United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
10, 2018, the self-represented plaintiff, Phillip
O'Briant, filed suit under 42 U.S.C. § 1983 against
Baltimore City Circuit Court Judge Sylvester B. Cox; A.
Brockington, a Clerk of that court; and unknown "Pro Se
Clinic Attorneys" who assist self-represented litigants
for that court. In his Complaint (ECF 1), supported by
exhibits, plaintiff seeks $1.2 million in damages based on
alleged violations of his rights under the Due Process Clause
of the 5th Amendment and the Equal Protection Clause of the
14th Amendment. Id. at 5.
complains that Brockington encouraged him to seek advice from
the Pro Se Attorney Clinic before filing a complaint against
the Baltimore City Office of Child Support, which had
"falsely accused him of not making his court ordered
payments." Id. at 6. As a result of that
accusation, plaintiff claims his Maryland driver's
license was wrongly suspended as of December 2014.
complaint against the Office of Child Support, filed by
plaintiff on July 10, 2017, sought money damages for tortious
injury due to the improper suspension of driving privileges,
based on an allegedly false claim that O'Briant had
failed to pay child support. That case was dismissed, without
prejudice, by Judge Cox on January 12, 2018, due in part to
defects in obtaining service of process on the defendant
agency. See O 'Briant v. Baltimore City Office of
Child Support, No. 24-C-1700-3632 (Balto. City Cir.
Ct.), docket entry 10; ECF 1 at 8. O'Briant's motion
to alter or amend that judgment was denied by Judge Cox on
April 18, 2018. Id., docket entry 11/3.
on April 30, 2018, O'Briant filed suit against Judge Cox.
That case was dismissed on May 17, 2018. See O'Briant
v. Cox, No. 24-C-1800-2698 (Balto. City Cir. Ct.).
includes with his Complaint a motion for leave to proceed in
forma pauperis. ECF 2. The motion shall be granted. However,
the Complaint shall be dismissed.
court is mindful that the pleadings of self-represented
litigants are accorded liberal construction. See Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Therefore, a court is charged with liberally construing a
complaint filed by a pro se litigant, in order to allow for
the development of a potentially meritorious case. See
Hughes v. Rowe, 449 U.S. 5, 9 (1980). But, liberal
construction, does not mean a court can ignore a clear
failure to allege facts that set forth a cognizable claim.
See Weller v. Department of Social Services, 901
F.2d 387 (4th Cir. 1990).
O'Briant is proceeding in forma pauperis, the
Court must screen his complaint. See 28 U.S.C.
§ 1915(e)(2) (2012). District courts "shall
dismiss" a complaint filed by a self-represented
plaintiff if the action "is frivolous or
malicious," "fails to state a claim on which relief
may be granted," or "seeks monetary relief against
a defendant who is immune from such relief."
Id., § 1915(e)(2)(B).
claim against Judge Cox for decisions made in his capacity as
a judge is barred by the doctrine of judicial immunity. As
the Supreme Court said in Forrester v. White, 484
U.S. 219, 226B 27 (1988). Alf judges were personally liable
for erroneous decisions, the resulting avalanche of suits,
most of them frivolous but vexatious, would provide powerful
incentives for judges to avoid rendering decisions likely to
provoke such suits.
disapproves of Judge Cox's dismissal of his state court
actions, but provides no factual assertions indicating that
the claim would not be barred by judicial immunity. His claim
directly implicates Judge Cox's role as a judge. Such a
claim is one that is "open to correction through
ordinary mechanisms of review, which are largely free of the
harmful side-effects inevitably associated with exposing
judges to personal liability." Id. An ordinary
mechanism of review was available to plaintiff under Maryland
law. O'Briant could have sought review by the Maryland
Court of Special Appeals. See Md. Code (2013 Repl.
Vol.), § 12-301 of the Courts and Judicial Proceedings
Brockington and the attorney who reviewed plaintiffs
pleadings, O'Briant asserts that they did not indicate
there were problems with his paperwork. ECF 1 at 8. He claims
they "were aware" that he would not be able to
effectuate proper service on the State, and "acted with
malicious intent to deprive [him] of his right to due process
of law under the 5th Amendment." Id. This
contention is not borne out by the docket, which reveals that
the case was dismissed without prejudice due to
improper service. The docket also reveals other defects in
the complaint, as set forth in Judge Cox?s denial
of reconsideration, including O'Brianfs failure to give
timely notice to the State Treasurer of his tort claim
against the agency, and the State's determination that it
would not waive immunity in the matter.
Brockington nor a clinic attorney entered an appearance on
O'Briant's behalf, and any free advice or review of
his pleadings at most constitutes a State negligence claim.
Under the "well-pleaded complaint" rule, the facts
showing the existence of subject matter jurisdiction
"must be affirmatively alleged in the complaint."
Pinkley. Inc. v. City of Frederick, 191 F.3d 394,
399 (4th Cir. 1999) (citing McNutt v. Gen'l Motors
Acceptance Corp., 298 U.S. 178 (1936)). In other words,
the complaint must contain allegations establishing
jurisdiction. Miller v. Brown, 462 F.3d 312, 316
(4th Cir. 2006). "A court is to presume, therefore, that
a case lies outside its limited jurisdiction unless and until
jurisdiction has been shown to be proper." United
States v. Poole. 531 F.3d 263, 274 (4th Cir. 2008)
(citing Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994)). Moreover, the "burden of establishing
subject matter jurisdiction is on . . . the party asserting
jurisdiction." Robb Evans & Assocs., LLC v.
Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010); accord
Hertz v. Friends, 599 U.S. 77, 95 (2010);
McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.
State law claim asserted against Brockington and the unnamed
clinic attorney does not state a federal claim. But, such a
claim may be brought in this court if the requirements for
diversity jurisdiction are satisfied. Diversity jurisdiction
applies "where the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States." 28 U.S.C.
§ 1332(a)(1). CTBriant, a citizen of Maryland, does not
indicate there exists diversity of citizenship with regard to
Brockington and the ...