Civil Action No. DKC 18-2809
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil rights class action are Defendants’ motions to dismiss the second amended complaint (ECF Nos. 26; 29; 45; 46), and Defendants’ motions to seal (ECF Nos. 28 & 48).
Plaintiffs Anna Borkowski, Katelyn Frank, Marcella Fegler, Annemarie Hendler, and Kaila Noland (“named Plaintiffs“), on their own behalf and on behalf of those similarly situated (“class Plaintiffs“), bring suit against twenty-two Defendants alleging twenty counts related to Defendants’ handling of Plaintiffs’ sexual assault or rape investigations. (ECF No. 21). Plaintiffs allege that all Defendants, or combinations thereof, infringed upon their rights in violation of (1)
The Defendants filed motions to dismiss in four groups: (1) Defendants University of Maryland Baltimore County (“UMBC” or the “University“), the Board of Regents of the University System of Maryland (“Board of Regents“), the UMBC Police Department (“UMBCPD“) (collectively, “Institutional Defendants“), Dr. Freeman Hrabowski, Mark Sparks, and Paul Dillon (all collectively, “University Defendants“); (2) Defendant Bernadette Hunton; (3) Defendants Nicholas Tomas, Kristin Burrows, Kimberly Montgomery, Morrow Lane, Rosemary Brady, Paul Dorfler, and Timothy Lee (“Officer Defendants“), James Johnson and Terrence Sheridan (“Supervisory Officer Defendants“), Baltimore County, and the Baltimore County Police Department (“BCPD“) (all collectively, “County Defendants“); and (4) Defendants Scott Shellenberger, Lisa Dever, Bonnie Fox, and Krystin Richardson (“State‘s Attorney Defendants“). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6.
I. Factual Background
Unless otherwise noted, the facts outlined here are set forth in the complaint and construed in the light most favorable to Plaintiffs. Plaintiffs allege that all Defendants adopted “discriminatory policies and/or [exhibited] deliberate indifference [] to artificially lower the number of recorded reports of rape and sexual assault
A. Marcella Fegler
Plaintiffs allege that “[o]n August 25, 2014, Marcella Fegler was raped by four members of the UMBC basketball team.” (ECF Nos. 53, at 11; 21, at 56-57). “Defendant UMBC expelled two of [her] assailants, who had both admitted . . . that they had taken advantage of her.” (ECF No. 21, at 56). “Defendant UMBC refused to hold accountable the assailants who did not admit that they raped Ms. Fegler.” (Id.).
Defendant Tomas, a BCPD officer, later investigated Ms. Fegler‘s rape and “offered to testify, on behalf of the assailants, that the assailants were ‘not involved as alleged.‘” (ECF Nos. 21, at 57; 53, at 11). “Defendant Tomas dismissed Ms. Fegler‘s assault, informing her that ‘in order for some of the sex acts,’ which Ms. Fegler could not recall ‘to be performed, she would have had to be conscious to participate.‘” (ECF Nos. 21, at 57; 51, at 12).
