Bly v. Circuit Court for Howard County, MD

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

RAYMOND J. BLY, :

Plaintiff, :

v. :

Civil Action No. GLR-18-1333

CIRCUIT COURT FOR HOWARD :

COUNTY, MD, et al.,

:

Defendants.

MEMORANDUM OPINION

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. BACKGROUND2

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

1 Also pending before the Court is Bly’s Motion for Leave to Proceed in Forma

Pauperis (ECF No. 6). The Court will deny the Motion because, although Bly is on a

fixed income, according to the application attached to his Motion, he owns several cars

and a house. (Mot. Leave Proceed Forma Pauperis at 1–2, ECF No. 6).

2 Unless otherwise noted, the Court takes the following facts from Bly’s Amended

Complaint, (ECF No. 2), and accepts them as true. See Erickson v. Pardus, 551 U.S. 89,

94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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.

II. DISCUSSION

A. Incorporation and Motion to Amend

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

3 Bly also alleges that unspecified people who made “comments conveying to

prospective counsel the warning that representation of [Bly] would be detrimental to their

legal careers and their ability to provide effective representation to their other clients”

interfered with his “efforts to obtain legal representation.” (Am. Compl. at 4–5, 11–12).

Bly does not clearly state the legal basis for this claim nor does he allege it against

Defendants. As a result, the Court will grant Defendants’ Motion with respect to this

claim.

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 F.App’x 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 F.App’x 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,

United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions

couched as factual allegations, Iqbal, 556 U.S. at 678.

Pro se pleadings are liberally construed and held to a less stringent standard than

pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)); accord Brown v. N.C. Dep’t of Corr., 612 F.3d 720,

722 (4th Cir. 2010). Pro se complaints are entitled to special care to determine whether

any possible set of facts would entitle the plaintiff to relief. Hughes v. Rowe, 449 U.S. 5,

9–10 (1980). But “even a pro se complaint must be dismissed if it does not allege ‘a

plausible claim for relief.’” Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at

*3 (D.Md. Dec. 4, 2012) (quoting Iqbal, 556 U.S. at 679). “While pro se complaints may

‘represent the work of an untutored hand requiring special judicial solicitude,’ a district

court is not required to recognize ‘obscure or extravagant claims defying the most

concerted efforts to unravel them.’” Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391

(4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.

1985)).

2. Analysis

In their Motion, Defendants argue that Bly fails to state a claim against them and

that various immunity doctrines bar his claims. Bly counters that Defendants are not

immune and that he has adequately stated his claims. The Court will first examine

whether Bly adequately states his claims in the Amended Complaint, and will then turn to

Defendants’ potential immunities.

a. Constitutional Claims

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S.

266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To prevail

on a § 1983 claim, a plaintiff must demonstrate a deprivation of rights guaranteed by the

Constitution or laws of the United States and that the alleged deprivation was committed

by a “person” acting under color of state law. 42 U.S.C. § 1983 (2018); West v. Atkins,

487 U.S. 42, 48 (1988) (first citing Parratt v. Taylor, 451 U.S. 527, 535 (1981); and then

citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978)). “In analyzing a § 1983

claim, a court must first identify ‘the specific constitutional right allegedly infringed.’”

Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 343 (D.Md. 2011) (citing Albright, 510

U.S. at 271).

i. Due Process

Bly pleads violations of both his procedural and substantive due process rights. To

plead a procedural due process claim under the Fourteenth Amendment, a plaintiff “must

first establish that he had a property or liberty interest at stake.” Smith v. Ashcroft, 295

F.3d 425, 429 (4th Cir. 2002) (citing Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993)).

