At issue here is the plaintiff Lee Oliver's motion for leave to amend his complaint, as well as related motions to strike and to dismiss his original complaint. Because his claims are futile, even as delineated in his proposed amended complaint, Mr. Oliver's motion for leave to amend his complaint will be denied and this case will be dismissed.
BACKGROUND
In 1995, a jury convicted Mr. Oliver of first and second degree rape in the Circuit Court for Prince George's County. (Am. Compl. ¶ 26.) His conviction was overturned on appeal. (Am. Compl. ¶ 27.) In 1998, Mr. Oliver entered an Alford plea to rape in the second degree and received a 5-year sentence. (Am. Compl. ¶ 28.) In July 1999, he was released from custody and simultaneously was rеquired to register as a sex offender. (Am. Compl. ¶ 29-30.) He objected to the sex offender registration requirement. (Am. Compl. ¶ 29.) From July 1999 until May 2015, Mr. Oliver was required to re-register as a sex offender, at regular intervals, with state and local authorities, and remained listed on the Maryland Sex Offender Registry (hereafter, "MSOR"). (Am. Compl. ¶ 26-70.) In the interim, the specific requirements and purported duration of his registration changed numerous times with various retroactive amendments to the Maryland Sex Offender Registration Act (hereafter "the Act").
The Act was first promulgated on October 1, 1995, and applied only to Child Sexual Offenders. (Am. Compl. ¶ 73-74.) On October 1, 1997, an amendment to the Act broadened the Act's applicability to include "Sеxually Violent Offender[s]" and "Sexually Violent Predator[s]." (Am. Compl. ¶ 79.) Following Mr. Oliver's release and registration in 1999, a new amendment to the Act required individuals who, like Mr. Oliver, were convicted under Article 27 § 464A to register for life. (ECF 10-1 at p. 4.) In 2010, additional amendments instituted a tiered structure whereby Mr. Oliver, as a "tier III sex offender," was required to register in person every three months for life. (Id. )
In 2013, the Maryland Court of Appeals concluded that the Act's retroactive registration requirement violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. Doe v. Dep't of Pub. Safety & Corr. Servs. ,
On February 1, 2018, Mr. Oliver filed suit against the Department of Public Safety and Correctional Sеrvices, the Sexual Offender Advisory Board, Montgomery County, and various employees working for these agencies, alleging that his rights under the United States Constitution, the Maryland Declaration of Rights, and Maryland common law were violated by the initial and continued requirement that he register as a sex offender. (Compl., ECF 1.) Both County and State defendants filed motions to dismiss-on March 26, 2018, and on April 9, 2018, respectively. (ECF 8; ECF 10.) Mr. Oliver did not respond to either motion to dismiss. On May 8, 2018, Mr. Oliver instead filed an amended complaint, adding as defendants four former Secretaries of the Department and three members of the Montgomery Police Department. (Am. Compl., ECF 12.) In this amended complaint, Mr. Oliver abandoned his claims agаinst the Department and the Sexual Offender Advisory Board, converted his claims against employees to individual capacity claims, but maintained his claims against Montgomery County.
ANALYSIS
I. Standard of Review
Rule 15 of the Federal Rules of Civil Procedure governs a plaintiff's prerogative to amend her complaint. Plaintiffs can amend as a matter of course if the revisions are offered within 21 days of service.
"Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards: A district court may deny leave if amending the complaint would be futile-that is, if the proposed amended complaint fails to satisfy the requirements of the federal rulеs." Katyle v. Penn Nat. Gaming, Inc. ,
II. Discussion
The defendants in this case assert that granting Mr. Oliver leave to amend would be a futile exercise because his complaint, as amended, fails to state a viable claim. Specifically, they argue, as a threshold matter, that his claims are barred by the applicable statute of limitations and are thus untimely. Second, they contend that he fails to plead facts sufficient to state a claim under Rule 12(b)(6). Third, they put forth affirmative defenses-including qualified immunity-contending that even if the complaint contains facts sufficient to support a claim, they are immunized from suit. Taken together, the second and third grounds demonstrate the proposed amended complaint's futility.
