Schiff v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

GRAHAM SCHIFF

:

v. : Civil Action No. DKC 23-338

:

ANTHONY BROWN, et al.

:

MEMORANDUM OPINION

Plaintiff Graham Schiff commenced this action to challenge

the constitutionality of Maryland laws that criminalize harassment

via phone and electronic mail. Presently pending and ready for

resolution are motions for preliminary injunction (ECF No. 11),

for a temporary restraining order (ECF No. 13), to disqualify

defense counsel (ECF Nos. 23, 36), and for summary judgment (ECF

No. 37), filed by Plaintiff; a motion to dismiss filed by

Defendants Marcus Jones, Montgomery County Police Department, and

Nicholas Picerno (ECF No. 25); and a motion to dismiss filed by

Defendants Anthony Brown and John McCarthy (ECF No. 31). The

issues have been briefed, and the court now rules, no hearing being

deemed necessary. Local Rule 105.6. For the following reasons,

Plaintiff’s motions will be denied; the motion to dismiss filed by

Defendants Jones, Picerno, and Montgomery County Police Department

will be granted in part and denied in part; and the motion to

dismiss filed by Defendants Brown and McCarthy will be granted in

part and denied in part.

I. Background

The following facts are alleged in Plaintiff’s Amended

Complaint. (ECF No. 10-3). In 2019, Plaintiff was arrested,

charged, and convicted of stalking under Md. Code Ann., Crim. Law

§ 3-802, for his communications to an assistant state’s attorney.

(Id. ¶¶ 2-3). In October 2022, Plaintiff was again arrested and

charged for communications he sent to or about United States

Supreme Court Justice Kavanaugh and/or Justice Kavanaugh’s wife.

(Id. ¶¶ 7-8). Those charges were later dropped. (Id. ¶ 8).

In December 2022, Plaintiff called and emailed the Montgomery

County Police Department (“MCPD”) about recovering property that

was taken during the execution of a search warrant in connection

with the October 2022 arrest. (Id. ¶ 9). MCPD Captain Nicholas

Picerno sent Plaintiff an email on December 22, 2022, a copy of

which Plaintiff attached to his initial complaint. (ECF No. 1, at

11-12). The email stated the following:

It is my understanding that you were

provided information on December 20th on how

to retrieve your property from the 1st District

station.

Furthermore, in the past week, you have

emailed me twice and called my office twice.

The nature of these communications contained

mostly irrelevant commentary, including

derogatory comments about Montgomery County

Police (MCPD) employees and their physical

appearance. This also includes emails you

have sent to other Montgomery County Police

employees, including Officer Weber, that

contained no official business requests and

were derogatory and insulting.

Sections 3-804 and 3-805 of the Criminal

Law Article of the Annotated Code of Maryland

state:

§3-804. Misuse of telephone facilities

and equipment:

a. Prohibited.- A person may not use

telephone facilities or equipment to

make:

1. An anonymous call that is

reasonably expected to annoy,

abuse, torment, harass, or

embarrass another;

2. Repeated calls with the intent to

annoy, abuse, torment, harass, or

embarrass another; or

3. A comment, request, suggestion,

or proposal that is obscene,

lewd, lascivious, filthy, or

indecent.

[b]. Penalty.- A person who violates this

section is guilty of a misdemeanor and

on conviction is subject to

imprisonment not exceeding 3 years or

a fine not exceeding $500 or both.

§3-805. Misuse of electronic mail:

(b)(1) A person may not maliciously

engage in a course of conduct, through

the use of electronic communication,

that alarms or seriously annoys

another:

(i) with the intent to harass,

alarm[,] or annoy the other;

(ii) after receiving a reasonable

war[n]ing or request to stop by

or on behalf of the other; and

(iii) without a legal purpose.

. . .

Your frequent harassing phone calls

constitute telephone harassment under

§3-804(a)(2) of the Criminal Law Article.