Here, Bly has not made this threshold showing. Bly’s liberty is not at issue, so his only

possible interest is one of property. To have a property interest, “a person clearly must

have more than an abstract need or desire” or mere “unilateral expectation of it” and

instead must have “a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972). Property interests are not created by the Constitution but rather by

“existing rules or understandings that stem from an independent source such as state

law.” Id. Bly has cited no statute or case that suggests that he has a property interest in

the court records of his criminal case, and the Court finds none.4

Further, courts have concluded that criminal-defendants-turned-plaintiffs do not

have such a property interest. In Braun v. City of New York, the United States District

Court for the Southern District of New York concluded that the plaintiff had no

“legitimate claim of entitlement to his criminal records or their sealing” under Roth,

noting that “the records were government property[,] . . . neither owned nor possessed by

the plaintiff.” 284 F.Supp.3d 572, 580 (S.D.N.Y. 2018). The same logic applies here.

Thus, the Court concludes that Bly fails to state a procedural due process claim.

Substantive due process is a “far narrower concept” than procedural due process,

occurring “only where the government’s actions in depriving a person of life, liberty, or

property are so unjust that no amount of fair procedure can rectify them.” Love v.

4 For example, Maryland Rule 16-903(b) provides that court records are

“presumed to be open to the public for inspection,” which implies that the court records

are the court’s property and that no party possesses or controls them.

Pepersack, 47 F.3d 120, 122–23 (4th Cir. 1995). To state a substantive due process claim,

in addition to pleading a property or liberty interest, Bly must also plead that the

government action was “so egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience.” Cty of Sacramento v. Lewis, 523 U.S. 833, 847 n.8

(1998). As stated above, Bly has identified no property right, and neither his life nor his

liberty is at issue. Bly’s allegations also do not shock the conscience. Thus, the Court

concludes that Bly fails to state a substantive due process claim.

Because Bly fails to state either a procedural or substantive due process claim, the

Court will grant Defendants’ Motion as to these claims.5

ii. First Amendment and Article 40

Bly makes several First Amendment claims.6 The Court will address them in turn.

5 For the same reasons, the Court also concludes that Bly’s claim under Article 24

of the Maryland Declaration of Rights must be dismissed. Generally, “Article 24 due

process claims are read in pari materia with Fourteenth Amendment due process claims,

except in limited circumstances when Article 24 may be interpreted more broadly.” Ross

v. Cecil Cty. Dep’t of Soc. Servs., 878 F.Supp.2d 606, 622 (D.Md. 2012) (citing Koshko

v. Haining, 921 A.2d 171, 194 n.22 (Md. 2007)). Those limited circumstances have

included “placing stricter limits on prosecutorial discretion to enter nolle prosequi” and

granting a broader right to counsel and a greater protection from self-incrimination.

Koshko, 921 A.2d at 194 n.22. The main issue in Bly’s case, access to judicial records, is

not of the type that the Court of Appeals of Maryland has concluded warrants a broader

application of Article 24. See id.; Dua v. Comcast Cable of Maryland, Inc., 805 A.2d

1061, 1071 (Md. 2002).

6 To the extent Bly asserts claims on behalf of the news media or the general

public, he does not have standing to bring them. Standing concerns the threshold question

of the court’s subject-matter jurisdiction. CGM, LLC v. BellSouth Telecomm., Inc., 664

F.3d 46, 52 (4th Cir. 2011). As this Court has explained, standing “has both constitutional

and prudential components.” Bell v. Clarke, No. TDC-15-1621, 2016 WL 1045959, at *2

(D.Md. Mar. 16, 2016) (quoting Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)).

For prudential standing, “the plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third

aa. Speech, Petitioning, and Association

Bly alleges Defendants’ “deprivation of and interference with access to the

judicial records violates [his] rights of free expression, petitioning, [and] association.”

(Am. Compl. at 3). But Bly does not state facts in his Amended Complaint that support

the claim that Defendants infringed on his right to speak freely, petition the government

for the redress of grievances, or associate with anyone he chooses. See U.S. Const.

amend. I. To the contrary, based on his stated history of picketing, running for office, and

speaking with the press, (see Am. Compl. ¶¶ 17–20, 27), Bly has vigorously exercised

those First Amendment rights. The Court, therefore, concludes that Bly has not stated a

claim against Defendants for a violation of these particular First Amendment rights.