A. Time Bar
The court is ill-equipped to rule on the plaintiff's continuing violation theory without more facts, and, ultimately, there is no need to do so. The timing dispute here is over the date of accrual. The defendants argue that all claims brought by Mr. Oliver are subject to a three-year deadline. (ECF 10-1 at pp. 6-7; ECF 9-1 at pp. 19-20.) He does not dispute this contention; rather, he asserts that the continuing violation exception or the doctrine of equitаble tolling salvage his belated filing. (ECF 19 at p. 12.) Mr. Oliver was first required to register as a sex offender in July 1999. (Am. Compl. ¶¶ 29-30.) But because he was sentenced in 1995, when the Maryland Sex Offender Registration Act only applied to "Child Sexual Offender[s]," and the victim was over 18 years of age, he objected. (Am. Compl. ¶ 74.) Mr. Oliver was required to re-register, at regular intervals, through May 5, 2015. (Am. Compl. ¶ 99.) On May 23, 2015, MSOR staff determined that Mr. Oliver was no longer required to register. (Am. Compl. ¶ 100.) On May 28, 2015, he was informed that he was no longer required to remain registered.
*347(Am. Compl. ¶ 71.) This case was filed on February 1, 2018. (See Compl., ECF 1.)
There are not, in the record at present, "all facts necessary" to dispose of the plaintiff's continuing violation theory. Goodman v. Praxair, Inc. ,
Here, the alleged injury occurred in 1999 when the plaintiff initially was required to register-but it is also alleged to have occurred on the repeated occasions when the defendants made affirmative representations through May 2015, maintaining that Mr. Oliver was required to re-register-representations that persisted despite multiple changes to the Act, (Am. Compl. ¶¶ 73-89), and to its retroactivity requirements. Doe I ,
B. Failure to State a Claim & Affirmative Immunity Defenses
In their motions opposing leаve to amend, the defendants assert that the plaintiff's complaint, even as amended, fails to state a claim upon which relief can be granted. They are correct. While some claims falter on Rule 12(b)(6) grounds, others fail because the defendants are entitled to qualified immunity.
*348To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly ,
i. Constitutional Claims
a. Sufficiency of pleaded facts: § 1983 Claims
Counts I, II, IV, V, VII, VIII, and IX allege constitutional violations brought under § 1983. (See Pl's Reply, ECF 19 at p. 5.) "To state a claim under § 1983, a plaintiff must allege [1] the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins ,
Mr. Oliver objects to the requirement that he register in 1999 for a crime committed in 1995, pursuant to a 1997 revision to the Act rendering him eligible for registration. While not framed specifically as a federal Ex Post Facto Clause violation-indeed the term "ex post facto" does nоt appear in the proposed amended complaint-this is the central grievance from which the balance of his constitutional claims derive. (See Am. Compl. ¶¶ 3, 103.) If the Maryland Sex Offender Registration Act does violate the federal constitution's Ex Post Facto Clause-by no means a foregone conclusion-that argument may have some merit. But if it does not, then it is not clear how the plaintiff can maintain the contention that he was never required to register as a sex offender. The facts in the complaint supporting the conclusion that the Act is unconstitutional on ex post facto grounds are meager, and yet, even assuming they are sufficient, they yield the definitive conclusion that, if there was a violation of the plaintiff's constitutional rights, no such right was clearly established at the time of the alleged violation.
*349The Maryland Court of Appeals concluded that the Maryland Sex Offender Registration Act's retroactive registration requirement violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. Doe I ,
The federal rule is somewhat different. In Smith v. Doe , the Supreme Court considered whether the Alaska sex offender registration program violated the Ex Post Facto Clause.