Your emails constitute misuse of electronic

mail under §3-805(b)(1) of the Criminal Law

Article. Therefore, I instruct you to stop

this pattern of harassing telephone calls and

electronic mail communications with all

employees of the Department.

If you continue to engage in this pattern

of harassing telephone calls and electronic

mail to employees of Montgomery County Police

Department, you will be referred to the

State’s Attorney’s Office for prosecution for

misuse of telephone facilities under

§3-804(a)(2) of the Criminal Law Article and

misuses of electronic mail under §3-805(b)(1)

of the Criminal Law Article.

In the future, should you need to conduct

any further official business with the

Montgomery County Policy Department, please

use either the non-emergency number, the

relevant district station main line, or 911 if

the event is an emergency.

(Id.).

Plaintiff, proceeding pro se, filed a complaint against

Defendants Anthony Brown, in his official capacity as the Attorney

General of Maryland; John McCarthy, in his official capacity as

the State’s Attorney of Montgomery County; Nicholas Picerno, in

his official capacity as Captain for the Montgomery County Police

Department; and Marcus Jones, in his official capacity as Chief of

the Montgomery County Police Department. (ECF No. 1). Plaintiff

later amended his complaint to add the Montgomery County Police

Department as a defendant. (ECF No. 10).

The Amended Complaint challenges the constitutionality of Md.

Code Ann., Crim. Law §§ 3-802 through 3-805 (the “Maryland anti-

harassment laws”). (ECF No. 10-3). Sections 3-804 and 3-805,

referenced in the email quoted above, criminalize harassment via

phone call and email, respectively. Sections 3-802 and 3-803

criminalize stalking and harassment, respectively.1 As previously

mentioned, Plaintiff was convicted of stalking under § 3-802 in

2019; it is unclear from the Amended Complaint whether Plaintiff

has ever been charged or convicted of harassment under § 3-803.

Plaintiff claims that these laws violate the free speech

clause of the First Amendment to the United States Constitution,

as made applicable to the states by the Fourteenth Amendment.2

Plaintiff’s claim will be construed as a claim brought pursuant to

42 U.S.C. § 1983, which provides a cause of action against state

1 Md. Code Ann., Crim. Law § 3-802 defines stalking as “a

malicious course of conduct” that intentionally or knowingly

“place[s]another in reasonable fear” of “serious bodily injury,”

“assault,” “rape,” “false imprisonment,” or “death,” or causes the

other “serious emotional distress.”

Md. Code Ann., Crim. Law § 3-803 defines harassment as

follow[ing] another in or about a public place

or maliciously engag[ing] in a course of

conduct that alarms or seriously annoys the

other:

(1) with the intent to harass, alarm, or annoy

the other;

(2) after receiving a reasonable warning or

request to stop by or on behalf of the other;

and

(3) without a legal purpose.

2 Plaintiff also claims, in passing, that the laws violate

the “probable cause/unlawful search and seizure” clauses of the

Fourth Amendment and the due process clause of the Fourteenth

Amendment, but he does not explain in what way they do so. (ECF

No. 10-3, at 20).

actors for deprivation of rights guaranteed by the United States

Constitution. Plaintiff claims that the four anti-harassment laws

are unconstitutional as applied to him,3 and he also claims that

§§ 3-802 and 3-804 are facially overbroad. He alleges that there

is a credible threat that the laws will be enforced against him in

the future and, therefore, that they have a chilling effect on his

speech. Plaintiff seeks a declaratory judgment that the laws are

unconstitutional, an injunction to prevent future prosecutions of

Plaintiff under those laws, and the appointment of a special master

to oversee all future prosecutions of Plaintiff.

Plaintiff filed motions for a preliminary injunction and a

temporary restraining order, requesting that the court appoint a

special master to oversee any prosecutions initiated against

Plaintiff during the pendency of this litigation. (ECF Nos. 11,

13). Plaintiff also filed a motion to disqualify Wendi Shiff, the

Assistant Attorney General who represents Defendants Brown and

McCarthy in this case. (ECF No. 23). Plaintiff contends that Ms.