Accordingly, the Court will grant Defendants’ Motion with respect to Bly’s free speech,

petitioning, and association claims.

bb. Access to Judicial Records

“It is well settled that the public and press have a qualified right of access to

judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub.

Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (collecting cases). The First Amendment

“secures a right of access ‘only to particular judicial records and documents.’” Id. at 266

(quoting Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988)). But in those

instances, “access may be restricted only if closure is ‘necessitated by a compelling

parties.” Id. (quoting Bishop, 575 F.3d at 423). Bly brings claims on behalf of people he

believes would be interested in his case but who are not plaintiffs in this case. Because

Bly does not have standing to bring claims on behalf of the news media or general public,

the Court is without the power to hear them and will dismiss those claims.

government interest’ and the denial of access is ‘narrowly tailored to serve that interest.’”

Id. (quoting In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986)). The right of public

access “may be abrogated only in unusual circumstances.” Id. (quoting Stone, 855 F.2d at

182). Federal appellate courts have repeatedly noted, in various articulations, that public

access to judicial records allows the public to better understand, monitor, and trust the

courts. Id. (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303

(4th Cir. 2000)).

Among the “particular judicial records and documents” to which the First

Amendment secures access are those filed in connection with plea and sentencing

hearings in criminal cases. In re Wash. Post Co., 807 F.2d at 390 (reasoning that the First

Amendment right of access that applies to certain judicial proceedings should extend to

the records connected to those proceedings). Courts must also properly tailor sealing

orders in criminal cases to comport with the public’s First Amendment right to access

these records. Doe, 749 F.3d at 268 (citing In re State-Record Co., 917 F.2d 124, 129 (4th

Cir. 1990) (per curiam)). Further, “[t]he burden to overcome a First Amendment right of

access rests on the party seeking to restrict access, and that party must present specific

reasons in support of its position.” Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567,

575 (4th Cir. 2004) (citing Press-Enter. v. Superior Court, 478 U.S. 1, 15 (1986)).

Here, Bly alleges that he was convicted of certain crimes approximately thirty

years ago; that he moved for and was denied a new trial in December 2015; that, in 2016,

he attempted to access his case records at the Circuit Court and at its off-site records

facility but was told that they did not exist; that the same records are not available via the

Maryland Judiciary’s online docket;7 and that he never received any notice that his

records might be sealed. He alleges that Judge Gelfman or Clerk Robey authorized one or

more of Doe Defendants to remove the records or acquiesced in that action. Because the

Court must construe Bly’s Amended Complaint liberally, and at this stage, accept the

truth of its facts, Erickson, 551 U.S. at 94, the Court concludes that he plausibly alleges

that Defendants have denied him access to his entire criminal case record, at least some

portion of which he has a First Amendment right to access. See Doe, 749 F.3d at 264–69;

In re Wash. Post Co., 807 F.2d at 390; In re State–Record Co., 917 F.2d at 129. The

burden rests on Defendants to explain why Bly cannot access his records.8 See Va. Dep’t

of State Police, 386 F.3d at 575. Accordingly, the Court will deny Defendants’ Motion

with respect to Bly’s First Amendment access to judicial records claim.9

7 In considering a motion under Rule 12(b)(6), as here, the Court “may properly

take judicial notice of matters of public record.” Philips v. Pitt Cty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir.2009). The Court, therefore, takes judicial notice of the fact that

Bly’s only criminal record on the Maryland Judiciary Case Search pertains to a case in

the District Court for Howard County, No. 00605361T1, from 1986. See Maryland

Judiciary Case Search, http://casesearch.courts.state.md.us/casesearch/inquirySearch.jis

(search by entering “Bly” and “Raymond” in the name fields and by clicking the

“Criminal” case type button). The Court also notes the alert below Bly’s single listed

case: “CaseSearch will only display results for cases that exist and for which the case’s

existence or a person’s identity is not protected information under the Maryland Rules on

Access to Court Records.”