Smith , by itself, does not preclude the plaintiff's claims. While the Alaska and Maryland sex offender registration laws have some similarities, the threshold question within the ex post facto analytical framework prescribed by Justice Kennedy in Smith concerns the legislature's intent. Thus, to decide the issue, the court would have to sift the Maryland Sex Offender Registration Act and its various amendments through the test announced in Smith . While the facts necessary to conduct *350this analysis are conspicuously missing from the complaint, one could defensibly conclude that Mr. Oliver describes his own retroactive requirement to register with sufficient detail to provisionally shepherd this сlaim past Rule 12(b)(6). Indeed, it is conceivable that evidence of the Maryland legislature's punitive intent might arise in the course of litigation, as might reason to view the Act as so punitive in purpose or effect as to negate the State's [regulatory] intention. Smith ,
A survey of the other constitutional violations alleged by the plaintiff confirms that his only potentially viable claims hinge on constitutional questions of first impression. The plaintiff's Eighth Amendmеnt claims, for example, rise and fall with his Ex Post Facto Clause claim. The plaintiff alleges that his ongoing inclusion in the Maryland Sex Offender Registry and the requirement that he re-register violate the Eighth Amendment's ban on cruel and unusual punishment. (Am. Compl. ¶ 129.) The amendment prohibits "not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm ,
The plaintiff next alleges that the defendants violated his Fourth Amendment rights by "seiz[ing] his person on each of the at least 26 times that he was required to appear before them to register." (ECF 19 at p. 6.) The proрosed amended complaint is devoid of the facts needed to make out an unlawful seizure claim. "[N]ot all personal intercourse between [government officials] and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show, of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Florida v. Bostick ,
The final pleaded predicаte constitutional violation is a due process claim under the Fourteenth Amendment. There is a right under the Fourteenth Amendment to procedural due process when a person's liberty interest in their *351reputation is impugned by the state. See Bd. of Regents v. Roth ,
b. Immunity: § 1983 Claims
The only potential predicate constitutional violations that may clear the Rule 12(b)(6) hurdle are simultaneously sо novel as to preclude liability under the qualified immunity doctrine. Nine of the ten defendants named in the proposed amended complaint are individual government employees; namely Secretaries of Public Safety and Correctional Services dating back to Mr. Oliver's initial inclusion in the MSOR, and Montgomery County police officers working for the Sex Offender Registry Unit who met with Mr. Oliver at his various registration appearances.
Qualified immunity is an affirmative defense to liability under
Here, the requisite qualified immunity analysis comes chiefly at the second prong. Given the foregoing discussion of the predicate constitutional violations in the plaintiff's prima facie case, there remains a slim possibility that the plaintiff's constitutional rights were, in fact, violated. There is no possibility, by contrast, that the rights allegedly violated were clearly established at the time of the purported violation. Explicating this second prong, the Supreme Court explained that a right is clearly established when "its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer ,
The facts of this case present no indication that the defendants had reason to question the constitutionality of their conduct. MSOR officials removed Mr. Oliver from the registry within a year of the Maryland Court of Appeals decision in Doe II , despite the fact that he still met the definition of a sex offender under SORNA. This shows only an intent to remаin on the right side of a developing area in the law. More importantly, if any constitutional violation occurred in this case, it was not clearly established at the time. Mr. Oliver has neither pleaded nor proffered in his memoranda any facts to show that a reasonable official would know Mr. Oliver's registration violated a constitutional right, any facts to show that pre-existing law demonstrated the unlawfulness of the defendants' action, or any facts to show the defendants had, or should have had, any warning that their conduct was less than in full compliance with the dictates of the constitution. As set forth above, the Supreme Court and the Fourth Circuit have upheld similar retroactive registration requirements. Even assuming the MSOR could be held to be punitive under the test announced in Smith v. Doe , knowledge of that fact cannot be imputed to the defendants during the time of Mr. Oliver's registration. Because the plaintiff's right not to *353be listed in the MSOR was not clearly established at the time the alleged violation occurred, qualified immunity insulates the individual defendants in this case from liability under § 1983.
ii. State Law Claims
In addition to his constitutional claims, Mr. Oliver alleges that the defendants violated his rights under the Maryland Constitution. Specifically, he alleges a deprivation of his rights under Declaration of Rights Article 24, Article 17, and Article 25. The first is brought as a standalone claim. (Count III). The latter two are included within his federal constitutional claims. (Count IV and Cоunt V).