Shiff has a “conflict of interest” because of her involvement in

the prior criminal prosecutions of Plaintiff. Plaintiff later

filed a supplement to this motion, requesting that the entire

3 Defendants interpret the Amended Complaint as only bringing

an as-applied challenge as to §§ 3-803 and 3-805, but the court

reads it as bringing an as-applied challenge as to all four laws,

given that he seeks an injunction preventing Defendants from

initiating criminal proceedings against him under all four laws.

(See ECF No. 10-3 ¶¶ 55-56).

Office of the Attorney General of Maryland be disqualified from

the case for the same reason. (ECF No. 36). Defendants Jones,

Picerno, and Montgomery County Police Department filed a motion to

dismiss the complaint for lack of standing and failure to state a

claim, moving in the alternative for a more definite statement.

(ECF No. 25). Defendants Brown and McCarthy separately filed their

own motion to dismiss for lack of standing and failure to state a

claim. (ECF No. 31). Finally, Plaintiff moved for summary

judgment on all his claims except his request for the appointment

of a special master. (ECF No. 37). Plaintiff did not attach any

exhibits to his motion for summary judgment.

II. Analysis

A. Motion to Disqualify Counsel

Disqualification of counsel is considered a “drastic remedy”

that is “permitted only [w]here the conflict is such as clearly to

call in question the fair and efficient administration of justice.”

Gross v. SES Americom, Inc., 307 F.Supp.2d 719, 722-23 (D.Md. 2004)

(citing Maryland Attorneys’ Rules of Professional Conduct Rule

19-301.7) (internal quotation marks omitted); see also Shaffer v.

Farm Fresh, Inc., 966 F.2d 142, 145-46 (4th Cir. 1992). Under the

Maryland Attorneys’ Rules of Professional Conduct (“MRPC”),

A conflict of interest exists if:

(1) the representation of one client will be

directly adverse to another client; or

(2) there is a significant risk that the

representation of one or more clients will be

materially limited by the attorney’s

responsibilities to another client, a former

client or a third person or by a personal

interest of the attorney.

MRPC 19-301.7. There is no apparent conflict of interest in the

representation by Ms. Shiff or the Office of the Attorney General

of Defendants Brown and McCarthy in this case. Their involvement

in the prior prosecution of Plaintiff creates no conflict because

their interests were adverse to Plaintiff then and remain adverse

to Plaintiff now. Because there is no conflict of interest,

Plaintiff’s motion to disqualify counsel will be denied.

B. Motions to Dismiss

In their motions to dismiss, Defendants argue that

Plaintiff’s claim should be dismissed because (1) he lacks

standing, and (2) he has failed to state a claim under 42 U.S.C.

§ 1983 of an infringement on free speech rights by the Maryland

anti-harassment laws, either on their face or as applied to

Plaintiff. Defendant MCPD also argues that it is not an entity

that is capable of being sued.

Motions to dismiss under Fed.R.Civ.P. 12(b)(6) test the

sufficiency of the facts alleged in the complaint, which must

allege enough facts to state a plausible claim for relief. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible

when the facts pleaded allow “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Id. Legal conclusions or conclusory statements do not suffice.

Id. The 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 of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).

Additionally, when a plaintiff is proceeding pro se, his “pleadings

are to be liberally construed,” and his “complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” King v. Rubenstein, 825

F.3d 206, 214 (4th Cir. 2016) (internal quotation marks omitted).

A motion to dismiss for lack of standing is governed by

Fed.R.Civ.P. 12(b)(1) because it is premised on the court lacking

subject matter jurisdiction to hear the case. See Beyond Sys.,

Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715-16 (4th Cir. 2015).