B. Katelyn Frank
Plaintiff Frank alleges that she was raped by “a fellow UMBC student” on September 10, 2015. (ECF No. 21, at 57). Ms. Frank reported her rape and obtained a Sexual Assault Forensic Exam (“SAFE“) at Greater Baltimore Medical Center (“GBMC“). (ECF Nos. 21, at 9; 53, at 12). Plaintiff Frank states that Defendant Dillon, a BCPD officer, dissuaded her from making a police report by telling “Ms. Frank and her mother that the ‘administrative method’ was ‘faster and easier,’ ‘more victim friendly,’ and [] ‘easier to prove.‘” (ECF No. 21, at 59). Defendant Hunton conducted a Title IX investigation. Defendant Hunton is a private attorney hired by UMBC “to investigate and prepare [] Title IX Draft Report[s] and Final Report[s].” (ECF No. 21, at 62). Defendant Hunton determined, by a preponderance of the evidence, that Plaintiff Frank was not sexually assaulted. Plaintiff Frank then reported the sexual assault directly to the “Catonsville Precinct of BCPD[.]” (ECF No. 21, at 65). Defendant Lee, a BCPD officer, took Plaintiff Frank‘s statement. (Id., at 65-66). Defendant Lee then drove to the UMBCPD to follow up on Plaintiff Frank‘s allegations. (Id. at 66). “When Defendant Lee returned, he informed Ms. Frank that the University had no record of the assault, even though” “she had copies of the records from the Title IX investigation . . . [and] her email to Defendant Dillon reporting the crime.” (Id.). Defendant Lee classified “Ms. Frank‘s rape as a ‘suspicious condition,’ and it was closed with a ‘non-criminal disposition[.]‘” (Id.). Plaintiff Frank alleges that when she “followed up with prosecutors[,]” Defendant Dever, the assistant state‘s attorney and chief of the sex offense and child abuse division of the State‘s Attorney‘s Office, “stated that, to prosecute a sexual assault she ‘need[s] more than just [the victim‘s] credible testimony because the suspect will present equally credible testimony at trial that this was consensual and [the victim] was not incapacitated.‘” (Id., at 67; ECF No. 53, at 12). Plaintiff Frank further alleges that when her “mother . . . requested more information regarding the investigation, Defendant Dever forwarded the email to Defendant Montgomery[, a BCPD detective assigned to the special victims team,] and wrote ‘Hahaha! Her response from my being so nice.‘” (ECF No. 21, at 67).
C. Kaila Noland
“On March 30, 2016, Kaila Noland was sexually assaulted” by “her lab partner at
D. Anna Borkowski and Annemarie Hendler
Plaintiffs Borkowski and Hendler, both students at Towson University, allege that on “October 20, 2017, three members of Defendant UMBC‘s baseball team raped” them. (ECF Nos. 53, at 13; 21, at 69-70). “The women reported the assaults to the Towson University Police Department (‘TUPD‘)” the same day. (ECF No. 21, at 71). “[T]he women were transported to [GBMC] for examination and treatment.” (Id.). Ms. Borkowski and Ms. Hendler also reported their sexual assaults to Defendant UMBC. UMBC investigated the reports according to Title IX procedures and determined that no violation of their sexual assault policy had occurred. (Id., at 121-22; ECF No. 53, at 13).
“On March 14, 2018, Ms. Borkowski exercised her rights pursuant to [§] 2-607 of the Courts and Judicial Proceedings Article of the Maryland Code.” (ECF No. 21, at 80). “Section 2-607 provides that ‘[a]n individual may file an application for a statement of charges with a District Court Commissioner.‘” (Id.). “The Commissioner is then tasked with examining the affidavit and issuing a statement of charges or, in the absence of probable cause, denying the application.” (Id., at 81). “Ms. Borkowski submitted sworn applications for statements of charges with District Court Commissioner John Robey.” (Id.). Plaintiffs allege that Defendants Dever and Montgomery “improperly directed Commissioner Robey to deny the applications for statements of charges.” (Id.).
“Ms. Borkowski sought again to avail herself of a neutral judicial officer, Managing Commissioner Colleen Ellingson, who charged Ms. Borkowski‘s assailants with ‘first degree rape, second degree sexual assault, third degree sexual offense, second degree assault, fourth degree sexual contact, and perverted practice.‘” (ECF Nos. 51, at 13; 21, at 82). “The summonses were sent out the next day, to be served on the three (3) assailants.” (ECF No. 21, at 82). “The summonses have yet to be served[,]” however. (Id., at 83). Instead, Plaintiffs allege that Defendant Kristin Burrows, a BCPD detective assigned to the special victims team, “contacted the Baltimore County police officer in charge of serving the summonses and instructed him not to serve the three [] men.” (Id.). “Ms. Borkowski received a subpoena to testify dated March 21, 2018.” (Id.). Plaintiffs further state that Baltimore County Administrative Commissioner Whitney “Wisniewski [] ‘sen[t] out a department-wide email instructing Commissioners not to act if they receive[] any further applications’ from Ms. Borkowski, and further ‘instructed Commissioners to forward [to her] any applications if submitted.‘” (Id., at 85). Plaintiffs allege that “[t]hese instructions were issued at the behest of [State‘s Attorney] Defendants Shellenberger, Dever, [and] Fox, [and Officer Defendants] Burrows and Tomas.” (Id.). Plaintiffs further state that “Defendants Shellenberger, Dever, and Fox [] ordered Defendants Burrows and Tomas [] ‘to tell Ms. Borkowski that she has to stop bringing these additional charges or they will file criminal abuse of process
“On April 18, 2018, Emily Borkowski, Anna Borkowski‘s sister, was accepted into the internship program at the Baltimore County State‘s Attorney‘s Office‘s Domestic Violence Section.” (Id., at 107). Plaintiff Borkowski alleges that “Defendant Fox admitted, in an email to Defendant[] Dever . . . , to having ‘stalked’ Anna Borkowski to ferret out any connection between Anna and Emily Borkowski.” (Id.). “On May 11, 2018, Emily Borkowski was fired.” (Id.). The second amended complaint states that “Defendants admitted that the retaliatory firing was in response to a purported accusation of ‘misconduct’ made by Anna Borkowski‘s attorney in a [state] court filing.” (Id.). Further facts will be discussed as relevant to the various legal issues.
