United States District Court, D. Maryland
Xinis United States District Judge
plaintiff, Graham Harry Schiff, an inmate confined at the
Montgomery County Correctional Facility in Boyds, Maryland,
alleges that Assistant State's Attorney, Katherine Getty,
filed a peace order against him based on knowingly false
information. Schiff also filed a Motion for Leave to Proceed
in Forma Pauperis (ECF No. 1), which the Court grants.
April 25, 2017, Schiff was convicted in the Circuit Court for
Montgomery County, Maryland, of stalking and harassment.
See Case 131537C. The Circuit Court sentenced Schiff
to 90 days' imprisonment on the harassment offense, and
five years' imprisonment, with all but two years'
suspended on the stalking offense, followed by two years'
supervised probation. On September 26, 2019, Schiff was
charged with new offenses of stalking, failure to comply with
a lawful peace order, and harassment. Those charges are still
matter, the Complaint alleges that Assistant State's
Attorney Getty swore out a peace order based on knowingly
false information. The Complaint more particularly avers that
Getty had previously prosecuted Schiff and thereafter sought
to obtain a peace order against Schiff based on emails Schiff
had sent to county police and Getty. ECF No. 1 at p. 3. The
Complaint contends that the emails never mentioned Getty by
name but rather discussed “a fiction doll
‘State's Attorney Barbie.'” As a result
of the supposed false peace order, Schiff was arrested and
ordered to undergo expensive mental health and substance
abuse treatment. Schiff remains in constant fear that Getty
will “fabricate” additional civil or criminal
actions against him. Id. at p. 4. As relief, he asks
this court to nullify the peace order, bring criminal charges
against Getty and reimburse him for expenses. Id. at
forma pauperis statute permits an indigent litigant to
commence an action in this court without prepaying the filing
fee. 28 U.S.C. § 1915(a)(1). To prevent possible abuses
of this privilege, the statute requires dismissal of any
claim that is frivolous, malicious, or fails to state a claim
on which relief may be granted. 28 U.S.C.
§1915(e)(2)(B)(i) and (ii). Although the Court must
construe liberally the pleadings of self-represented
litigants, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), liberal construction does not mean that a court can
ignore a clear failure in the pleadings to allege facts which
set forth a cognizable claim. See Weller v. Dep't of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990);
see also Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985) (stating that a district court may not
“conjure up questions never squarely presented”).
Court begins by recognizing that Schiff fails to identify a
federal constitutional provision or statute, or any other
authority under which he may proceed in federal court. Schiff
appears to fault Getty, as an Assistant States Attorney, for
her role in prosecuting Schiff to include obtaining a peace
order against him. In this respect, Getty enjoys immunity for
suits arising from actions taken as a prosecutor in
determining whether, when, and how to prosecute an
individual. See Imbler v. Pachtman, 424 U.S. 409,
422-23 (1976); see also Kalina v. Fletcher, 522 U.S.
118, 127 (1997); Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993); Nero v. Mosby, 890 F.3d 106, 118
(4th Cir. 2018); Springmen v. Williams, 122 F.3d211
(4th Cir. 1997). Accordingly, accepting the factual
allegations as true and most favorably to Schiff, Getty is
immune from suit because the acts as described in the
Complaint fall within her prosecutorial function. See
Lyles v. Sparks, 79 F.3d 372, 376-77 (4th Cir. 1996).
Schiff seeks relief that this Court cannot provide. First,
with regard to bringing criminal charges against Getty,
Schiff, as a private citizen, cannot demand that such charges
be lodged. See Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973). Second, this Court cannot nullify a peace
order issued by a state court or command a state court to
reimburse Schiff for expenses associated with a state
proceeding. At bottom, Schiff cannot obtain the relief he
foregoing reasons, it is this 2nd day of October
2019, by the United States District Court for the District of
Maryland, hereby ordered:
1. The Motion to Proceed in Forma Pauperis (ECF No. 2) IS
2. The Complaint IS DISMISSED pursuant to 28 U.S.C. §
3. The Clerk SHALL SEND a copy of this Order to Schiff and a
courtesy copy to his defense counsel Thomas J. Stolz, Esq.;
4. The Clerk SHALL CLOSE this ...