United States District Court, D. Maryland
W. Grimm United States District Judge.
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.
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]
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.” 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.
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. 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.
Motion to Amend
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.”
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.
Appointment of Counsel
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.
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.
Standard of Review - Motion to Dismiss
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 ...