a. State Defendants
The State defendants are entitled to immunity on the plaintiff's state law claims under
Under Maryland law, the malice necessary to defeat immunity under section 5-522 is what is often referred to as 'actual malice'-that is, conduct 'motivated by ill will, by an improper motive, or by an affirmative intent to injure.' Shoemaker v. Smith ,, 353 Md. 143 , 560 (1999). A similarly high threshold must be crossed to establish gross negligence-the defendant must havе 'acted with wanton or reckless disregard for the safety of others.' Boyer v. State , 725 A.2d 549 , 323 Md. 558 , 132 (1991) ; cf. State v. Albrecht , 594 A.2d 121 , 336 Md. 475 , 348 (1994) (defining gross negligence as conduct 'so heedless and incautious as necessarily to be deemed unlawful and wanton, manifesting such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of an indifference to consequences.') 649 A.2d 336
Young v. City of Mount Ranier ,
Here, the plaintiff pleads no facts showing that any of the defendants acted with malice or gross negligence. There are no facts that point toward an improper motive or an affirmative intent to injure. There is simply no allegаtion of malice in the plaintiff's proposed amended complaint. Similarly, there are no factual allegations in the proposed amended complaint that even approach gross negligence. The defendants' shortcomings here, if any, were a failure to foresee that the MSOR would be held unconstitutional under Maryland law. This falls far short of the wanton, reckless, or heedless action needed to overcome § 5-522(b) immunity. Because there are insufficient facts within the proposed amended complaint to sustain state law claims against state defendants and because state law immunity applies, granting the plaintiff leave to amend these сlaims would be futile.
b. County Defendants
Mr. Oliver's state law claims against Montgomery County are futile because he failed to comply with the Local Government Tort Claims Act (hereafter "LGTCA"). State law constitutional torts are subject to the LGTCA. Thomas v. City of Annapolis ,
Here, the plaintiff flouts the LGTCA requirements in two ways. First, he does not plead compliance with § 5-304 as a substantive element of his claims against the county. Hansen v. City of Laurel ,
iii. Common Law Claims
The plaintiff's final remaining claim alleges intеntional infliction of emotional distress (hereafter "IIED") under Maryland common law. The elements of an IIED claim under Maryland common law are fourfold: "(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress; (4) the emotional distress must be severe." Harris v. Jones ,
*355Here, there are simply no factual allegations pertaining to this cause of action. The claim itself, as delineated in Count VI in the proposed amended complaint, is but a bare and conclusory recitation of the legal elements. For example, there are no factuаl allegations that any of the defendants' actions, if indeed they were wrongful, were intentionally or recklessly so. There are no factual allegations that the defendants' conduct was outrageous or extreme-a high burden for any plaintiff to meet. Nor are there allegations that Mr. Oliver suffered a severely disabling emotional response. See Tavakoli-Nouri v. State ,
CONCLUSION
Because, for the reasons stated above, all Mr. Oliver's claims would fail to survive a motion to dismiss, granting him leave to amend would be futile. Therefore, plaintiff's motion for leave to amend will be dеnied. The unopposed motions to strike the amended complaint filed without leave of court also will be granted. And the defendants' initial motions to dismiss, opposed only by the attempt to file an amended complaint, prevail for the same reasons the amended complaint would be futile. Accordingly, those motions also will be granted.
A separate order follows.
Notes
Additionally, "if a pleading is one to which a responsive pleading is required, [a party may amend its pleading within] 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1)(B). Here, Mr. Oliver's amended complaint was filed outside the 21-day window.
The plaintiff provides inconsistent dates. He separately asserts that notice was received on August 3, 2015. (Am. Compl. ¶ 3.)
As explained below, the state law claims against Montgomery County fail for the additional reason that the plaintiff failed to comply with the Local Government Tort Claims Act.
Mr. Oliver's § 1983 claim against Montgomery County (Count VII) is also futile as amended because it fails to state a claim upon which relief can be granted. See Twombly ,