II. Procedural Background
Plaintiffs commenced this action by filing a complaint on September 10, 2018. (ECF No. 1). Plaintiffs then filed an amended complaint on October 17, 2018 (ECF No. 5) and a second amended complaint on December 7, 2018 (ECF No. 21). Defendants filed four separate motions to dismiss the second amended complaint — Defendant Hunton on January 11, 2019 (ECF No. 26); State‘s Attorney Defendants on January 14, 2019 (ECF No. 29); County Defendants on February 7, 2019 (ECF No. 45); and University Defendants on February 7, 2019 (ECF No. 46). Plaintiffs responded in opposition to each motion to dismiss — to Defendant Hunton on March 11, 2019 (ECF No. 49); to County Defendants on April 1, 2019 (ECF No. 51); to State‘s Attorney Defendants on April 1, 2019 (ECF No. 52); and to University Defendants on April 1, 2019 (ECF No. 53). Defendants replied — Defendant Hunton on March 25, 2019 (ECF No. 50); University Defendants on May 30, 2019 (ECF No. 63); State‘s Attorney Defendants on May 31, 2019 (ECF No. 64); and County Defendants on May 31, 2019 (ECF No. 65). Defendant Hunton and University Defendants filed motions to seal exhibits containing sensitive information on January 11, 2019 (ECF No. 28), and February 7, 2019 (ECF No. 48).
All individual Defendants are being sued both in their individual and official capacities. (ECF No. 21, at 18). The complaint alleges the following twenty counts: (Count I) Equal protection violations under
Plaintiffs seek class certification under
III. Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm‘rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.‘” Iqbal, 556 U.S. at 679 (quoting
“In deciding a Rule 12(b)(6) motion, the court will consider the facts stated in the complaint and the documents attached to the complaint.” Abadian v. Lee, 117 F.Supp.2d 481, 485 (D.Md. 2000). The court may also consider documents referred to in the complaint and relied upon by plaintiff in bringing the action.” Id. (citing Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748, 749 (D.Md. 1997), aff‘d, 151 F.3d 180 (4th Cir. 1998)). When doing so, the court need not convert a Rule 12(b)(6) motion to dismiss to one for summary judgment so long as it does not consider matters “outside the pleadings.” See
University Defendants attached thirty-three exhibits, Defendant Hunton attached four exhibits, and County Defendants attached nine exhibits, to their respective motions or papers. Plaintiffs do not challenge the authenticity of any attached documents. Only those exhibits that are integral to and relied on in the second amended complaint will be considered. Thus, UMBC‘s policies, investigation reports and adjudications of the various sexual assault allegations filed by Plaintiffs with UMBC, and UMBC‘s Clery Reports may properly be considered. The remaining exhibits will be excluded from consideration.