Where a defendant contends that the complaint “simply fails to

allege facts upon which subject matter jurisdiction can be based,”

the court affords the plaintiff the same procedural protections as

it does when evaluating a motion to dismiss for failure to state

a claim—that is, the court construes the facts alleged in the

complaint as true and most favorably to the plaintiff. See Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The court must

determine whether it has subject matter jurisdiction before

reaching the merits of the case. See Jones v. Am. Postal Workers

Union, 192 F.3d 417, 422 (4th Cir. 1999).

1. Standing

Defendants argue that Plaintiff lacks standing to challenge

the Maryland anti-harassment laws because he cannot show an injury

in fact. Because federal courts only have jurisdiction over cases

or controversies, it is imperative that a plaintiff has standing

in order to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555,

559-60 (1992). To have standing, a plaintiff must (1) “have

suffered an injury in fact—an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical”; (2) show a “causal

connection between the injury and the conduct complained of”; and

(3) show that it is “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Id.

at 560-61 (internal quotation marks and citations omitted).

These requirements are somewhat relaxed in First Amendment

cases. See Sec’y of State of Md. v. Joseph H. Munson Co., Inc.,

467 U.S. 947, 956 (1984). Because of the “possibility that, rather

than risk punishment for his conduct in challenging [a] statute,

[a plaintiff] will refrain from engaging” in protected speech

activities, id., the injury-in-fact element may be satisfied by a

showing of “self-censorship, which occurs when a [plaintiff] is

chilled from exercising h[is] right to free expression.” Benham

v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal

quotation marks omitted). Alternatively, plaintiffs can satisfy

the injury-in-fact element by showing “that they intend to engage

in conduct at least arguably protected by the First Amendment but

also proscribed by the policy they wish to challenge, and that

there is a ‘credible threat’ that the policy will be enforced

against them when they do so.” Abbott v. Pastides, 900 F.3d 160,

176 (4th Cir. 2018) (quoting Kenny v. Wilson, 885 F.3d 280, 288

(4th Cir. 2018)). In determining whether a party has standing,

“[w]hether the statute in fact constitutes an abridgement of the

plaintiff’s freedom of speech is, of course, irrelevant to the

standing analysis.” Meese v. Keene, 481 U.S. 465, 473 (1987)

(internal quotation marks omitted).4

In Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013), the United

States Court of Appeals for the Fourth Circuit held that a litigant

had standing to challenge a North Carolina licensing law that

restricted who may provide dietary and nutrition advice to the

public. In that case, the North Carolina Board of Dietetics and

Nutrition advised Mr. Cooksey that his nutrition advice website

was under investigation, that the Board could “seek an injunction”

4 “Although the assertion of a facial challenge to an

ordinance based on the First Amendment may warrant some relaxation

of the prudential rule that a claimant may assert her own rights

only, the claimant must nevertheless satisfy the injury-in-fact

requirement grounded in Article III.” Benham, 635 F.3d at 135.

against him, and that he should remove certain aspects of his

website in order to comply with the state licensing law. Id. at

231-32. The Fourth Circuit held that Mr. Cooksey had suffered an

injury in fact both because his speech was chilled by the Board’s

actions and because there was a credible threat of prosecution.

Id. at 236-38.

Similar to Cooksey, Plaintiff has suffered an injury in fact

in the form of a credible threat of prosecution under §§ 3-804 and

3-805, based on MCPD’s email that explicitly threatened to refer

him for prosecution under those laws if he continues to call and

email MCPD in the same manner. This email would be “likely to

deter a person of ordinary firmness” from continuing to engage in

the restricted speech activities and presents a “credible threat

of prosecution” under those laws. Id. at 236-37 (internal

quotation marks omitted) (quoting Benham, 635 F.3d at 135).

Additionally, there is a clear “causal connection” between MCPD’s

actions and Plaintiff’s chilled speech and fear of prosecution,

and a declaratory judgment that §§ 3-804 and 3-805 are

unconstitutional would redress his injury. Lujan, 504 U.S. at

560. Thus, Plaintiff has standing to challenge §§ 3-804 and 3-

805.

