United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
Cohen, the self represented plaintiff, filed a
“Complaint For Equitable Relief” against Harry
Mason Gruber, in his capacity as Assistant United States
Attorney, and Cam Costello, in his capacity as Special Agent,
United States Department of Treasury. ECF 1. Cohen, a federal
prisoner, appended to the suit his own Declaration (ECF 1-1)
and several other exhibits. He subsequently filed a
“First Amended Complaint For Equitable Relief, ”
without the exhibits, naming only Gruber as a defendant. ECF
predicated on the Administrative Procedure Act, 5 U.S.C.
§§ 7-01 et seq., and the Declaratory
Judgment Act, 28 U.S.C. § 2201. It is rooted in the
criminal prosecution of Cohen in this court in the case of
United States v. Cohen, GLR-14-0310. Cohen
“seeks injunctive relief to restrict public officers to
their lawful and ethical obligations.” ECF 21 at 1,
suit is best understood in conjunction with the history of
the underlying insurance fraud case, United States v.
Cohen, GLR-14-0310. Cohen, who represented himself
during some of the criminal proceedings, proceeded to trial
in June 2014. During the trial, he decided to plead guilty.
On June 5, 2015, Cohen entered pleas of guilty to charges of
wire fraud, aggravated identity theft, making false
statements to insurance regulators, and obstruction of
justice. See ECF 389; ECF 385 (Plea Agreement).
Cohen subsequently sought to withdraw his guilty plea (ECF
408), which was denied. ECF 523; ECF 526.
December 14, 2015, Judge Quarles sentenced Cohen to a total
term of imprisonment of 444 months. ECF 594. The convictions
and sentence were affirmed on appeal. See United States
v. Cohen, 888 F.3d 667 (4th Cir. 2018). Since then,
Cohen has feverishly sought to challenge his criminal
convictions and sentence. Indeed, this suit constitutes
Cohen's tenth civil attack on his criminal prosecution.
See Cohen v. Rosenstein, et al., Civil Action No.
14-03726 (D. Md.); Cohen v. Rosenstein, et al.,
Civil Action No. 14-3996 (D. Md.); Cohen v. Rosenstein,
et al., Civil Action No. 15-263 (D. Md.); Cohen v.
United States, Civil Action No. 15-1006 (D. Md.);
Cohen v. Hurson, et al., Civil Action No. 15-986 (D.
Md.); Cohen v. Rosenstein, et al., Civil Action No.
16-1346 (D. Md.); Cohen v. Quarles, Civil Action No.
16-2943 (D. Md.); Cohen v. Gruber, et al., Civil
Action No. 17-216 (D. Md.); Cohen v. Gruber, et al.,
Civil Action No. 16-172 (N.D. W.Va.); and In re: Jeffrey
Brian Cohen, GLR-14-0310 (D. Md.).
case, plaintiff alleges that Gruber misrepresented to the
court that Cohen's insurance company “fraudulently
denied coverage to insureds.” ECF 21, ¶ 26;
see also GLR-14-0310, ECF 627. According to Cohen,
the alleged misrepresentations violated the Department of
Justice's ethics regulations. ECF 21, ¶¶ 6-12.
and Costello moved to dismiss the original Complaint. ECF
After Cohen amended his suit, Gruber filed a motion to
dismiss the Amended Complaint (ECF 23), supported by a
memorandum (ECF 23-1) (collectively, the
“Motion”). He argues, inter alia, that
“Cohen cannot use a civil action to collaterally attack
his criminal conviction or the rulings made in his criminal
case, and neither the Declaratory Judgement Act nor the
[Administrative Procedure Act] provide for a cause of action
under these facts.” ECF 23-1 at 2.
opposes the Motion. ECF 27. The opposition includes a renewed
request for appointment of counsel. Gruber replied. ECF 29.
has also filed a motion for preliminary injunction (ECF 22);
a supplement to his Amended Complaint (ECF 26); a motion to
amend his amended complaint (ECF 32); and a motion for
sanctions. ECF 33. In an Order of April 25, 2019 (ECF 35),
the court denied ECF 22, ECF 32, and ECF 33.
hearing is necessary to resolve the Motion. Local Rule 105.6.
For the reasons that follow, the motion to dismiss filed by
Gruber and Costello (ECF 17) shall be denied as moot; I shall
deny Cohen's First Supplemental Complaint for Equitable
Relief (ECF 26), without prejudice; I shall deny Cohen's
renewed request for counsel (ECF 27); and I shall grant
Gruber's Motion (ECF 23), thereby dismissing the Amended
Factual and Procedural Background
was president and chairman of an entity named Indemnity
Insurance Corporation RRG, and had controlled its
predecessor, Indemnity Insurance Corporation of DC, RRG
(collectively “IIC”). IIC marketed and sold
general liability and other types of insurance to individuals
and businesses in the entertainment industry and was required
to submit quarterly and yearly financial statements to
insurance regulators. As noted by the appellate court,
insurance regulators are responsible for protecting
policyholders and the public through their oversight of the
insurance industry and by making certain that insurers such
as IIC are able to perform their coverage obligations.
more than five years, Cohen engaged in a scheme to defraud
IIC policyholders and the public by misrepresenting the
financial status of IIC, creating false and fraudulent
financial documents, including bank statements, letters of
credit, reinsurance documents, financial statements, and
account balances, and by sending misleading and fraudulent
representations to auditing firms and others seeking and
securing favorable opinions on the financial standing of IIC.