IV. Analysis
Plaintiffs’ verbose complaint, Defendants’ multiple motions to dismiss, and the parties’ papers, excluding exhibits, total over five hundred pages. In this wealth of words, the parties argue past each other and fail directly to address some of the central issues in this case. The sheer volume of factual allegations and legal issues
A. Group Pleadings
Plaintiffs bring three claims on behalf of all Plaintiffs against all twenty-two Defendants. These claims are Count I, equal protection violations under
Defendants are correct to question Plaintiffs’ group pleading. Judge Titus explained the fault of group pleading in Proctor v. Metro. Money Store Corp., 579 F.Supp.2d 724, 744 (D.Md. 2008):
At best, such pleading amounts to a conclusory allegation that . . . [each Defendant] [was] somehow responsible for the wrongful conduct[.] At worst, the repeated refrain that all three individuals committed each and every act must be read as an allegation that one of the three did each act, an assertion that amounts to speculation and which is deficient under [Bell Atl. Corp. v. ] Twombly[, 550 U.S. 544 (2007)].
Regardless, even if Plaintiffs were able to assign specific names responsible for these allegations, Plaintiffs have not sufficiently pleaded a claim for conspiracy under these counts. In Count I, all Plaintiffs allege that all Defendants violated
B. The Baltimore County Police Department
Defendants argue that the Baltimore County Police department should be dismissed as a Defendant. (ECF No. 45-1, at 18). Plaintiffs do not contest this point. “[T]he Baltimore County Police Department . . . [is not] sui juris. The Police Department is simply an agency of Baltimore County[.]” James v. Frederick Cty. Pub. Schs., 441 F.Supp.2d 755, 758 (D.Md. 2006) (quoting Strebeck v. Balt. Cty. Police Dep‘t, No. 05-cv-2580-JFM, 2005 WL 2897932, at *1 (D.Md. Oct. 17, 2005)). Accordingly, Defendant
Baltimore County Police Department will be dismissed as a Defendant.
C. Eleventh Amendment Immunity2
The Eleventh Amendment bars suits in federal court for monetary damages against a state or state officials acting in their official capacity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003); Lewis v. Bd. of Educ. of Talbot Cty., 262 F.Supp.2d 608, 612 (D.Md. 2003). Three exceptions exist to a state‘s sovereign immunity. First, a state may waive its immunity and consent to suit in federal court. Green v. Mansour, 474 U.S. 64, 68 (1985). Although the State of Maryland has waived its sovereign immunity for certain types of actions brought in state court pursuant to the Maryland Tort Claims Act, see
1. University Defendants
The University Defendants state that Defendants UMBC, Board of Regents, and UMBCPD are “immune from claims made pursuant to
“[T]he University of Maryland is ‘an arm of the State partaking of the State‘s Eleventh Amendment immunity.‘” Bickley v. Univ. of Md., 527 F.Supp. 174, 181 (D.Md. 1981) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Similarly, individuals sued in their official capacity as state agents are entitled to the same immunity. As a general matter, the Eleventh Amendment “does not bar suits for damages against state officers, so long as those officers are sued in their individual capacities.” Sales v. Grant, 224 F.3d 293, 297 (4th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, (1985).
Determining whether an entity is synonymous with the state is not always an easy endeavor. The nature of the entity and its relationship with the state are critical to a determination of the entity‘s sovereign immunity under the Eleventh Amendment. The primary factor to be considered is whether a judgment against the governmental entity would be paid from the state‘s treasury. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994). Generally, if the judgment would be paid from the state treasury, the inquiry is at an end. Id. at 49. If the judgment would not be paid from the state treasury, the factors to be considered in determining whether suit against the entity would nonetheless be an affront to the State‘s “sovereign dignity” are “(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity‘s concerns — whether local or statewide — with which the entity is involved; and (3) the manner in which State law treats the entity.” Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 224 (4th Cir. 2001). If the judgment would not be paid from the state treasury, the “sovereign dignity” factors may sufficiently tie the entity to the state so that suit against the entity would amount to suit against the state. Id.
The University Defendants assert that Defendants UMBC, Board of Regents, and UMBCPD are immune from suit because “Congress has not abrogated States’ Eleventh Amendment immunity in connection with
The Board of Regents and UMBC, as a constituent institution of the University System of Maryland, are considered instrumentalities of the State for immunity purposes. See, e.g.,
Accordingly, Defendants UMBC, BOR, UMBCPD and the individual University Defendants in their official capacities will be dismissed.
