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Duffey v. State

United States District Court, D. Maryland

August 29, 2016

ROWLAND DUFFEY, #417190, Plaintiff,


          Paul W. Grimm United States District Judge.

         I. Background

         Plaintiff Rowland Duffey was convicted in 2012 in the Circuit Court for Howard County of human trafficking under Md. Code Ann., Crim. Law § 11-303(a)(1) and was sentenced on August 23, 2013 to a ten-year term in the Department of Corrections (“DOC”). State Ct. Mot. to Correct Sent. 1, ECF No. 14-3. The sentencing court ordered him to register with the Maryland Sex Offender Registry (“MSOR”) as a Tier II sex offender. State Commitment Rec., ECF No. 14-2. On or about April 22, 2014, Duffey filed a motion to correct an illegal sentence, claiming that the sentencing judge should not have ordered him to register as Tier II sex offender because the intended victim of the crime was not a minor, such that “the crime(s) for which he was convicted and the level thereof (i.e. Misdemeanor) do not call for the requirement of the Petitioner to Register as a Sex Offender.” State Ct. Mot. to Correct Sent. 1-2. He also argued that the “D.N.A. samples” taken from him “should be removed from the Maryland Database” because he was not convicted of any felony, and “D.N.A. samples are collected of those who[] have been convicted of a felony.” Id. at 2.

         The state court held a hearing on the motion and on June 10, 2014, Circuit Court Judge Richard S. Bernhardt held that the portion of the sentence which required Duffey to register as a Tier II sex offender was illegal because the victim was not a minor. State Ct. Order, ECF No. 14-4. The sentence was vacated as to the registry requirement. Id. “The remainder of the sentence imposed remain[ed] unchanged.” Id.

         On June 25, 2016, Duffey, who now is confined at the Central Maryland Correctional Facility in Sykesville, Maryland, filed a 42 U.S.C. § 1983 civil rights complaint against the State of Maryland (the “State”) and Howard County (the “County”). Compl., ECF No. 1. Duffey alleges that, because he was “illegally registered as a sex offender, ” he has been “forced to endure the humili[ations], the brutalities, and the discrimination heaped upon individuals with such a classification.”[1] Id. at 1-2. He asserts that the action taken was a “grandiose mistake and [an] overreaching of power.” Id. at 2. Duffey claims that it has “taken hours of effort and months of time to have this defaming and slanderous information taken down from the few websites that are willing.” Id. He seeks $100, 000.00 in compensation for the alleged slander and defamation. Id. at 3.

         Duffey has filed motions to amend his complaint, ECF No. 8; to appoint counsel, ECF Nos. 9, 21 & 23 (opposition incorporating request for counsel); to compel, ECF No. 24; and for production of documents, ECF Nos. 10, 17 & 25. The County and the State have filed motions to dismiss the complaint.[2] ECF Nos. 11, 14 & 18. Duffey has opposed their motions. ECF Nos. 15 & 23. Both Defendants have filed replies. ECF Nos. 19 & 28. A hearing is not necessary. See Loc. R. 105.6.

         II. Motion to Amend

         Duffey moves to amend his Complaint to seek injunctive relief “in the form of a court order ordering all agencies in possession of the plaintiff[']s DNA to destroy all samples.” Pl.'s Mot. to Am. 1. Specifically, he claims that the Maryland State Police are violating Maryland law by retaining his DNA and by acting in accordance with a court order that was vacated in 2014. Id. He asks that “all physical samples and electronic records be destroyed or expunged.” Id.

         Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). Nonetheless, the Court should deny leave to amend if amendment “would prejudice the opposing party, reward bad faith on the part of the moving party, or . . . amount to futility.” MTB Servs., Inc. v. Tuckman-Barbee Constr. Co., No. RDB-12-2109, 2013 WL 1819944, at *3 (D. Md. Apr. 30, 2013). The Maryland State Police is a department of the state government. Md. Code Ann., Pub. Safety § 2-201. Such departments are not persons and therefore cannot be sued under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989); see also Mesmer v. St. Mary's County, No. DKC-10-1053, 2010 WL 4791884, at *10 (D. Md. Nov. 18, 2010) (stating that the Maryland State Police is not a person under Section 1983). Nor is “an agency of a state . . . a ‘person' within the meaning of 42 U.S.C. § 1983.” Barksdale v. Green, No. DKC-15-1109, 2016 WL 4077713, at *9 n.11 (D. Md. Aug. 1, 2016) (citing Will, 491 U.S. at 64-65, 70-71). Therefore, Duffey's request to amend to add a claim for injunctive relief against the Maryland State Police and unnamed “agencies” for retention of his photographs, fingerprints and DNA in violation of state law must be denied based on futility because he has failed to set out a federal claim. See Will, 491 U.S. at 65; Mesmer, 2010 WL 4791884, at *10.

         III. Appointment of Counsel

         Duffey seeks the appointment of counsel, claiming that he “is unable to afford counsel, ” “[t]he issues involved in this case are complex, ” and he “has limited knowledge of the law.” Pl.'s Mot. for Appointment of Counsel 1. He further alleges that he is unable to “figure [his] way through the bureaucracy” and “unable to identify the people[] [he] should be suing in their individual capacity, ” and he requires counsel to help him “navigate” his suit. Pl.'s Supp. Mot. for Appointment of Counsel 1. Duffey's motion for leave to proceed in forma pauperis was granted. ECF No. 5. Although 28 U.S.C. § 1915(e)(1) permits a court to request an attorney to represent an indigent litigant, it “does not authorize the federal courts to make coercive appointments of counsel.” Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 309-10 (1989). A district court need not request an attorney's assistance pursuant to § 1915(e)(1) unless the case presents complex issues or exceptional circumstances. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard, 490 U.S. at 298.

         This case presents no exceptional circumstances warranting a request for representation pursuant to § 1915(e)(1). Duffey, who has filed his self-represented complaint and subsequent motions and oppositions, has failed to show a particular need or exceptional circumstances which would require the assistance of a trained practitioner. Therefore, the motions to appoint counsel shall be denied. See Whisenant, 739 F.2d at 163.

         IV. Standard of Review - Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose “‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678-79. SeeVelencia ...

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