Plaintiff has not, however, alleged sufficient facts to show

that he has suffered an injury in fact as to §§ 3-802 and 3-803.

Plaintiff has not alleged that MCPD has threatened to refer him

for prosecution under those laws, either in the referenced email

or otherwise. Plaintiff relies solely on his prior arrests and

convictions for stalking as support for his fear of future

prosecution under that law. While “past wrongs are evidence

bearing on whether there is a real and immediate threat of repeated

injury,” “[p]ast exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse

effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974); see

also Abbott, 900 F.3d at 176 (“[A] plaintiff seeking prospective

injunctive relief may not rely on prior harm to establish Article

III standing.” (internal quotation marks omitted)). Plaintiff has

not alleged that the conduct for which he was previously arrested

and convicted is similar to the conduct he now fears will lead to

prosecution for stalking or harassment—his calls and emails to the

MCPD. Indeed, he provides few details about his past arrests and

convictions. Additionally, he does not clearly allege that he has

ever been charged or convicted under § 3-803 for harassment. Thus,

any threat of future prosecution of Plaintiff under §§ 3-802 and

3-803 is conjectural at this point.

Plaintiff has failed to allege sufficient facts showing that

there is a credible threat that he will be prosecuted under

§§ 3-802 and 3-803 or that the existence of those laws has

reasonably chilled his protected speech. Because Plaintiff has

failed to satisfy the injury-in-fact element as to §§ 3-802 and

3-803, he lacks standing to challenge those laws. Those aspects

of his claim will be dismissed for lack of subject matter

jurisdiction.

2. Legal Entity Status of MCPD

Defendants Jones, Picerno, and MCPD move to dismiss the claims

against MCPD on the ground that MCPD is not a legal entity capable

of being sued. Maryland courts have held that county police

departments “are not legally cognizable entities subject to suit

in [their] own name.” Hines v. French, 157 Md.App. 536, 573 (2004)

(internal quotation marks omitted). Plaintiff concedes this in

his response to the motion to dismiss filed by Defendants Jones,

Picerno, and MCPD. (ECF No. 29, at 4). Thus, the claims against

Montgomery County Police Department will be dismissed.

3. First Amendment Challenge5

Defendants contend that Plaintiff has failed to state

adequate facts supporting either a facial or as-applied First

Amendment challenge to the Maryland anti-harassment laws. The

First Amendment prohibits state and local governments, via the

Fourteenth Amendment, from “abridging the freedom of speech.” U.S.

Const. amend. I; Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019).

5 Because Plaintiff has not provided any support for his

separate claims based on the Fourth and Fourteenth Amendments, see

supra note 2, those claims will be dismissed for failure to state

a claim.

There are exceptions to this prohibition—“[l]aws that impinge upon

speech receive different levels of judicial scrutiny depending on

the type of regulation and the justifications and purposes

underlying it.” Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir.

2014). For example, “regulations that discriminate against speech

based on its content are presumptively invalid, and courts usually

apply the most exacting scrutiny.” Id. (internal quotation marks

and citations omitted). Conversely, the First Amendment does not

protect “certain categories of speech, including defamation,

incitement, obscenity, and pornography produced with real

children.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245–46

(2002).

“As-applied” challenges to a statute are generally based on

the contention that a law’s “application to a particular person

under particular circumstances deprived that person of a

constitutional right.” BLM of Shenandoah Valley, LLC v. Augusta

County, No. 5:21-cv-00060, 2023 WL 2505493, at *7 (W.D.Va. Mar.

14, 2023). These challenges are usually “based on a developed

factual record and the application of a statute to a specific

person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165,

172 (4th Cir. 2009).

