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Bly v. Circuit Court for Howard County

United States District Court, D. Maryland

June 26, 2019

RAYMOND J. BLY, Plaintiff,



         THIS 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).[1] 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.

         I. BACKGROUND[2]

         In 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).

         In 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).

         On 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.

         On May 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).[3] 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).

         On 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.

         On October 24, 2018, Bly filed his Motion to Amend. (ECF No. 14). To date, the Court has no record Defendants filed an Opposition.


         A. Incorporation and Motion to Amend

         The Court first addresses Bly's attempts to amend his Amended Complaint.

         1. Incorporation

         In his 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 claim here.

         2. Motion to Amend

         Bly's 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).

         Rule 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. 2008).

         Bly's 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.

         B. Motion to Dismiss

         1. Standard of Review

         The 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).

         In 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, Unite ...

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