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Sweitzer v. McGuinn

United States District Court, D. Maryland

October 10, 2017

PHILIP J. SWEITZER, Plaintiff
v.
COLLEEN McGUINN, Esq., Senior Assistant State's Attorney, DARIO J. BROCCOLINO, Esq., State's Attorney, Howard County, STATE OF MARYLAND, Nancy K. Kopp, Treasurer, JOHN or JANE DOE GRAND JURORS 1-23, DEPARTMENT OF MARYLAND STATE POLICE, WILLIAM TALBERT, TFC, TFC JOHN DOE, JOHN DOE HOWARD COUNTY POLICE OFFICER or JOHN DOE SHERIFF'S DEPUTY #1, JOHN DOE HOWARD COUNTY POLICE OFFICER or JOHN DOE SHERIFF'S DEPUTY #2, CHARLES P. STRONG, Esq., State's Attorney, JANE DOE, Esq. Assistant State's Attorney ATTORNEY GRIEVANCE COMMISSION of MARYLAND, GLENN M. GROSSMAN, Esq., Bar Counsel, RAYMOND HEIN, Esq., Deputy Bar Counsel, MARIANNE J. LEE, Esq., Senior Assistant Bar Counsel, MARC FIEDLER, Investigator, BRIAN E. FROSH, Esq., Attorney General, RYAN DIETRICK, Esq., Assistant Attorney General, The Honorable DENNIS M. SWEENEY, THE COURT OF SPECIAL APPEALS OF MARYLAND, The Honorable MARY ELLEN BARBERA, Chief Judge, The Honorable CLAYTON GREENE, JR., The Honorable MICHELE D. HOTTEN, The Honorable ROBERT N. McDONALD, The Honorable SHIRLEY M. WATTS, The Honorable SALLY D. ADKINS, The Honorable JOSEPH M. GETTY, The Honorable KEVIN F. ARTHUR, The Honorable DEBORAH S. EYLER, The Honorable LAWRENCE RODOWSKY, THE TRUSTEES of the CLIENT PROTECTION FUND of the BAR of MARYLAND, JANET C. MOSS, Executive Director, LEO WESLEY OTTEY, JR., Esq., JAMES F. FITZGERALD, Sheriff, JOHN DOE, Deputy Sheriff, JANE DOE, Deputy Sheriff, THE CIRCUIT COURT for HOWARD COUNTY, WAYNE A. ROBEY, Clerk DEPARTMENT OF PUBLIC SAFETY and CORRECTIONAL SERVICES, STEVEN T. MOYER, Secretary, JENNIFER FRANKENBERRY, The Honorable TIMOTHY J. McCRONE, The Honorable WILLIAM V. TUCKER, The Honorable DANIEL P. DWYER, HOWARD COUNTY, MARYLAND, ALLEN H. KITTLEMAN, HOWARD COUNTY DEPARTMENT of CORRECTIONS, Jack Kavanagh, Director, JOHN or JANE DOES 1-20 Correctional Officers RICHARD W. TURNER, Ph.D., Chief Executive Officer, JOHN DOE #1, M.D., CHIEF MEDICAL OFFICER JOHN DOE #2, M.D., CONMED HEALTHCARE MANAGEMENT, INC., ALLAN TSAI, D.D.S., CLARKE F. AHLERS, Esq., Defendants

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE.

         On June 26, 2017, Plaintiff Philip J. Sweitzer, a resident of Gettysburg, Pennsylvania, filed a 185-page complaint, captioned as a civil rights action naming more than fifty Defendants, accompanied by exhibits, the full filing fee, and a civil cover sheet. (Compl., ECF No. 1). By Order dated July 6, 2017, Sweitzer was granted leave to amend his complaint in order to comply with Fed.R.Civ.P. 8(a). (ECF No. 2). Sweitzer's amended complaint, submitted August 4, 2017, which contains 27 counts and 157 pages, is now before the Court for initial review. (Am. Compl., ECF No. 5). Also pending before the Court is Sweitzer's Motion to Recuse (ECF No. 7). For reasons set forth herein, with one exception, the Court will dismiss Sweitzer's claims and deny the Motion.[1]

         I. BACKGROUND

         At its core, the amended complaint seeks compensatory and punitive damages and injunctive relief based on actions by the “Judiciary and Executive” . . . “to align their respective interests . . . to subvert and deny him due process of law to unconstitutionally procure his unlawful conviction and subsequent disbarment . . .” (Am. Compl. At 9). Federal jurisdiction over the claims is premised on the civil rights statutes, 42 U.S.C. §§ 1983 and 1985, as well as 28 U.S.C. § 1331. Sweitzer also requests this Court take supplemental jurisdiction over “related and derivative state law claims” pursuant to 28 U.S.C. § 1367. Read in conjunction with the accompanying exhibits and information gleaned from Maryland's judiciary website, [2] Sweitzer's complaint, as amended, alleges the following facts.