8 It is possible, of course, that the Circuit Court sealed Bly’s records after

considering the minor victim’s interests, or that Bly was denied access for some other

legitimate reason. See, e.g., Md. Rule 16-907(e) (requiring the custodian of records to

deny inspection of “a record created or maintained by an agency concerning child abuse

or neglect that is required by statute to be kept confidential”).

9 For the same reasons, the Court concludes that Bly states a claim under Article

40 of the Maryland Declaration of Rights. Article 40 free speech claims are typically read

cc. Retaliation

“The First Amendment right of free speech includes not only the affirmative right

to speak, but also the right to be free from retaliation by a public official for the exercise

of that right.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,

499 (4th Cir. 2005) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.

2000). A plaintiff seeking to recover for First Amendment retaliation must allege that: (1)

he engaged in protected First Amendment activity; (2) the defendants took some action

that adversely affected his First Amendment rights; and (3) there was a causal

relationship between his protected activity and the defendants’ conduct. Id. (citing Suarez

Corp. Indus., 202 F.3d at 686).

Here, Bly does not plead sufficient facts to establish each element of his claim

such that the Court can infer that Defendants are liable for retaliation. Specifically, Bly

has not alleged any facts that indicate his picketing caused Defendants to withhold his

case records. Bly alleges that he had been picketing for “several years” before he learned

he could not access his criminal case records. (Am. Compl. ¶ 18). It follows, then, that

either Bly was not attempting to access his criminal case records for years, in which case

his First Amendment rights were not adversely affected, or that an unspecified Defendant

saw him picketing and then waited for years to retaliate against him by removing his

court records, which is implausible. See Iqbal, 556 U.S. at 678; Goss, 917 F.Supp.2d at

in pari materia with their corollary First Amendment claims. See Dua, 805 A.2d at 1071–

72. Because Bly states a claim under the First Amendment for access to court records, he

also states a claim under Article 40.

449. Thus, the Court concludes that Bly fails to plausibly allege a First Amendment

retaliation claim. Accordingly, the Court will grant Defendants’ Motion as to this claim.

b. Immunities

i. Qualified Immunity

Judge Gelfman and Clerk Robey argue that they are entitled to qualified immunity

from Bly’s claims. The Court concludes that it cannot yet make this determination.

The doctrine of qualified immunity shields government officials “from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); West v. Murphy, 771 F.3d 209, 213 (4th Cir.

2014). Qualified immunity protects government officials when they have made “mere

mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v.

Economou, 438 U.S. 478, 507 (1978). As “an immunity from suit rather than a mere

defense to liability, . . . [qualified immunity] is effectively lost if a case is erroneously

permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis

removed). Accordingly, qualified immunity questions should be resolved on summary

judgment or earlier in the litigation when possible. See Anderson v. Creighton, 483 U.S.

635, 640 n.2 (1987).

There is a two-prong test to determine if a government official is protected by

qualified immunity: (1) whether the facts that the plaintiff has alleged or shown “make

out a violation of a constitutional right”; and (2) whether that right was “clearly

established” at the time of the purported violation. Pearson v. Callahan, 555 U.S. 223,

232 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion to

resolve these two prongs in whichever order they deem appropriate, based on the

circumstances of the case. Id. at 236. The answers to both prongs must be in the

affirmative for a plaintiff to prevail. Batten v. Gomez, 324 F.3d 288, 293–94 (4th Cir.

2003). Once the defendant raises qualified immunity as a defense, the plaintiff bears the

burden of proof on the first prong, that is, whether a constitutional violation occurred.

Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (citing Bryant v. Muth, 994 F.2d

1082, 1086 (4th Cir. 1993)). The defendant bears the burden on the second prong, that is,

that the right was not clearly established at the time of the violation. Id. at 378 (quoting

Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).

