United States District Court, D. Maryland, Southern Division
DELFON L. HARE, SR., Plaintiff,
JAE B. SHIN, et al., Defendants.
J. HAZEL, UNITED STATES DISTRICT JUDGE
L. Hare, Sr., ("Plaintiff") filed the instant
self-represented civil rights complaint against known and
unknown federal, state and local officials involved in his
2006 arrest and subsequent conviction. ECF No. 1 at
10-13. In addition, Plaintiff raises a
malpractice claim against his attorney, Michael Worthy, who
represented him in the state court proceedings. Id.
at 14. Plaintiff seeks declaratory judgment, injunctive
relief and punitive and compensatory damages. Id. at
14-19. Plaintiff has also filed a Motion for Leave to Proceed
in Forma Pauperis, ECF No. 2, which shall be granted. No
hearing is necessary. Loc. Rule 105.6 (D. Md. 2016). For the
following reasons, the case will be dismissed.
complains that in 2006, Jae B. Shim, an agent of the Federal
Bureau of Investigation ("FBI"), stated that
Plaintiffs October 11, 2006 arrest by Shim and employees of
the Prince George's County Police Department was made
pursuant to a body attachment warrant issued in the State of
Maryland. ECF No. 1 at 10. Antonio Hill, a Prince
George's County Police Detective, also stated in October
of 2006. that the FBI called to arrest Plaintiff pursuant to
a warrant. Id. Plaintiff alleges that on July 27,
2008, Assistant United States Attorney Deborah Johnston
stated that Plaintiffs October 2006 arrest resulted from a
federal investigation. Id. Plaintiff claims that
Shim, Hill, and Johnston did not secure or produce the legal
justification for his October 2006 arrest, in violation of
Plaintiff s constitutional and statutory rights. Id.
Plaintiff maintains that no warrant in fact exited prior to
his October 11, 2006 arrest. Id. at 11. He alleges
that Johnston was aware of this fact and concealed Shim's
false declaration. Id.
his second claim. Plaintiff alleges that on July 27, 2008.
Johnston failed to disclose that a writ of habeas corpus ad
prosequendum had been issued. Id. Plaintiff states
that he was convicted of obstruction of justice because
Johnston failed to disclose the writ. Id. He further
alleges that the State of Maryland claims the writ was
successfully mailed and faxed to the United States Marshal
Service and that he had a right to know whether the writ was
received by the U.S. Marshal. Id. Plaintiff
maintains that Johnston's failure to disclose the writ
further concealed Shim's falsified declarations regarding
the October 11, 2006 arrest. Id.
support of his third claim. Plaintiff states that multiple
individuals, acting together, have concealed official
misconduct regarding his October 11, 2006 arrest and
imprisonment. Plaintiff states that he has the right to be
served with a true and correct copy of the justification for
his seizure and the probable cause for his arrest.
Id. In support of this claim, Plaintiff states that
Harold Hayes, a Prince George's County police officer,
failed to secure the warrant, thus allowing Plaintiffs
unlawful arrest to proceed. Id. at 12. Plaintiff
also states that Theresa Dean, whose role is unidentified by
Plaintiff also knew that the legal justification for his
arrest had to be made a part of the record. Id.
Plaintiff alleges Allison Green, an Assistant State's
Attorney for Prince George's County, knew Plaintiffs
arrest was a result of false arrest and imprisonment and that
no warrant existed. Id. Plaintiff states that she
endeavored to prosecute him for 4 years before abandoning the
prosecution without explanation. Id. Plaintiff
states that Hayes, Dean, and Green all knew that a warrant
did not exist. Id.
support of his fourth claim, Plaintiff alleges that on May
17, 2007, Attorney Michael Worthy, Assistant State's
Attorney Green and the Honorable Vincent J.
Femia conducted a criminal proceeding in
Plaintiffs absence. Id. Plaintiff states that he
could not waive his rights or be convicted of a felony
offense without personally admitting the crime. Id.
at 12-13. Plaintiff states that Worthy abandoned and breached
his fiduciary duty as Plaintiffs attorney, and Green
unlawfully accepted and entered a guilty plea in
Plaintiff's absence. Likewise, Plaintiff states that
Judge Femia entered the guilty plea improperly. He states
that Judge Femia knew Plaintiff was detained in the county
jail and that Femia also knew or should have known that
entering a guilty plea in absentia was unlawful and
irregular. Id. at 13. Finally, Plaintiff alleges
that Jenifer H. Berger and Prince George's County
State's Attorney Angela Also brooks unjustifiably
dismissed charges against him on August 18, 2011.
