United States District Court, D. Maryland
RAYMOND J. BLY Plaintiff,
CIRCUIT COURT FOR HOWARD COUNTY, MD, et al. Defendants.
Mark Coulson United States Magistrate Judge.
case is before me for all proceedings by the consent of the
parties pursuant to 28 U.S.C. § 636(c). (ECF Nos. 40
& 43). Currently pending before the Court is Mr.
Raymond Bly's (“Plaintiff”) Motion to Alter
or Amend Judgment Under Rule 59(e) (ECF No. 56), Motion to
Resolve Illegal Return of Papers (ECF No. 57), and Motion for
Default and for Sanctions (ECF No. 61).
Court need not reiterate the full background of the
underlying suit, as it is provided in its Memorandum Opinion
issued on October 9, 2019. (ECF No. 53). Suffice it to say
that for many years in various forums, Plaintiff has sought
to challenge his 1987 criminal conviction from the Circuit
Court for Howard County. In this most recent suit, as set
forth in his Amended Complaint filed in May of 2018 (ECF No.
2), Plaintiff alleged that as of 2016, through the date of
filing, he has been unable to locate the Circuit Court files
relating to this conviction in their expected places of
physical and electronic storage, asserting that they have
been removed, destroyed, and/or erased so as to stymie his
ongoing attempts at challenging his conviction, in violation
of his First Amendment rights. Id. ¶¶ 14,
argued, supported by sworn declarations, that while these
files are not available on the Circuit Court's electronic
filing system (due to their age and lack of activity), the
physical files have always been available for examination and
copying through the Clerk's Office, a fact relayed to
Plaintiff in October of 2017. (ECF No. 21-3 at 2).
Notwithstanding Plaintiff's allegations that the files
were destroyed or otherwise wrongfully kept from him,
Plaintiff in fact inspected them in the Clerk's Office on
August 16, 2019, a fact that Plaintiff does not dispute. (ECF
theory then shifted to arguments that specified parts of the
files were missing at the time of his brief review of the
file in August of 2019, and other parts (i.e.,
transcripts of certain proceedings) had been added.
Specifically, Plaintiff asserted that during his August 16,
2019 review, the original arrest warrant and indictment were
missing. (ECF No. 27 at 1). In response, Defendants produced
a sworn declaration attesting that both the original arrest
warrant and the indictment are found within the original file
and attached copies. (ECF No. 31-1 at 2, 5-13). This is
consistent with a review of the file completed in 2015, when
Plaintiff made similar allegations in another proceeding. At
this time, the Honorable Richard S. Bernhardt of the Circuit
Court for Howard County found Plaintiff's allegations to
The Court has reviewed the court file in the above-captioned
case. There is an indictment contained within the court file
and there is nothing about the records contained therein that
would provide substance to the bald allegations made by the
[Bly] in his December 2, 2015 filing.
(ECF No. 31-2 at 2).
Court's October 7, 2019 status hearing on Defendants'
motion, in addition to oral argument, Defendants produced the
files at issue and the files' custodian, Chief Deputy
Clerk Diane Liebno (who also served as a key declarant in
support of Defendants' summary judgment pleadings). Ms.
Liebno testified that the files were complete, as verified by
the docket sheet, and were stored in the Clerk's Office
continuously - as she previously indicated in her October,
2017 correspondence to Plaintiff. (ECF No. 60 at 20-21). She
again explained why, due to their age and lack of activity,
they were not made part of the Circuit Court's electronic
filing system, nor were they ever sent to an off-site storage
facility. Id. at 22-23. Ms. Liebno further testified
as to what items are not typically included in the
Circuit Court's files: trial notes of judges, exhibits
(once the appeal time expired), materials maintained by the
State's Attorney, and transcripts of proceedings not
otherwise ordered. Id. at 23-24. Plaintiff was
allowed to cross examine Ms. Liebno. Id. at 25.
Additionally, Plaintiff was invited to inspect the file.
Id. at 26.
this testimony and Plaintiff's inspection, he originally
took the position that the file (as presented) was more
complete than the one he had briefly reviewed on August 16,
2019, but less complete than what he remembered had been in
the file when he last saw in approximately five years before.
Id. at 25-31. When asked for specific examples of
what he felt could be missing, Plaintiff again identified the
arrest warrant and indictment that: (1) had already been
filed by Defendants as an exhibit to ECF No. 31 in advance of
the hearing; and (2) were, in fact, within the file as
produced. Id. at 31-35.
there was no competent evidence before the Court supporting
Plaintiff's allegation, within the Amended Complaint,
that the files had been destroyed, sealed, or deleted from
the Circuit Court's electronic filing system (since the
uncontradicted evidence is that they were never part of that
system). Further, there was uncontradicted evidence that
Plaintiff was offered the opportunity to inspect the file in
October of 2017, shortly after he requested to do so, but
apparently chose not to inspect it. Plaintiff asserted,
without corroboration, that his nonspecific memory of the
size of the file during his August 16, 2019 review (of
approximately one minute) was smaller than that
presented to the Court, and further, that an alleged review
five years before seemed larger than presented. Such
unsubstantiated assertions, however, were insufficient to
defeat Defendants' Motion. (ECF No. 53). In short,
Plaintiff has his own notions of what should or should not be
included in court files, what should or shouldn't be part
of the Circuit Court's electronic filing system, and what
he did or didn't see at various points of time during his
previous inspections. These notions do not create a
legitimate factual dispute as to the current availability and
completeness of the file in the face of Defendants'
than file an appeal or other appropriate post-judgment
motion, on October 21, 2019, Plaintiff filed a combined
“Motion to Recuse” this Magistrate Judge and
“Demand for Perjury Inquiry and for Sanctions.”
The basis for recusal was apparently Plaintiff's
disagreement with this Magistrate Judge's granting of
summary judgment and his allowing Defense Counsel to continue
to appear in the case despite Plaintiff's unsubstantiated
complaints against Counsel, while the remainder of the motion
stemmed from Plaintiff taking issue with the accuracy of the
testimony of the custodian of records at the hearing, again
without support. Given that final judgment had been entered,
the pleading was not an appropriate post-judgment motion
under the Federal Rules of Civil Procedure, and accordingly
the pleading was returned to Plaintiff. (ECF No. 55).
November 4, 2019, Plaintiff filed a Motion to Alter or Amend
Judgment or, in the alternative, for New Trial pursuant to
Rule 59. (ECF No. 56). On November 5, 2019, Plaintiff filed a
“Motion to Resolve Illegal Return of Papers, ”
arguing that a court is obligated to accept all papers filed
by a litigant, and then reasserting his arguments regarding
recusal and demand for a perjury inquiry. (ECF No. 57). On
December 2, 2019, Plaintiff filed a Motion for Default and
for Sanctions. (ECF No. 61). The Court will address these
RULE OF ...