The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
GRAHAM SCHIFF
:
v. : Civil Action No. DKC 23-338
:
ANTHONY BROWN, Maryland Attorney
General, et al. :
MEMORANDUM OPINION
Plaintiff Graham Schiff (“Plaintiff”) commenced this action
to challenge the constitutionality of Maryland laws that
criminalize harassment via phone and electronic mail. Presently
pending and ready for resolution is the motion for more definite
statement or, in the alternative, motion to strike the amended
complaint filed by Defendants Marcus Jones, Nicholas Picerno,
Anthony Brown, and John McCarthy (collectively, “Defendants”).
(ECF No. 52). The issues have been briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6. For
the following reasons, the motion for more definite statement will
be denied but the alternative motion to strike the amended
complaint will be granted, and the amended complaint will be
dismissed.
I. Background
The relevant facts in this case have been outlined in a
previous opinion, (ECF No. 46, at 2-7), but some procedural history
is in order. After filing the original complaint on March 3, 2023,
Plaintiff moved to amend the complaint on March 9, 2023. (ECF
No. 5). The court explained that it was not necessary to move for
leave to file an amended complaint because Plaintiff was within
the 21-day window under Rule 15(a)(1) and provided Plaintiff with
instructions for the amended complaint. (ECF No. 7, at 2-4).
Specifically, the court instructed:
Plaintiff’s amended complaint should contain,
at a minimum, a short and plain statement of
the claim that shows that he is entitled to
relief, a request for relief, see Fed. R. Civ.
Proc. 8(a), and the name(s) of each defendant,
see Fed. R. Civ. Proc. 10(a). The first page
should begin with the case caption, which
includes the name of the court and the names
and addresses of all parties. For example,
writing the name of only one party and “et
al.” is inadequate. The body of the amended
complaint should be made up of double-spaced,
numbered paragraphs explaining the facts of
the claim, the legal basis, and the relief
requested. At the end, Plaintiff must sign
and date the amended complaint noting his full
name, address, and contact information
underneath his signature. In sum, the amended
complaint must include all the allegations
against each defendant, so that the amended
complaint may stand alone as the sole
complaint in this action which Defendants must
answer.
(ECF No. 7, at 3-4). Plaintiff filed an amended complaint on March
17, 2023. (ECF No. 10).
Defendants Marcus Jones (“Chief Jones”), Nicholas Picerno
(“Captain Picerno”), and the Montgomery County Police Department
(“MCPD”)1 filed a motion to dismiss2 on April 21, 2023 arguing that
Plaintiff failed to adhere to the general pleading requirements
and to the court’s order because the amended complaint “lumps all
of the defendants together and fails to identify the legal basis
for his claims, and thereby deprives each defendant of notice.”
(ECF No. 25, at 5). Chief Jones, Captain Picerno, and the MCPD
also complained that Plaintiff “ignored the clear directive of the
Court” to separate his pleadings into “numbered paragraphs
identifying the allegations he lodges against each defendant[,]”
and that it is “difficult, if not impossible to decipher which
allegations he lodges against which defendant or formulate a
response.” (Id. at 6-7).
The court declined to grant Defendants’ motion to dismiss on
the basis that Defendants cannot discern which claims apply to
them because “pro se complaints are to be construed liberally, and
because the court had little difficulty making out Plaintiff’s
claims[.]” (ECF No. 46, at 19). It did, however, order Plaintiff
to “file a second amended complaint that more clearly indicates
which allegations pertain to which individual defendants within
fourteen (14) days.” (ECF No. 46, at 19; see also ECF No. 47, at
1 The court later dismissed the claims against MCPD. (ECF
Nos. 46, at 14; 47).
2 Defendants Anthony Brown and John McCarthy filed a separate
motion to dismiss. (ECF No. 31). They did not request a more
definite statement.
2). To date, Plaintiff has not done so. Plaintiff did file a
response to the court’s order3 arguing that each individual
Defendant should remain in the case:
Defendants Brown and McCarthy, pursuant to
their positions of Attorney General and County
State Attorney, remain as defendants because
they are implicated in the event there is a
facial declaration and/or injunction
regarding either two remaining statutes
(telephone and electronic harassment).
Defendant Picerno also remains, because in the
event of an injunction, it would also
implicate him since the injunction would be to
prevent him from filing charges based on
speech.
Also, the court dismissed all claims not
related to the first amendment. Among the
relief requested in the second amended
complaint[] was to have an official oversee
any process filed against the plaintiff by the
institutions of Defendants McCarthy and Jones.
The plaintiff wishes to proceed on that issue
because of the past abuse of his first
amendment rights. As such, the dismissal of
other claims should not foreclose that issue,
3 On the same day that Plaintiff filed the response to the
court’s order, he also filed a motion for reconsideration. (ECF
No. 49). In his response, he requested that the court decide his
motion for reconsideration before considering his response “in
case there needs to be an alteration of the present order being
responded to.” (ECF No. 48). The court denied Plaintiff’s motion
for reconsideration on November 20, 2023. (ECF Nos. 54; 55). In
its memorandum opinion, the court explained that it would address
Plaintiff’s response to its order and Defendants’ second motion
for more definite statement after the United States Court of
Appeals for the Fourth Circuit has ruled on Plaintiff’s appeal.
(ECF No. 54, at 2 n.2). On February 5, 2024, the Fourth Circuit
ruled on Plaintiff’s appeal, concluding that “the district court
did not abuse its discretion in denying the motion for a
preliminary injunction because Schiff has not demonstrated his
claims are likely to succeed on the merits.” (ECF No. 57-1, at
2).
and it implicates the need for both McCarthy
and Jones as defendants.