The second prong involves a three-step analysis. First, the court identifies “the

specific constitutional right allegedly violated.” Collinson v. Gott, 895 F.2d 994, 998 (4th

Cir. 1990). Second, the court inquires whether at the time of the alleged violation, that

right was “clearly established.” Id. Third, the court assesses “whether a reasonable person

in the official’s position would have known that his conduct would violate that right.” Id.;

see Cloaninger ex rel. Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009)

(explaining that a right is “clearly established” when “it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted” (quoting Saucier,

533 U.S. at 202)).

Therefore, even when a plaintiff proves that an official has violated his rights, the

official may nevertheless be entitled to qualified immunity “if a reasonable person in the

‘official’s position could have failed to appreciate that his conduct would violate’ those

rights.” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quoting Collinson,

895 F.2d at 998). This allowance for mistakes is “ample”—the qualified immunity

standard protects “all but the plainly incompetent or those who knowingly violate the

law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S.

335, 343, 341 (1986) (internal quotation marks omitted)). This allowance “exists because

‘officials should not err always on the side of caution’ because they fear being sued.” Id.

(quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)).

Here, as discussed above, the facts in the Amended Complaint make out a

violation of a constitutional right, namely Bly’s First Amendment right of access to court

records. Based on controlling Fourth Circuit precedent, that right was clearly established

at the time of the purported violation. See Doe, 749 F.3d at 264–69. The Court is unable

to make a determination regarding qualified immunity, however, because without

discovery concerning what actions Judge Gelfman and Clerk Robey took with regard to

Bly’s records, it is not clear that Bly’s First Amendment right to access judicial records

was, in fact, violated. Accordingly, the Court will deny Defendants’ Motion without

prejudice on the question of qualified immunity.

ii. Absolute Judicial Immunity

The Court is similarly unable to determine at this stage of the case whether Judge

Gelfman or Clerk Robey are entitled to absolute judicial immunity.

The Court of Appeals of Maryland has held “the appropriate test for determining

whether an individual is entitled to receive the benefit of absolute judicial immunity for

certain functions is whether: (1) the act performed was by a judicial officer; and (2) the

act was a judicial act.” D’Aoust v. Diamond, 36 A.3d 941, 969 (Md. 2012). With regard

to the first prong, the “critical determination” is “whether the individual is exercising

judgment similar to that of a judge.” Id. (first citing Gill v. Ripley, 724 A.2d 88, 92 (Md.

1999); and then citing McCray v. State, 456 F.2d 1, 4 (4th Cir. 1972)). Here, Judge

Gelfman clearly qualifies as a judicial officer. Whether Clerk Robey is also a judicial

officer depends on the actions, if any, he took in this case and whether he was exercising

judgment similar to a judge in performing them. The nature of Clerk Robey’s actions also

informs the second prong of the analysis.

With respect to the second prong, “[a] judge loses [her] absolute immunity only

when [she] knowingly acts in the ‘clear absence of all jurisdiction’ over the matter, or

when the act performed was not a judicial act.” Id. at 970 (first citing Parker v. State, 337

653 A.2d 436, 441 (Md. 1995); and then citing Mandel v. O’Hara, 576 A.2d 766, 768

(Md. 1990)). Whether a judge’s action is judicial depends on “the nature of the act

itself, i.e., whether it is a function normally performed by a judge, and . . . the

expectations of the parties, i.e., whether they dealt with the judge in [her] judicial

capacity.” Id. (quoting Parker, 653 A.2d at 445). The issuance of a warrant, for example,

has been considered a judicial act deserving of judicial immunity, whereas the demotion

and discharge of court personnel is treated as an administrative act not deserving of

judicial immunity. Id. (first citing Parker, 653 A.2d at 444; and then citing Forrester v.

White, 484 U.S. 219, 229 (1988)). As for court clerks, some federal appellate courts have

granted them judicial immunity “in connection with discretionary, as opposed to

ministerial, acts, or when the act is required by court order or taken at a judge’s

direction.” Gill, 724 A.2d at 96 (collecting cases). Others have considered whether the

court clerk’s conduct was “an integral part of the judicial process.” Id. (collecting cases).

The Fourth Circuit adopted the latter approach in granting judicial immunity to a federal

district judge’s law clerk. See Jackson v. Houck, 181 F.App’x 372, 373 (4th Cir. 2006).