Cohen then touted IIC's false financial standing and
inflated ratings to current and potential policyholders and,
as a result of the scheme, received more than $100, 000, 000
in insurance premiums paid to IIC.
24, 2014, Cohen was indicted by a federal grand jury in
Baltimore. During the investigation, federal agents
discovered that Cohen had purchased such items as a
long-range tactical rifle, ammunition, and a night vision
device; had researched homemade bombs; purchased ammonium
nitrate; and made audio recordings about plans to attack
public officials. As a result, Cohen has been in federal
custody since his arrest in June 2014.
third and final superseding indictment, Cohen was charged
with wire transmission of false and misleading communications
in furtherance of his fraud scheme and of fraudulently using
the identities of other persons to lend credibility to false
financial documents. As noted by the Fourth Circuit,
“[t]o conceal the actual financial condition of IIC,
Cohen presented fraudulent financial statements to insurance
regulators in both Delaware and the District of
Columbia.” Cohen, 888 F.3d at 672. And,
“[a]s his fraud scheme began to unravel, Cohen
threatened witnesses in an endeavor to obstruct their
communications of his wrongdoing to the authorities.”
Id. The indictment “exposed Cohen to the
forfeiture of more than $100, 000, 000.” Id.
case, Cohen seeks injunctive relief under the Declaratory
Judgment Act, 28 U.S.C. § 2201, and the Administrative
Procedure Act, 5 U.S.C. § 701 et seq.
(“APA”). He alleges that Gruber, the prosecutor,
made misrepresentations in Cohen's criminal case about
the losses caused by Cohen's crimes. Cohen attached a
“Declaration” to his original Complaint,
presenting his version of the facts of the criminal case. ECF
1-6 (Decl. of Cohen).
relying on Cohen's version of facts as set forth in his
Declaration, Cohen asks this court to conclude that Cohen is
guilty of a limited number of crimes to which he pleaded
guilty (and which he believed would carry a potential prison
term of less than six months), but that his criminal
culpability does not extend to the large amount of losses
claimed by the government and as set forth in his Presentence
Report. And, he maintains that Gruber deliberately
misrepresented the losses, which led to his
disproportionately long sentence.
indicated, Gruber and Costello moved to dismiss the original
Complaint. ECF 17. Cohen did not oppose the motion. Instead,
he filed a Motion for Preliminary Injunction (ECF 22) and an
Amended Complaint, in which he did not name Costello. ECF 21;
ECF 21-1. Thereafter, Gruber moved to dismiss the Amended
Complaint (ECF 23) and, on February 19, 2019, Cohen filed an
opposition. ECF 27.
March 11, 2019, Cohen moved to supplement his Amended
Complaint to add as defendants Maryland United States
Attorney Robert K. Hur and Assistant United States Attorney
Joyce K. McDonald. See ECF 26; ECF 31. And, on March 18,
2019, he moved for leave to file a second amended complaint.
supplemental pleading, Cohen alleged that Hur and McDonald,
together with Gruber, violated the APA and the Declaratory
Judgment Act through false court submissions filed in
connection with Cohen's motion to vacate his convictions
and sentences. ECF 26. The motion to vacate, filed in
Cohen v. United States, Civil Action GLR-18-2661 (D.
Md.), is pending before another judge of this Court. See
Id. (ECF 685, ECF 711, ECF 738). In this case,
additional statements by the named prosecutors in written
responses to Cohen's motion to vacate, and alleged to be
untrue, were raised in Cohen's “First Supplemental
Complaint for Equitable Relief.” ECF 31.
Amendment of Pleadings Pursuant to Federal Rule of Civil
Procedure 15(a), “[a] party may amend its pleading once
as a matter of course within 21 days after serving it, or if
the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). But, Rule 15
provides that “[t]he court should freely give leave
when justice so requires.” Id.
the proposed amendment to the complaint appears to be a
futility, the court has discretion to deny leave to amend.
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. Penn Nat. Gaming,
Inc., 637 F.3d 462, 471 (4th Cir. 2011) (citing
United States ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008)).
leave to amend should be freely given, leave to amend may
also be denied where the proposed amendment would be
prejudicial to the opposing party or the moving party has
acted in bad faith. See Equal Rights Ctr. v. Niles Bolton
Assoc., 602 F.3d 597, 603 (4th Cir. 2010). A proposed
amendment is prejudicial to the opposing party if it is
belated and would change the nature of the litigation.
Id. at 604; see also Deasy v. Hill, 833
F.2d 38, 42 (4th Cir. 1987). Furthermore, the court may not
address new claims raised in opposition to a dispositive
motion, because it is not an appropriate vehicle for amending
the complaint. See Whitten v. Apria Healthcare Grp.,
Inc., No. PWG-14-3193, 2015 WL 2227928, at *7 (D. Md.
May 11, 2015).
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) (citing
6 Charles Alan Wright, Arthur Miller & Mary Kay Kane,
Federal Practice & Procedure § 1476 (2d ed.
1990)) (“A pleading that has been amended . . .
supersedes the pleading it modifies . . .”).
Cohen's Amended Complaint (ECF 21), which alleges
prosecutorial overreach during sentencing, was not filed
within the time-frame permitted under Rule 15(a). Defendants,
however, appear to have waived any procedural irregularity
regarding the amendment by filing a second motion to ...