Borkowski v. Dever, 414 F.Supp.3d 788

Background

Five named plaintiffs (students and former students) and putative class challenge UMBC and Baltimore County handling of sexual‑assault/rape reports, alleging systemic under‑reporting, intimidation, and biased investigations.
Specific incidents alleged: Fegler (2014), Frank (2015), Noland (2016), and Borkowski/Hendler (2017), each involving campus or county investigative responses and Title IX or criminal processes.
Defendants include UMBC, Board of Regents, UMBC Police, university officials, Baltimore County, BCPD officers and supervisors, and State’s Attorney personnel; all sued in individual and official capacities.
Plaintiffs assert 20 counts (§ 1983, § 1985/1986, Title IX, Fourth Amendment among others); defendants moved to dismiss and to seal sensitive exhibits.
Court granted sealing motions, dismissed the second amended complaint in large part without prejudice for pleading defects (shotgun/group pleading, failure to plead conspiracy, Eleventh Amendment issues, failure to plead Title IX deliberate indifference or equal‑protection discriminatory intent, defective First and Fourth Amendment claims), and gave 21 days to file a more focused amended complaint.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Group/shotgun pleading and §1983/§1985/§1986 conspiracy counts (Counts I, XVIII, XIX)	Claims pleaded as "all Plaintiffs vs all Defendants" reflect an overarching conspiracy to suppress reports.	Counts are improper group pleading and lack particularized allegations of a meeting‑of‑minds or facts showing conspiracy.	Dismissed: group pleading and failure to plead §1985 conspiracy with non‑conclusory facts.
Eleventh Amendment immunity (UMBC, Board of Regents, UMBCPD, state officials in official capacity)	Plaintiffs say Maryland waived immunity or that entities (UMBCPD) are not arms of the State.	UMBC/Board are State instrumentalities; State has not consented to federal suits; officials in official capacity immune.	Dismissed official‑capacity claims against UMBC, BOR, UMBCPD and university officials under Eleventh Amendment.
Absolute prosecutorial immunity (State’s Attorney Defs.)	Plaintiffs contend actions (destroying evidence, threats, extra‑territorial intimidation) were ultra vires and not protected.	Prosecutors claim absolute immunity for decisions to charge and conduct of prosecutions.	Defendants did not carry burden to show all challenged acts were prosecutorial; absolute immunity not established at dismissal stage.
Qualified immunity (County and State’s Attorney Defs.)	Plaintiffs contend constitutional rights were violated and rights were clearly established.	Defendants assert qualified immunity.	Court found plaintiffs failed to meet burdens to overcome qualified immunity at pleading stage for many claims; analysis required on a claim‑by‑claim basis and some claims dismissed on other grounds.
§1983 Equal Protection (gender discrimination claims)	Alleged policies caused female victims to receive inferior investigation/treatment; provided statistics and systemic motive.	No adequately pleaded discriminatory intent or similarly situated comparator; allegations show disparate impact, not intentional discrimination.	Dismissed: plaintiffs failed to plead purposeful, class‑based discrimination required under Equal Protection.
First Amendment retaliation (Borkowski’s filings / alleged intimidation)	Filing applications for statements of charges is protected petition/speech; defendants engaged in intimidation/retaliation (home visits, threats, firing of sister) to chill speech.	Prosecutorial/official discretion over investigations and prosecutions; successive filings may be harassment, not protected speech; lack of causal and adverse effect pleading.	Dismissed for lack of adequately pleaded facts tying specific retaliatory acts to protected speech and for failure to plead supervisory/municipal liability; some factual allegations (visits/threats) noted but insufficiently pled.
Title IX deliberate indifference / erroneous outcome (Frank, Fegler, Noland, Borkowski/Hendler)	UMBC and investigators (Hunton) conducted sham or biased Title IX investigations and imposed inadequate sanctions, denying educational access.	UMBC conducted investigations, hearings, appeals; plaintiffs fail to show deliberate indifference, severe/pervasive harassment, or procedural defects causing erroneous outcomes; some claims time‑barred or plaintiffs not in UMBC programs.	Dismissed: plaintiffs failed to plead the Davis deliberate‑indifference standard or the Yusuf erroneous‑outcome particulars; Fegler’s claim also time‑barred; non‑students lacked Title IX standing.
Fourth Amendment (SAFE/SAEK exams; consent/informed consent)	Plaintiffs allege consent was invalid because police or hospital misled victims and forms were inadequate; destruction of evidence vitiates consent.	Defendants argue exams were consensual and reasonable; no direct allegations that plaintiffs believed exams were purely medical or that defendants created the consent forms.	Dismissed: plaintiffs failed to allege lack of informed consent or defendant role in consent process; conclusory assertions insufficient.

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard controls motions to dismiss)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumption of truth; plausibility requirement)
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978) (municipal liability requires an official policy or custom causing constitutional injury)
Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (Title IX damages require deliberate indifference to known student‑on‑student harassment)
Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute prosecutorial immunity for advocacy functions in judicial phase)
Burns v. Reed, 500 U.S. 478 (1991) (scope of prosecutorial immunity and functional approach)
Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity framework; clearly established rights inquiry)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (limits on federal suits against states and state officials; Eleventh Amendment principles)
Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30 (1994) (state‑treasury test for arm‑of‑the‑state analysis under Eleventh Amendment)
Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994) (erroneous‑outcome framework for Title IX challenge)
Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219 (4th Cir. 2001) (factors for determining whether entity is an arm of the state for Eleventh Amendment)
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (evidence to infer discriminatory intent in equal‑protection cases)
Ferguson v. City of Charleston, 308 F.3d 380 (4th Cir. 2002) (consent to medical searches in contexts involving law enforcement)