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Bly v. Circuit Court For Howard County

United States District Court, D. Maryland

December 4, 2019

RAYMOND J. BLY Plaintiff,


          J. Mark Coulson United States Magistrate Judge.

         The 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).[1] 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).

         I. BACKGROUND

         This 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, 15-16.

         Defendants 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 No. 27).

         Plaintiff's theory then shifted to arguments that specified parts of the files were missing at the time of his brief[2] 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 be baseless:

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).

         At the 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.

         Following 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.

         Thus, 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' evidence.

         Rather 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).

         On 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 motions below.

         II. RULE OF ...

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