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Oliver v. Department of Public Safety and Correctional Services

United States District Court, D. Maryland

November 28, 2018




         At issue here is the plaintiff Lee Oliver's motion for leave to amend his complaint, as well as related motions to strike and to dismiss his original complaint. Because his claims are futile, even as delineated in his proposed amended complaint, Mr. Oliver's motion for leave to amend his complaint will be denied and this case will be dismissed.


         In 1995, a jury convicted Mr. Oliver of first and second degree rape in the Circuit Court for Prince George's County. (Am. Compl. ¶ 26.) His conviction was overturned on appeal. (Am. Compl. ¶ 27.) In 1998, Mr. Oliver entered an Alford plea to rape in the second degree and received a 5-year sentence. (Am. Compl. ¶ 28.) In July 1999, he was released from custody and simultaneously was required to register as a sex offender. (Am. Compl. ¶ 29-30.) He objected to the sex offender registration requirement. (Am. Compl. ¶ 29.) From July 1999 until May 2015, Mr. Oliver was required to re-register as a sex offender, at regular intervals, with state and local authorities, and remained listed on the Maryland Sex Offender Registry (hereafter, "MSOR"). . (Am. Compl. ¶ 26-70.) In the interim, the specific requirements and purported duration of his registration changed numerous times with various retroactive amendments to the Maryland Sex Offender Registration Act (hereafter "the Act").

         The Act was first promulgated on October 1, 1995, and applied only to Child Sexual Offenders. (Am. Compl. ¶ 73-74.) On October 1, 1997, an amendment to the Act broadened the Act's applicability to include "Sexually Violent Offenders]" and "Sexually Violent Predator[s]." (Am. Compl. ¶ 79.) Following Mr. Oliver's release and registration in 1999, a new amendment to the Act required individuals who, like Mr. Oliver, were convicted under Article 27 § 464A to register for life. (ECF 10-1 at p. 4.) In 2010, additional amendments instituted a tiered structure whereby Mr. Oliver, as a "tier III sex offender," was required to register in person every three months for life, (Id.)

         In 2013, the Maryland Court of Appeals concluded that the Act's retroactive registration requirement violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 568 (2013) ("Doe F). The decision was based purely on Maryland law, and the court noted its own divergence from the narrower prohibitions dictated by the federal constitution's Ex Post Facto Clause. In 2014, the Maryland Court of Appeals held further that, despite registration obligations imposed by 42 U.S.C. § 16901 et seq., the federal Sex Offender Registration and Notification Act ("SORNA"), Maryland courts have the ability to instruct the State to remove a registrant's information when its inclusion would violate the state constitution under the prescriptions of Doe I. Dep't of Pub. Safety & Corr. Servs. v. Doe, 439 Md. 201, 207 (2014) ("Doe II). On April 15, 2015, in the wake of Doe II, Mr. Oliver filed a complaint for declaratory judgment. (See Am. Mem. P. & A. Supp. Def. Montgomery Co., MD's Mot. Dismiss Pl's Compl., ECF 9-1 at p. 10.) MSOR staff reviewed the facts and timing of Mr. Oliver's case and sentence, and determined that he was not required to register as a sex offender in Maryland. (Am. Compl. ¶ 71; State Defs' Mot. to Dismiss, ECF 10-1 at p. 5.) He was delisted on or about May 28, 2015. (Am. Compl. ¶ 71.)

         On February 1, 2018, Mr. Oliver filed suit against the Department of Public Safety and Correctional Services, .the Sexual Offender Advisory Board, Montgomery County, and various employees working for these agencies, alleging that his rights under the United States Constitution, the Maryland Declaration of Rights, and Maryland common law were violated by the initial and continued requirement that he register as a sex offender. (Compl., ECF 1.) Both County and State defendants filed motions to dismiss-on March 26, 2018, and on April 9, 2018, respectively. (ECF 8; ECF 10.) Mr. Oliver did not respond to either motion to dismiss. On May 8, 2018, Mr. Oliver instead filed an amended complaint, adding as defendants four former Secretaries of the Department and three members of the (Montgomery Police Department. (Am. Compl., ECF, 12.) In this amended complaint, Mr. Oliver abandoned his claims against the Department and the Sexual Offender Advisory Board, converted his claims against employees to individual capacity claims, but maintained his claims against Montgomery County. Id. Additionally, he added three claims brought under § 1983. Id. In response, both the State and County defendants filed motions to strike the amended complaint. (ECF 13; ECF 14.) Mr. Oliver again filed no response. On June 29, 2018, Mr. Oliver filed a Motion for Leave to Amend. (ECF 15.) Both defendants filed responses opposing the plaintiffs motion. (ECF. 16; ECF 17.) Mr. Oliver replied, (ECF 19), and the issues are now ready for ruling.


