United States District Court, D. Maryland
RAYMOND J. BLY, Plaintiff,
CIRCUIT COURT FOR HOWARD COUNTY, MD, et al., Defendants.
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants Circuit Court for
Howard County, MD (“Circuit Court”), Hon. Lenore
Gelfman (“Judge Gelfman”), and Wayne A.
Robey's (“Clerk Robey”) Motion to Dismiss
(ECF No. 7) and Plaintiff Raymond J. Bly's Motion to
Amend My Complaint and Request Return Papers of Defendants
(“Motion to Amend”) (ECF No. 14). The Motions are
ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2018). For the reasons
set out below, the Court will deny Bly's Motion and grant
Defendants' Motion in part and deny it in part.
1987, a jury in the Circuit Court for Howard County, Maryland
convicted Bly of “criminal charges, including a felony,
predicated upon the victim of the alleged crimes being a
‘child.'” (Am. Compl. at 7, ECF No. 2). Bly
“vigorously denied” the charges. (Id.).
At some point thereafter, Defendants “J. DOEs 1-N,
” (“Doe Defendants”), acting with the
“authorization” or “acquiescence” of
Judge Gelfman or Clerk Robey, “removed the subject
[case] records from their customary and appropriate place of
storage authorized by the Defendant Court and from their
digital place within the data maintained by the Maryland
Judiciary, ” whose public portal is the Maryland
Judiciary Case Search. (Id. at 1, 7, 14).
December 2015, Bly moved for and was denied a new trial.
(Id. at 9). In 2016, he attempted to access his case
records at the Clerk's Office of the Circuit Court and at
its off-site records facility but was told that the records
did not exist. (Id. at 11). Bly never received any
notice that his records might be sealed. (Id. at 7,
14). The removal of the records interfered with Bly's
efforts to “overturn or materially undermine the
credibility of” his convictions, to question the
integrity of the state courts, and to run for Congress.
(Id. ¶¶ 24, 27).
January 31, 2018, Bly filed suit in this Court seeking to
compel personnel from the Circuit Court to release records
relating to his criminal convictions for viewing by the
public. Compl. at 1, Raymond J. Bly v. Circuit Court for
Howard County, MD (Bly I), No. GLR-18-306,
(D.Md. dismissed Feb. 7, 2018), ECF No. 1. Construing the
complaint in Bly I as a petition for writ of
mandamus, the Court denied the petition and closed the case.
See Feb. 7, 2018 Order, Bly I, ECF No. 3.
In seeking reconsideration, Bly attempted to file an amended
complaint, see Am. Compl., Bly I, ECF No.
4, which the Court directed the Clerk to docket as the
Complaint in this action, see Apr. 6, 2018 Order,
Bly I, ECF No. 10.
8, 2018, Bly filed an Amended Complaint, alleging violations
of his rights to free speech, petitioning, association,
access to judicial records, and right against retaliation,
all under the First Amendment to the U.S. Constitution;
violations of his substantive and procedural due process
rights under the Fourteenth Amendment; and the same
violations under Articles 24 and 40 of the Maryland
Declaration of Rights. (Am. Compl. at 2-5). Bly brings his
federal constitutional claims under 42 U.S.C. § 1983.
(Id. at 2). Bly seeks declaratory and injunctive
relief, as well as money damages. (Id. at 17).
September 5, 2018, Defendants filed their Motion to Dismiss.
(ECF No. 7). On September 28, 2018, Bly filed an Opposition.
(ECF No. 13). To date, the Court has no record that
Defendants filed a Reply.
October 24, 2018, Bly filed his Motion to Amend. (ECF No.
14). To date, the Court has no record Defendants filed an
Incorporation and Motion to Amend
Court first addresses Bly's attempts to amend his Amended
Amended Complaint, the operative pleading, Bly seeks to
incorporate, or “adopt by reference the entirety of
his original and amended complaints filed in” Bly
I. (Am. Compl. at 2). While Rule 10 provides that
“[a] statement in a pleading may be adopted by
reference . . . in any other pleading or motion, ”
Fed.R.Civ.P. 10(c), such incorporation by reference
“must be direct and explicit, in order to enable the
responding party to ascertain the nature and extent of the
incorporation” and avoid confusion. Hinton v. Trans
Union, LLC, 654 F.Supp.2d 440, 446 (E.D.Va. 2009)
(quoting 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1326 (3d ed.
2004)), aff'd, 382 Fed.Appx. 256 (4th Cir.
2010). This is especially important when a plaintiff seeks to
incorporate entire pleadings into an amended complaint
because “an amended pleading ordinarily supersedes the
original and renders it of no legal effect.” Young
v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir.
2001) (quoting Crysen/Montenay Energy Co. v. Shell Oil
Co., 226 F.3d 160, 162 (2d Cir. 2000)). The
Hinton court concluded that the
“plaintiff's attempts at wholesale incorporations
of his prior complaints” were “a misuse of the
Rule 10(c) incorporation privilege.” Hinton,
654 F.Supp.2d at 447. This Court has also held that a
“[p]laintiff may not point to allegations in two
separate pleadings in order to state a claim that satisfies
the requirements of Rule 8, ” and that assertions in
motion papers have “no effect” on the sufficiency
of pleadings. Wroblewski v. United States, No. DKC
08-3368, 2011 WL 1769989, at *4 (D.Md. May 9, 2011). Thus,
the Court concludes that Bly's attempt to incorporate
pleadings from another case is a misuse of the incorporation
privilege. Accordingly, the Court will not consider
allegations in the pleadings in Bly I or in
Bly's Opposition in determining whether Bly has stated a
Motion to Amend
one-sentence Motion to Amend simply seeks to identify one Doe
Defendant as “Circuit Administrative Judge Laura S
Kiessling.” (Mot. Am. at 1, ECF No. 14).
15(a)(2) provides that “[t]he court should freely give
leave [to amend a complaint] when justice so requires.”
Justice does not require permitting leave to amend when
amendment would prejudice the opposing party, the moving
party has exhibited bad faith, or amendment would be futile.
See Edell & Assocs., P.C. v. Law Offices of Peter G.
Angelos, 264 F.3d 424, 446 (4th Cir. 2001) (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999)). Leave to amend would be futile when an amended
complaint could not survive a motion to dismiss for failure
to state a claim. See U.S. ex rel. Wilson v. Kellogg
Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir.
Motion neither includes a proposed Second Amended Complaint
nor includes any facts about how Judge Kiessling was involved
in the alleged removal of his case records. It, therefore,
does not state any claim against her and would not survive a
motion to dismiss. As a result, the Court will deny Bly's
Motion to Dismiss
Standard of Review
purpose of a motion under Federal Rule of Civil Procedure
12(b)(6) is to “test[ ] the sufficiency of a complaint,
” not to “resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A
complaint fails to state a claim if it does not contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), or does not “state a claim to relief that is
plausible on its face, ” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917
F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff'd sub nom. Goss v. Bank of America, NA, 546
Fed.Appx. 165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But,
the court need not accept unsupported or conclusory factual
allegations devoid of any reference to actual events,