Defendants’ only argument as to why Plaintiff’s as-applied

challenge should be dismissed is that the phone and email

harassment laws have not been “applied” to Plaintiff because he

was never charged under those laws. (ECF Nos. 25, at 11; 31-1, at

7). They cite no authority for this argument. To the contrary,

as previously discussed, a credible threat of enforcement of a

statute as to a specific plaintiff gives that plaintiff standing

to mount an as-applied challenge to a statute. See Preston v.

Leake, 660 F.3d 726, 735 (4th Cir. 2011) (noting that a “credible

threat of prosecution” gave the plaintiff “standing to mount an

as-applied challenge to the statute”).

Plaintiff has alleged that his speech via phone calls and

emails to the MCPD was met with threatened prosecution under

§§ 3-804 and 3-805, which proscribes speech via phone and email

made with an intent to annoy, harass, or embarrass another, among

other things. At the motion to dismiss stage, the court cannot

opine on the merits of this claim but simply evaluates whether

Plaintiff has stated a plausible claim upon which relief can be

granted. Indeed, there is no “developed factual record” before

the court to allow a determination of whether Plaintiff’s calls

and emails were properly restricted as unprotected speech or

conduct rather than protected speech. The allegations in the

Amended Complaint are sufficient to state a plausible claim that

the application of §§ 3-804 and 3-805 to Plaintiff was

unconstitutional.

A facial challenge, on the other hand, is premised on the

contention that a statute is unconstitutional on its face,

regardless of its application to the plaintiff. As the Fourth

Circuit has explained,

In the First Amendment context, there are two

ways for a plaintiff to mount a facial

challenge to a statute. First, the plaintiff

may demonstrate that no set of circumstances

exists under which [the law] would be valid,

or that the [law] lacks any plainly legitimate

sweep. Second, the plaintiff may show that

the law is overbroad [because] a substantial

number of its applications are

unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City

Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013) (internal

quotation marks and citations omitted) (citing United States v.

Stevens, 559 U.S. 460, 472-73 (2010)).

Here, as Defendants argue, it cannot be said that there is no

set of circumstances under which § 3-804 would be valid.6 Indeed,

the Fourth Circuit has held that West Virginia’s analogous

telephone harassment law, albeit with somewhat different statutory

language, is constitutional on its face and as applied to the

litigant in that case. See Thorne v. Bailey, 846 F.2d 241, 243-44

(4th Cir. 1988). Additionally, Congress has passed a similar

federal telephone harassment statute, see 47 U.S.C. § 223(a)(1),

6 Plaintiff only brings a facial challenge as to § 3-804 and

not § 3-805, conceding that § 3-805’s exception for “peaceable

activity (1) intended to express a political view or provide

information to others; or (2) conducted for a lawful purpose” saves

it from being overbroad. (ECF No. 10-3 ¶ 51).

which other circuits have upheld against as-applied challenges.

See generally United States v. Lampley, 573 F.2d 783 (3d Cir.

1978); United States v. Weiss, No. 20-10283, 2021 WL 6116629 (9th

Cir. Dec. 27, 2021).

Defendants also argue that Plaintiff has not alleged that any

applications of § 3-804, other than its application to himself,

are unconstitutional. They misread Plaintiff’s Amended Complaint.

Plaintiff alleges that § 3-804 “criminalizes any number of

commonplace situations in which an individual engages in

expressive activity that might offend a private citizen and/or

public official.” (ECF No. 10-3 ¶ 17). He goes on to provide an

example: “the law prohibits a person from repeatedly calling a

politician to complain about a bill they sponsored . . . if he or

she persists in calling[] and said politician claims to be annoyed,

abused, tormented, harassed, or embarrassed.” (Id. ¶ 18). In any

event, it is premature at this stage, without the benefit of

discovery, to conceive of the spectrum of applications of § 3-804

and assess whether most or all of them are constitutional. See

Greater Balt. Ctr. for Pregnancy Concerns, 721 F.3d at 282

(explaining that discovery is needed “as a precursor to any true

facial analysis” and determining that “the district court could

not properly evaluate the [challenged statute’s] validity in all

or most of its applications without evidence” regarding its

applications). By alleging that § 3-804 is facially overbroad in

that it criminalizes a substantial number of protected speech

activities in addition to its legitimate applications, Plaintiff

has alleged sufficient facts to support a facial challenge as well.