         I. Standard of Review

         Rule 15 of the Federal Rules of Civil Procedure governs a plaintiff s prerogative to amend her complaint. Plaintiffs can amend as a matter of course "if the revisions are offered within 21 days of service.[1] Fed.R.Civ.P. 15(a)(1)(A) They can amend with the opposing party's written consent. Fed.R.Civ.P. 15(a)(2). Third, and relevant here, a plaintiff also may amend with the court's leave. Id. The rule specifies that "[t]he court should freely give leave when justice so requires." Id. The Fourth" Circuit has noted that "[t]his liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). Granting leave to amend, therefore, is the default under Rule 15. In Laber, the Fourth Circuit, sitting en banc, explained: "[w]e have interpreted Rule 15(a) to provide that "leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." Id. (internal quotation marks omitted). Prejudice is the weightiest factor, the absence thereof, "though not alone determinative, will normally warrant granting leave to amend." Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980). But a movant's undue delay or dilatory motive may also be considered. Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 553 (2010). Here, the defendants primarily argue that the proposed amendments would be futile.

         "Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards: A district court may deny leave if amending the complaint would be futile-that is, if the proposed amended complaint fails to satisfy the requirements of the federal rules." Katyle v. Perm Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) (quoting United States ex rel. Wilson v. Kellogg Brown &Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (internal quotation marks omitted). An amendment is futile when the proposed amended complaint does not state a claim under Fed.R.Civ.P. 12(b)(6). "Where the statute of limitations bars a cause of action, amendment may be futile and therefore can be denied." United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).

         II. Discussion

         The defendants in this case assert that granting Mr. Oliver leave to amend would be a futile exercise because his complaint, as amended, fails to state a viable claim. Specifically, they argue, as a threshold matter, that his claims are barred by the applicable statute of limitations and are thus untimely. Second, they contend that he fails to plead facts sufficient to state a claim under Rule 12(b)(6). Third, they put forth affirmative defenses-including qualified- contending that even if the complaint contains facts sufficient to support a claim, they are immunized from suit. Taken together, the second and third grounds demonstrate the proposed . amended complaint's futility.

         A. Time Bar

         The court is ill-equipped to rule on the plaintiffs continuing violation theory without more facts, and, ultimately, there is no need to do so. The timing dispute here is over the date of accrual. The defendants argue that all claims brought by Mr. Oliver are subject to a three-year deadline. (ECF 10-1 at pp. 6-7; ECF 9-1 at pp. 19-20.) He does not dispute this contention; rather, he asserts that the continuing violation exception or the doctrine of equitable tolling salvage his belated filing. (ECF 19 at p. 12.) Mr. Oliver was first required to register as a sex offender in July 1999. (Am. Compl. ¶¶ 29-30.) But because he was sentenced in 1995, when the Maryland Sex Offender Registration Act only applied to "Child Sexual Offender[s]," and the victim was over 18 years of age, he objected. (Am. Compl. ¶ 74.) Mr. Oliver was required to reregister, at regular intervals, through May 5, 2015. (Am. Compl. ¶ 99.) On May 23, 2015, MSOR staff determined that Mr. Oliver was no longer required to register. (Am. Compl. ¶ 100.) On May 28, 2015, he was informed that he was no longer required to remain registered.[2] (Am. Compl. ¶ 71.) This case was filed on February 1, 2018. (See Compl., ECF 1.)

         There are not, in the record at present, "all facts necessary" to dispose of the plaintiffs continuing violation theory. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). Denying the plaintiff leave to amend, therefore, would not be appropriate on statute of limitations grounds. "A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Nat'l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991). The Circuit has "found a continuing violation where regulations continued to be applied to persons within the statutory limitations period ... but not where any harm to the plaintiff stemmed only from the initial regulatory prohibition." Id., at 1167. The same rule applies under Maryland law. See Bacon v. Arey, 203 Md.App. 606, 655 (2012) (explaining that "[continuing violations that qualify under this theory are continuing unlawful acts, for example, a monthly over-charge of rent, not merely the continuing effects of a single earlier act").

         Here, the alleged injury occurred in 1999 when the plaintiff initially was required to register-but it is also alleged to have occurred on the repeated occasions when the defendants made affirmative representations through May 2015, maintaining that Mr. Oliver was required to re-register-representations that persisted despite multiple changes to the Act, (Am. Compl. ¶¶ 73-89), and to its retroactivity requirements. Doe I, 430 Md. at 545-46. Thus, the defendants' contention that plaintiff knew the facts necessary to pursue his claim on July 22, 1999, (ECF 17 at p. 2), is not necessarily true. Not only were the Act's alterations likely to interfere with the plaintiffs ability to know if and when to sue, but it also was unclear, during the years the plaintiff was registered, whether his registration was even unlawful. While he objected to registration, it was not until Doe I that Maryland's sex offender registration law was held to violate Article 17 of the Maryland Declaration of Rights, and it has never been held to violate the federal constitution's ex post facto prohibition. See Doe I, 430 Md. at 547. Because of the iterative nature, of the alleged violation and the numerous changes to the act, the alleged injury is more like the ...

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