         Prior to November 4, 2016, Sweitzer had a license to practice law in Maryland. (Am. Compl. at 26). During 2007 and 2008, he was one of several lawyers representing a criminal defendant, Abdel Khader Diallo, in the Circuit Court for Baltimore County, Maryland. Due to a stroke, Sweitzer was unable to attend the May 9, 2009, oral argument in the Court of Appeals of Maryland. (Id. at 40-42).

         During this time, and while recovering from his illness, Sweitzer withdrew funds, causing an overdraft in a client escrow account.[3] As a result, Assistant Bar Counsel Lee initiated an inquiry on behalf of the Maryland Attorney Grievance Commission. (Id. at 43). It does not appear that Sweitzer received formal sanction based on this incident.

         In February of 2011, Sweitzer agreed to represent Dr. Allen Tsai, a dentist who had been denied benefits under a disability insurance policy. In December of 2011, Tsai asked Sweitzer to represent him in a copyright infringement lawsuit brought against Tsai by a film production company. (Id. at 45-47). Tsai also asked Sweitzer to represent him in a case against Dr. Robert Gerwin for abandoning him as a patient and as his medical expert in the insurance claim. Sweitzer indicates Tsai prevailed on his insurance claim and, on May 21, 2012, met with Sweitzer and turned over the entire settlement proceeds, amounting to $54, 000.00, to Sweitzer for both the insurance claim and work performed to date in the copyright infringement action. (Id. at 47-48). On June 1, 2012, Sweitzer deposited the settlement proceeds into an IOLTA account at a Panama City, Florida branch of PNC Bank, N.A. (Id. at 49).

         In late September, 2012, Tsai wrote Sweitzer to demand a refund of the insurance proceeds. On October 5, 2012, Tsai further requested Sweitzer continue to represent him in the copyright matter, but on full contingency. The next day, October 6, 2012, Sweitzer offered to refund all fee and expense proceeds in both the copyright case and the Gerwin matter. (Id. at 51-52). By that time, however, Tsai had already complained to the Howard County, Maryland State's Attorney that Sweitzer had committed a theft.[4] On February 13, 2013, a Howard County grand jury returned an indictment for theft over $10, 000.00. Sweitzer states that Assistant Bar Counsel Lee appeared before the grand jury. (Id. at 52).

         Sweitzer was not immediately arrested following his indictment.[5] On March 19, 2013, while driving from BWI Airport to Hagerstown, Maryland, Sweitzer was pulled over by Maryland State Trooper First Class Talbert, and charged with several traffic violations. The Howard County Circuit Court warrant was discovered and Sweitzer was taken into custody and transported to the Howard County Detention Center. He was released on bond the next day. (Id. at 53-54).

         Sweitzer was found guilty on April 28, 2014, and was sentenced to five years of incarceration, all but four years suspended, with two years of supervised probation upon release. See Maryland v. Sweitzer, Case No. 13-K-13053059 (Cir. Ct. How. Co.), http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis. He was remanded to the custody of the Howard County Department of Corrections, where he remained from October 7, 2013 until June 25, 2014. He alleges he was denied proper medical care and subjected to unconstitutional conditions of confinement during this time. (Am. Compl. at 61-63).

         Immediately upon release from his Howard County sentence, Sweitzer was transported to the District Court for Washington County where, on June 26, 2014, his traffic violations were nolle prossed.[6] Sweitzer asserts that this transfer would not have been necessary had he received notice of the hearing date for the traffic violations while incarcerated. (Id. at 63-64).

         On May 8, 2014, the Circuit Court for Howard County entered a civil judgment from the criminal restitution order that resulted from Sweitzer's theft conviction. See Tsai v. Sweitzer, Case No. 13-C-55-076156 (Cir. Ct. How. Co.). The Client Protection Fund later sought enforcement of the judgment, beginning on or about November 24, 2014. (Am. Compl. at 65).

         Sweitzer was suspended from legal practice on September 22, 2014, on Bar Counsel's Petition for Disciplinary Action, pursuant to an order by the Honorable Mary Ellen Barbera, Chief Judge of the Court of Appeals of Maryland. (Id. at 66). Sweitzer alleges that his appeal brief attacking his suspension disappeared from the Office of the Clerk of the appellate court, and should be construed as an attempt by court personnel to “intentionally manipulate[ed] the appeal” process. (Id. at 67). Sweitzer's motion to terminate the petition for disciplinary action pending appeal was denied on May 21, 2015 by the Court of Appeals, and on May 26, 2015, Court of Special Appeals Judge Arthur of the affirmed the trial court and denied Sweitzer relief. Further review was denied by the Court of Appeals on August 12, 2015. (Id. at 68-69). Sweitzer outlines a multiplicity of additional claims of procedural defects in the handling of his disciplinary proceedings that ended in termination of his law license, including contempt proceedings filed in Tsai v. Sweitzer. (Id. at 74-78).