(ECF No. 48). In his response, Plaintiff did not challenge the
court’s order that he file a second amended complaint. (Id.).
Defendants filed a motion for more definite statement or, in the
alternative, motion to strike the amended complaint on November 9,
2023. (ECF No. 52). Plaintiff filed no response thereafter.
II. Analysis
Defendants request that the court order Plaintiff to file a
second amended complaint or, in the alternative, strike the amended
complaint and in turn dismiss the action for having failed to
comply with the court’s October 18, 2023 order to provide a more
definite statement. (ECF No. 52, at 5). First, they argue that
the amended complaint “failed to provide each defendant notice of
the claim or claims made against him and further failed to
enumerate each allegation made against each defendant.” (ECF
No. 52, at 4). Second, they assert that Plaintiff’s response to
the court’s order that he file a second amended complaint failed
to comply with the court’s order and the Federal Rules of Civil
Procedure. (Id.). Specifically, they contend:
In form, Schiff’s prior filings in this case,
including an Amended Complaint (ECF 10),
demonstrate his understanding of how to amend
his operative pleading, by filing a new
complaint form and enumerating each specific
claim (including specific allegations)
against each defendant. In substance, Schiff
fails to explain which allegations he is
asserting as to each defendant. At best, he
continues to argue for injunctive relief
against each defendant, but does not provide
a “short and plain statement of the claim” as
to each defendant, leaving each unable to
reasonably prepare the response required by
Rule 8(b).
(Id. at 4-5).
Rule 8(a) provides that a “pleading that states a claim for
relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” Rule 12(e)
provides:
A party may move for a more definite statement
of a pleading to which a responsive pleading
is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a
response. The motion must be made before
filing a responsive pleading and must point
out the defects complained of and the details
desired. If the court orders a more definite
statement and the order is not obeyed within
14 days after notice of the order or within
the time the court sets, the court may strike
the pleading or issue any other appropriate
order.
Although pro se complaints are held “‘to less stringent
standards than formal pleadings drafted by lawyers[,]’” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)), pro se litigants such as Plaintiff
“are still required to meet ‘certain minimal standards of pleading’
and ‘must adhere to the rudimentary dictates of civil
procedure[,]’” Loper on behalf of C.D. v. Howard Cnty. Pub. Sch.
Sys., No. 20-cv-2184-RDB, 2021 WL 689963, at *2 (D.Md. Feb. 23,
2021) (quoting Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md. 1981)).
The court can discern from the amended complaint—which is not a
model of clarity—that Plaintiff alleges that Md. Code Ann., Crim.
Law §§ 3-802 through 3-805, which criminalize harassment and
stalking, violate the free speech clause of the First Amendment to
the United States Constitution as applied to him, and that §§ 3-
802 and 3-804 are facially overbroad. Although the court can
discern which claims Plaintiff brings, the amended complaint does
not specify which claims are brought against which Defendants and
does not identify how the facts alleged support his claims for
relief. Plaintiff also failed to double-space his paragraphs as
the court directed. The amended complaint does not provide
Defendants with “fair notice” of the claims alleged against them.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The court already granted Plaintiff an opportunity to cure
the defects in the amended complaint by filing a more definite
statement pursuant to Rule 12(e) in the form of a second amended
complaint. (ECF No. 46, at 19). Because Plaintiff failed to do
so, the court has the authority to strike the pleading pursuant to
Rule 12(e). See Porter v. AMS Servicing, LLC, No. 10-cv-3252-RWT,
2011 WL 673780, at *2 (D.Md. Feb. 16, 2011) (cautioning the
plaintiff that the court “has the authority to strike the Complaint
if the Court’s order to provide a more definite statement is not
obeyed[,]” and striking the complaint in a later order (10-cv-
03252-RWTECF, ECF No. 18) when plaintiff failed to file an amended
complaint).
Plaintiff did not challenge the court’s order to file a second
amended complaint in his response. (ECF No. 48). His argument
that Defendants should remain in the case because they would be
implicated if the court orders an injunction, declaration, or
special master to oversee any court process against Plaintiff
initiated by Defendants does not resolve the defects in his amended
complaint. (Id.). Moreover, Plaintiff filed no opposition to
Defendants’ motion for more definite statement or, in the
alternative, motion to strike the amended complaint.
In light of the defects in the amended complaint and
Plaintiff’s failure to comply with the court’s order, the amended
complaint will be stricken and the case will be dismissed. See
Sanders v. Midland Funding LLC, No. 12-cv-2518-DKC, 2012 WL
12877383, at *2 (D.Md. Oct. 12, 2012) (dismissing the case for
non-compliance with the court’s order to file a more definite
statement); Taylor v. Manis, No. 7:19-cv-00866, 2021 WL 4129593,
at *1, *3-4 (W.D.Va. Sept. 9, 2021), aff’d, No. 21-7442, 2022 WL
604058 (4th Cir. Mar. 1, 2022) (dismissing second amended complaint
that did not comply with the court’s order to list each claim
clearly, number them, identify which defendants are named as to
each claim, and list the facts in support of each claim, even when
the plaintiff filed an opposition that provided some
clarification).
III. Conclusion
For the foregoing reasons, Defendants’ motion for more
definite statement will be denied and Defendants’ alternative
motion to strike the amended complaint will be granted. The case
will thus be dismissed. A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge