United States District Court, D. Maryland
CATHERINE C. BLAKE, UNITED STATES DISTRICT JUDGE
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.
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").
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,
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.)
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.
Standard of Review
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. 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
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).
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
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. (Am. Compl. ¶ 71.) This case was
filed on February 1, 2018. (See Compl., ECF 1.)
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").
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 ...