         While Sweitzer's petition for writ of certiorari attacking the theft conviction was pending in the United States Supreme Court, on July 15, 2015, the Department of Parole and Probation charged Sweitzer with a violation of probation for failure to satisfy the obligation for restitution. Sweitzer pleads that the Client Protection Fund was already enforcing this obligation. (Id. at 70). He states that his motions to terminate or modify probation were subsequently denied, and his motion to vacate his conviction was denied by the Circuit Court of Howard County on April 14, 2017. (Id. at 74-78).

         II. DISCUSSION

         A. Standard of Review

         1. Initial Review

         Sweitzer has paid the filing fee. Nonetheless, this Court has broad, inherent power to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith. See, e.g., Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (district courts have the authority to dismiss frivolous complaint sua sponte, notwithstanding the payment of the filing fee); Crowley Cutlery Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988) (federal district judge has authority to dismiss a frivolous suit on her own initiative).

         2. Motion to Dismiss

         Although a complaint need not contain detailed allegations, the facts alleged must be enough to raise a right to relief above the speculative level and require “more than labels and conclusions, ” as “‘courts are not bound to accept as true a legal conclusion couched as a factual allegation.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 561. Further, under Fed.R.Civ.P. 8(d)(1), each allegation in the complaint “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “Threadbare recitals of the elements of a cause of action, supported by mere statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Therefore, this Court has the discretion to dismiss a case at any time, notwithstanding the payment of the filing fee or any portion thereof, if it determines that the action is factually or legally frivolous.

         B. Analysis

         1. Motion to Recuse

         28 U.S.C. § 455(a) provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The judge's purported “bias or prejudice must, as a general matter, stem from ‘a source outside the judicial proceeding at hand' in order to disqualify a judge.” Belue v. Leventhal, 640 F.3d 567, 572 (4th Cir. 2011) (concluding that judge's opinions formed during the proceedings did not necessitate the judge's disqualification) (quoting Liteky v. United States, 510 U.S. 540, 545, 551 (1994)). Thus, a judge must recuse himself if an extrajudicial source provides a reasonable factual basis for calling the judge's impartiality into question. In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). “The inquiry is whether a reasonable person would have a reasonable basis for questioning the judge's impartiality, not whether the judge is in fact impartial.” Id.; see Liteky, 510 U.S. at 548 (“[W]hat matters is not the reality of bias or prejudice but its appearance.”). Conversely, if a judge's “familiarity with the facts of a case stem from [the judge's] judicial conduct in presiding over earlier proceedings, ” the judge typically need not recuse himself or herself, even if the judge has formed an opinion about the case, In re Beard, 811 F.2d at 827, unless the judge's stated opinion “display[s] a deep-seated favoritism or antagonism that would make fair judgment impossible.” See Liteky, 510 U.S. at 551, 555; Belue, 640 F.3d at 572.

         A judge also is required to disqualify himself if the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding” or if the judge is “likely to be a material witness in the proceeding.” 28 U.S.C. § 455(b)(1), (5)(iv). As with § 455(a), the judge's knowledge referenced in § 455(b)(1) must “stem from a ‘source outside the judicial proceeding at hand' in order to disqualify [the] judge.” Belue, 640 F.3d at 572 (quoting Liteky, 510 U.S. at 545). Unlike § 455(a), § 455(b)(1) pertains to knowledge that is both actual and personal. See Liteky, 510 U.S. at 548.

         In his Motion, Sweitzer alleges this Court exhibited bias in ordering him to amend his Complaint pursuant to Rule 8, and withholding issuance of summons pending consideration of the initial pleadings. Sweitzer argues that because the named Defendants are judicial and governmental employees, the Court's decision requiring Sweitzer to amend the Complaint amounts to “advocating for the defense, by postponing the issuance of process.” (Mot. Recuse at 3) (emphasis omitted). This argument ignores this Court's broad, inherent power to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith. See Fitzgerald, 221 F.3d at 363-64. In addition, Sweitzer provides no support for his belief that this Court harbors bias against him based on the nature of his claims, and thus, he provides no basis for recusal. Accordingly, the Court will deny the Motion.

         2.Immunity

         As a threshold matter, the Court concludes that Sweitzer's claims against many of the named Defendants cannot proceed for lack of subject matter jurisdiction under Rule ...


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