Thus, Defendants’ motions to dismiss as to Plaintiff’s First

Amendment facial and as-applied challenges will be denied.

Defendants Jones and Picerno also move for dismissal or, in

the alternative, for a more definite statement based on the Amended

Complaint’s failure to provide a separate explanation of the basis

for the claims against each individual Defendant and its grouping

of the Defendants together. (ECF No. 25, at 4-6, 13-14).

Defendants Brown and McCarthy also express in their motion some

uncertainty as to what allegations apply to them specifically.

(ECF No. 31-1, at 7). Because pro se complaints are to be construed

liberally, and because the court had little difficulty making out

Plaintiff’s claims, the Amended Complaint will not be dismissed on

this basis. To assist Defendants in preparing their responses,

however, Plaintiff will be directed to provide a more definite

statement pursuant to Fed.R.Civ.P. 12(e). Plaintiff will be

ordered to file a second amended complaint that more clearly

indicates which allegations pertain to which individual defendants

within fourteen (14) days.

C. Plaintiff’s Motions

Because parts of Plaintiff’s Amended Complaint will survive

Defendants’ motions to dismiss, it is appropriate to evaluate

Plaintiff’s motions for preliminary injunction, temporary

restraining order, and summary judgment as to those remaining

claims. Fed.R.Civ.P. 65 governs preliminary injunctions and

temporary restraining orders. While different procedures apply to

preliminary injunctions and restraining orders, see Hoechst

Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir.

1999), the standard for granting either is the same, and they are

both viewed as “extraordinary” remedies. See Sarsour v. Trump,

245 F.Supp.3d 719, 728 (E.D.Va. 2017). The moving party must

establish, through a “clear showing,” that “1) they are likely to

succeed on the merits; 2) they are likely to suffer irreparable

harm absent preliminary relief; 3) the balance of the equities

favors relief; and 4) the relief is in the public interest.”

Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th

330, 339 (4th Cir. 2021); Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20-22 (2008).

Fed.R.Civ.P. 56 provides that a motion for summary judgment

shall only be granted if there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(a). To show that facts are not

disputed, the moving party must cite to “particular parts of

materials in the record.” Fed.R.Civ.P. 56(c)(1).

Plaintiff has not clearly established that he is likely to

succeed on the merits or that he is entitled to judgment as a

matter of law on his First Amendment claims. As previously noted,

the Fourth Circuit and other circuits have upheld similar telephone

harassment laws against both facial and as-applied challenges. At

this preliminary stage in the litigation, Plaintiff has not made

a clear showing that he is likely to succeed—that is, to obtain a

result that differs from those other cases. Additionally, it would

not be in the public interest to prohibit Defendants from

prosecuting Plaintiff under the Maryland anti-harassment laws, in

effect giving him carte blanche to harass MCPD employees via phone

and email, prior to determining the constitutionality of those

laws.

Plaintiff also has not produced any evidence, aside from a

copy of the email from MCPD, that establishes he is entitled to

relief on his claim as a matter of law. He has not, for example,

presented any evidence of the contents of his phone calls and

emails that provoked MCPD’s response, nor has there been any

discovery to illuminate the spectrum of constitutional and

unconstitutional applications of those laws. For those reasons,

Plaintiff’s motions for preliminary injunction, temporary

restraining order, and summary judgment will be denied.

III. Conclusion

For the foregoing reasons, Plaintiff’s motions will be

denied, and Defendants’ motions to dismiss will be granted in part

and denied in part. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge