges the OPD entered their appearance on his behalf in the criminal proceedings. Id. Mossburg further alleges that he was not able to talk to private attorneys because his case file showed he was represented by the OPD. Id. at 2.

         On May 8, 2012, Judge Nancy D. Loomis signed an order approving Mossburg's formal request for ADA accommodation for his disability. ECF No. 25-10, at 13. The following day, at a status conference, a public defender showed up to represent Mossburg. ECF No. 25-2, at 2. Judge Michele D. Jaklitsch listened to the recording of the December 22 conversation, and ordered the public defender's appearance stricken from the file. Id. at 6. Mossburg told the court he wanted time to decide if he wanted representation. Id. Judge Jaklitsch told him he had until the trial set for July 11, 2012 to decide if he wanted representation. Id.

         Despite the order to strike the appearance from his file, the public defender still appeared on the case file. It appeared even after Judge William C. Mulford, II reissued a similar order at a status hearing on July 27, 2012.[1] ECF No. 25-3, at 5-6. Mossburg called Charles Dorsey, the person the court administrator told him could fix the issue, to try to remove the public defender from his case file. ECF No. 22, at 6. Dorsey allegedly told Mossburg he should not have signed a document he could not read entirely, because "that's not what normal people do, " and hung up. Id.

         More than a month after the status hearing, on September 4, 2012, the court granted Mossburg's motion to postpone because of his inability to retain counsel due to the appearance of the public defender on his file. ECF No. 25-8. The court postponed the trial to October 10, 2012. Id. At the pre-trial hearing on October 10, the court noted the public defender still appeared on the file. ECF No. 22, at 7.

         At the July 27 status hearing, Judge Mulford asked Mossburg if he wanted representation or if he wanted to represent himself. ECF No. 25-3, at 5-6. Mossburg protested to the judge that his insistence on a yes or no answer regarding his desire to represent himself or seek counsel was a "fastball." Id. at 9. Judge Mulford said the case had already gone on much longer than an ordinary case involving the same charges, and said, "[T]his case is [not] going on a fastball track, you're not even at t-ball league at this point in time, we're still so far behind. You're sitting in toddler stage where right now daddy is over the crib saying, ‘Goo-goo, ga-ga.'" Id. Judge Mulford told Mossburg he could speak to the prosecutor, and told the prosecutor to explain Mossburg's charges. Id. at 9. Mossburg alleges the prosecutor refused to speak to him about the case. ECF No. 22, at 5.

         On August 9, 2012, Douglas M. Hofstedt, court administrator, emailed Mossburg to explain the court was not required to provide him with a reader to help him with research, but assured him he would have a reader at court appearances to read to him any written material referred to during the proceedings. Id. at 6; ECF No. 22-5, at 2 ("If there is any written material that will be referred to at trial, a member of the Court staff will read it out loud for you, if you request.").

         On October 10, the day of the trial, Mossburg requested a third postponement because the witnesses he subpoenaed were not present. ECF No. 22, at 9. Judge Mulford, the postponement judge for that day, denied his request. ECF No. 25-5. Mossburg argued that the absence of Dr. Michael April, his subpoenaed witness, merited postponement of the trial. Id. at 6. He tried to explain the recent law allowing for an affirmative defense for possession of marijuana if the defendant was using the marijuana to treat a debilitating medical condition.[2] Id.; see Md. Code. Ann., Criminal Law § 5-601(c)(3). Mossburg held up a printed Maryland Annotated Code and said, "I have the book. I can't read it very well, but I can show it to you." ECF No. 25-5, at 6. Mossburg attempted to explain the relevant law. Id. Judge Mulford stated the law seemed only to apply to possible punishment if and when a defendant is found guilty.[3] Id. at 7. Judge Mulford, believing the presence of Dr. April would only be relevant at the sentencing hearing, denied the postponement request. Id. at 9.

         No reader was present at the pre-trial hearing later that same day. Id. at 7. Judge Laura S. Kiessling asked Mossburg if his disability had any impact on his ability to understand that day's proceedings. ECF No. 25-4, at 6-7. Mossburg replied, "Not at all." Id. Mossburg accepted a plea agreement that dropped the traffic charges. Id. At sentencing on November 27, 2012, the court sentenced Mossburg to probation before judgment without any supervised probation, only requiring him to pay court costs. ECF 25-6, at 12.

         Mossburg subsequently filed a civil suit against Dr. April in the District Court of Maryland for Montgomery County.[4] ECF No. 22, at 9. At the pre-trial hearing on July 24, 2013, Judge Audrey Creighton recognized Mossburg's ADA request for a reader had been granted, and attempted to obtain a reader for him. ECF No. 23-6, at 5. While a reader was being located, the court discovered that Mossburg had not properly served his witness and that he sought a postponement. Id. at 6-7. The court then inquired as to Mossburg's cause of action, eventually finding, after substantial discussion, that there was no cause of action. Id. at 57-58, 75-76. During the discussion, Mossburg remarked that "I'm getting asked a lot of questions, I'd love to be reading you know what I have to you but the readers are not here-." Id. at 12. Eventually the court recessed to determine when a reader would arrive. Id. at 33. When court resumed, Judge Creighton reported that a reader could arrive "in about an hour and a half." Id. Judge Creighton continued to discuss Mossburg's potential causes of action with him, and Dr. April's counsel and Judge Creighton reviewed Mossburg's Complaint and read from it. See, e.g., id. at 40. After much discussion, Dr. April agreed to redact the objectionable material in Mossburg's record, provide his records to him, and reimburse him for ten dollars he spent on faxes. Id. at 55-56, 75. Judge Creighton granted the motion to dismiss. Id. at 75.

         PROCEDURAL ...

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