United States District Court, D. Maryland
L. Hollander United States District Judge.
civil case is rooted in the prosecution of Jeffrey Cohen, who
4, 2016, Cohen filed a Complaint For Declaratory Relief,
pursuant to 28 U.S.C. § 1319 and Fed.R.Civ.P. 57. ECF 1.
He sought declaratory and injunctive relief against the
prosecutors and other government law enforcement personnel
responsible for the execution of search and seizure warrants
in regard to his criminal case. Cohen claimed, inter
alia, that the warrants resulted in the confiscation of
assets that Cohen argues precluded him from obtaining counsel
of his choosing. Id.
Memorandum (ECF 35) and Order (ECF 36) of August 7, 2018, the
Court dismissed the suit. Soon after, on August 13, 2018, the
Clerk docketed an Amended Complaint. ECF 37.
October 15, 2018, Cohen filed a “Motion For Relief From
Order” (ECF 44, “Motion”), pursuant to Rule
60(b), seeking to vacate ECF 36. He claims that he received
the Clerk's “Roseboro Notification” on July
25, 2018, and wrote to Judge William Nickerson, to whom the
case was then assigned, seeking an extension. ECF 44. He also
alleges that he mailed the Amended Complaint on August 5,
2018, i.e., just before the Court issued ECF 35 and
ECF 36. Id.
Memorandum resolves the Rule 60 motion. ECF 44. No. hearing
is necessary to do so. For the reasons that follow, I shall
deny the Motion.
is presently incarcerated at the Federal Correctional
Institution-Hazelton. On June 5, 2015, Cohen entered a plea
of guilty to wire fraud, aggravated identity theft, false
statements, and obstruction of justice (threatening an
attorney). ECF 389. On December 10, 2015, after several
sentencing hearings, Judge William D. Quarles, Jr. sentenced
Cohen to a 444-month term of imprisonment. ECF 590; ECF 594
(Judgment); ECF 595 (Statement of Reasons). See United
States v. Cohen, Criminal No. GLR-14-0310 (D.
Md.). The conviction and sentence were upheld on
appeal on April 25, 2018. United States v. Cohen,
888 F.3d 667 (4th Cir. 2018). The mandate issued on May 17,
2018. Id., ECF 684.
Cohen's criminal appeal was pending, he filed the
underlying case, which was initially assigned to Judge
Nickerson. In the civil case, Cohen sued t h e two
federal prosecutors in the criminal case, Harry M. Gruber and
Joyce McDonald, as well then-Maryland United States Attorney
Rod Rosenstein, postal inspector Kalliopi Tserkis-Mullins,
and FBI Agent Jason Bender. Cohen alleged numerous instances
of investigatory and prosecutorial misconduct regarding
search and seizure warrants resulting in the confiscation of
assets, including property and bank accounts, which Cohen
argued precluded him from obtaining counsel of his choosing.
ECF 1 at 5-15.
Nickerson denied Cohen's motion for injunctive relief on
October 19, 2016, ECF 19, and entered a stay pending
resolution of the criminal case. ECF 25. Thereafter, Cohen
noted an interlocutory appeal as to several rulings of Judge
Nickerson. In a per curiam opinion issued on June 8, 2017,
the Fourth Circuit upheld the rulings as to the stay; the
denial of injunctive relief; and the denial of a motion for
reconsideration. ECF 30. And, it dismissed the claim denying
Cohen's motion for counsel. The mandate followed on July
31, 2017. ECF 31.
September 28, 2017, following Judge Nickerson's
retirement, the underlying case was reassigned to the
Honorable J. Frederick Motz. On July 2, 2018, defendants
moved to lift the stay and filed a motion to dismiss for lack
of jurisdiction and for failure to state a claim. ECF 32.
20, 2018, the Clerk of Court issued correspondence to Cohen
regarding the government's filing of the motion to
dismiss. ECF 34. Pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), the Clerk advised Cohen of his
right to file a response and of the consequences of failing
to do so. Id. The letter, mailed to Cohen at his
Bruceton Mills, West Virginia prison address, was not
returned, and there is no indication that Cohen did not
receive it. Indeed, in ECF 44, Cohen acknowledges that he
received the notice on July 25, 2018.
Roseboro correspondence also reflects that the case
was redesignated as Case “JFM-16-1346.” But, in
his Motion, Cohen states that on July 25, 2018, he wrote to
Judge Nickerson (instead of Judge Motz), asking for a 30-day
extension to respond to the government's dispositive
motion, because he could to access his legal files due to a
prison lock-down. ECF 44, ¶ 2. There is no record of
such an extension on the docket.
the case was reassigned from Judge Motz to me. My review of
the docket did not reveal an extension request from Cohen or
an opposition to the government's dispositive motion. For
the reasons stated in my Memorandum dated August 7, 2018 (ECF