United States District Court, D. Maryland
PHILIP J. SWEITZER, Plaintiff
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
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
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.
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,  Sweitzer's complaint, as
amended, alleges the following facts.
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).
this time, and while recovering from his illness, Sweitzer
withdrew funds, causing an overdraft in a client escrow
account. 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
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).
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. 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
was not immediately arrested following his
indictment. 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).
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.
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).
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. 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).
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).
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.
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).
Standard of Review
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).
Motion to Dismiss
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.
Motion to Recuse
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.
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.
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.
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 ...