Here, Bly does not allege that Judge Gelfman presided over any of his cases.

Instead, his claims against both Judge Gelfman and Clerk Robey concern directions they

allegedly gave to Circuit Court employees regarding Bly’s files. Bly “assumes” that

“authorization for – or acquiescence to – removal from the internet of the record of the

aforesaid criminal proceeding against [Bly] and his subsequent efforts to overturn his

wrongful conviction could have come only from one or more of the Defendants named

herein,” that is, Judge Gelfman or Clerk Robey. (Am. Compl. at 7). If Bly’s case files

were sealed by Court order, Judge Gelfman and Clerk Robey would likely be entitled to

absolute judicial immunity. But if the case files were kept from Bly for some other

reason, as Bly alleges in his Amended Complaint, then the involved Defendants may not

be entitled to absolute judicial immunity. Because the context and specifics of Judge

Gelfman’s and Clerk Robey’s actions, if any, are not yet clear, the Court will deny

Defendants’ Motion without prejudice with respect to absolute judicial immunity.

iii. Eleventh Amendment Immunity

aa. Circuit Court

Under the Eleventh Amendment, a state and its agencies are immune from suits

for damages brought in federal court by individual citizens unless the state consents.

Dixon v. Balt. City Police Dep’t, 345 F.Supp.2d 512, 513 (D.Md. 2003) (citing Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)), aff’d, 88 F.App’x 610 (4th

Cir. 2004). The State of Maryland has waived its sovereign immunity for certain types of

cases brought in state courts, see Md. Code Ann., State Gov’t, §§ 12–101 et seq. (West

2019), but it has not waived its immunity under the Eleventh Amendment to suit in

federal court, Dixon, 345 F.Supp.2d at 513. Maryland state courts, like the Circuit Court,

are, therefore, immune from suit. See Coleman v. Court of Appeals of Md., 566 U.S. 30,

35 (2012) (affirming district court, which ruled that that Maryland Court of Appeals is an

entity or instrumentality of the State for purposes of sovereign immunity, on other

grounds); Alexander v. Dist. Court of Md. for Charles Cty., No. DKC 2007-1647, 2008

WL 6124449, at *7 (D.Md. Mar. 20, 2008). Accordingly, the Court will grant

Defendants’ Motion to the extent it seeks dismissal of Bly’s claims against the Circuit

Court.

bb. Individual Defendants

Bly sues the individual Defendants in both their individual and official capacities.

A suit may be maintained against state officials acting in their official capacities only to

the extent that it seeks injunctive or declaratory relief. Ex Parte Young, 209 U.S. 123

(1908) (holding that the Eleventh Amendment allows prospective relief against a state

official to prevent future constitutional or statutory violations). State officials acting in

their official capacities are outside the class of “persons” who can be sued for damages

under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). State officials

may, however, be sued for damages in their individual capacities. Hafer v. Melo, 502

U.S. 21, 23 (1991). Thus, the Court concludes that the individual Defendants are entitled

to Eleventh Amendment immunity only for Bly’s claims seeking money damages from

them in their official capacity. Accordingly, Bly may only pursue declaratory and

injunctive relief against the individual Defendants in their official capacities and money

damages in their individual capacities.

III. CONCLUSION

For the foregoing reasons, the Court will deny Bly’s Motion for Leave to Proceed

in Forma Pauperis (ECF No. 6) and Bly’s Motion to Amend My Complaint and Request

Return Papers of Defendants (ECF No. 14). The Court will grant in part and deny in part

Defendants’ Motion to Dismiss (ECF No. 7). The Court will grant the Motion to the

extent it seeks dismissal of claims against the Circuit Court and to the extent it seeks

dismissal of all but Bly’s First Amendment access to court records claim. The Court will

deny the Motion to the extent it seeks dismissal of Bly’s First Amendment access to

judicial records claim. A separate Order follows.

Entered this 26th day of June, 2019.

/s/

________________________

George L. Russell, III

United States District Judge