Id. at 16.
Court is obliged by 28 U.S.C. § 1915(a)(1) to screen
prisoner complaints and dismiss any complaint that is
frivolous, malicious or fails to state a claim upon which
relief may be granted. In deciding whether a complaint is
frivolous, "[t]he district court need not look beyond
the complaint's allegations .... It must, however, hold
the pro se complaint to less stringent standards than
pleadings drafted by attorneys and must read the complaint
liberally." See White v. White. 886 F.2d 721,
722-23 (4th Cir. 1989). Furthermore, the Court may consider
sua sponte a statute of limitations defense visible
on the face of the complaint in the context of §1915
filings. Nasim v. Warden, Maryland House of
Correction, 64 F.3d 951, 953-54 (4th Cir. 1995).
1983 provides a remedy against any person who, under color of
state law, deprives another of rights protected by the United
States Constitution. See 42 U.S.C. § 1983.
Under Bivens and its progeny, Plaintiffs have a
similar remedy against violations of federal or
constitutional law committed by federal actors. See
Bivens v. Six Unknown Named Agents of Fed Bureau of
Narcotics, 403 U.S. 388, 397 (1971)).
statute of limitations for all § 1983 claims is borrowed
from the applicable state's statute of limitations for
personal-injury actions, even when a plaintiffs particular
§ 1983 claim does not involve personal injury."
Tommy Davis Const., Inc. v. Cape Fear Pub. Util.
Auth., 807 F.3d 62. 66-67 (4th Cir. 2015)(citing
Wilson v. Garcia. 471 U.S. 261, 275-80 (1985)). In
Maryland, the applicable statute of limitations is three
years from the date of the occurrence. See Md. Cts
& Jud. Pro. Code § 5-101. Similarly, "[a]s
Bivens actions do not have an express limit period,
claims titled pursuant to Bivens are subject to the
analogous state statute of limitations." Samuel v.
Palmer, No. CIV. PJM 09-3141, 2010 WL 2976133. at *2 (D.
Md. July 22, 2010). Under Maryland law, Bivens actions are
subject to a three year statute of limitations. See
Arawole v. Gaye. No. CIV.A. PJM-02-167, 2002 WL
32356684. at *1 (D. Md. Feb. 5, 2002). aff'd, 46
F.App'x 206 (4th Cir. 2002). Finally, Plaintiffs legal
malpractice claim is also subject to the standard three year
statute of limitations for civil cases. See Md. Code
Ann., Cts. & Jud. Proc. §5-101.
federal law a cause of action accrues when the plaintiff
possesses sufficient facts about the harm done to him that
reasonable inquiry will reveal his cause of action."
Nasim v. Warden. Maryland House of Correction, 64
F.3d 951, 955 (4th Cir. 1995)(citing United States v.
Kubrick. 444 U.S. 111, 122-24 (1979)). For professional
malpractice claims the discovery rule applies, which states
that the statute of limitations does "not begin to run
against the plaintiff, unless he or she knows, or through the
exercise of reasonable diligence should know, of the
wrong." Berringer v. Steele, 133 Md.App. 442,
493 (2000)(internal citation omitted). The events complained
of by Plaintiff occurred at the latest in August 2011 and
there are no allegations that the knowledge of the cause of
action was fraudulently concealed, such that the tolling of
the statute would be proper. Therefore, the instant complaint
filed on September 29, 2016, ECF No. 1. is time barred.
to the extent Plaintiff seeks to vacate the Prince
George's County conviction entered against him. his claim
may not proceed. In Heck v. Humphrey,512 U.S. 477,
486-87 (1994). the Supreme Court held that claims challenging
the legality of a conviction are not cognizable in a 42
U.S.C. § 1983 action unless and until the conviction is
reversed, expunged, invalidated, or impugned and complaints
containing such claims must therefore be dismissed without
prejudice. Put another way, Plaintiffs claims for damages
cannot be entertained by this Court unless he has first
successfully challenged his Prince George's County
criminal conviction. Plaintiff fails to indicate in his
complaint that he has made efforts to vacate the conviction
through the state court system. In the event that he does so
and the state courts agree with his assessment of the events
surrounding his arrest and, as a result, overturn his