2. State‘s Attorney Defendants
As discussed above, individuals sued in their official capacity as state agents are entitled to Eleventh Amendment immunity. A State‘s Attorney is, by definition, a “State Official.”
D. Absolute Prosecutorial Immunity
The State‘s Attorney Defendants argue that they are “entitled to absolute immunity from suit for the plaintiffs’ claims that they engaged in unlawful behavior, because the decision regarding whom to prosecute is a core function of their roles as advocates for the State.” (ECF No. 29-1, at 8). Plaintiffs insist that the State‘s Attorney Defendants’ actions were “ultra vires, outside of the law, and they are not entitled to . . . protection[.]” (ECF No. 52, at 17). Plaintiffs specifically allege the following conduct as outside the realm of prosecutorial immunity: “[d]estroying evidence, threatening victims, and extra-territorial intimidation[.]” (Id., at 18). The State‘s Attorney Defendants do not respond to Plaintiffs’ argument against absolute immunity.
“[P]rosecutors are absolutely immune from liability under
The State‘s Attorney Defendants fall short of showing that their actions were prosecutorial in nature. These Defendants merely argue that all of their actions “relate to the exercise of a prosecutor‘s judgment about which cases to prosecute and against which individuals,” and make no effort to differentiate the nature of the functions performed. (ECF No. 29, at 10). Thus, they have not established that they are entitled to absolute prosecutorial immunity.
E. Qualified Immunity
The County Defendants and the State‘s Attorney Defendants argue that they are entitled to qualified immunity. (See ECF Nos. 45-1, at 25-30; 29-1, at 12-16). Qualified immunity is an affirmative defense to
F. 42 U.S.C. § 1983
Plaintiffs allege five remaining claims predicated under
As succinctly stated by Judge Hollander:
To state a claim under
§ 1983 , a plaintiff must allege (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a “person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997). The phrase “under color of state law” is an element that “is synonymous with the more familiar state-action requirement—and the analysis for each is identical.” Philips v. Pitt Cty. Mem‘l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982)).
“Section 1983 also requires a showing of personal fault based upon a defendant‘s own conduct.” Id. at 20 (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)) (stating that for an individual defendant to be held liable pursuant to
1. Equal Protection
Plaintiffs allege in Counts V, VI, and XX that Defendants’ “acts . . . prevent[ed] [Plaintiffs] . . . from enjoying equal protection under the law.” (See, e.g., ECF No. 21, at 106). Defendants argue that Plaintiffs’ equal protection claims must fail because “there is no class ‘similarly situated’ to these Plaintiffs and” a discriminatory purpose “is absent in this case[.]” (See, e.g., ECF No. 45-1, at 28, 49).
“To succeed on an equal protection claim, a plaintiff must . . . demonstrate that [s]he has been treated differently from others with whom [s]he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). “Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id. Courts apply different tiers of scrutiny depending on the classification the law makes. See id. at 654-55. Gender-based classifications are subject to intermediate scrutiny, meaning that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976).
Plaintiffs allege the following with regard to an equal protection claim under the enumerated counts:3
Defendants followed written and/or unwritten policies, and thus afforded less protection to female victims of sexual assault than to victims of other crimes.
. . .
[Defendants] [t]reat sexual assault cases involving female victims with less urgency and importance than that afforded to other types of violent crimes[.]
. . . [Defendants] [i]nadequately staff the investigation, processing, and prosecutions of sexual assault cases involving female victims[.]
. . .
[Defendants] [t]reat female victims of sexual assault with less respect and devote less attention to their cases than to cases involving male victims, as applied to both sexual assaults and other crimes;
. . .
[Defendants] [i]ntimidate and harass victims of sexual assault through illegal means, to discourage and conceal the reporting of sexual assault crimes[.]
. . .
Defendants subjected Ms. Borkowski to a deprivation of her right to equal protection in that the investigation of her sexual assault demonstrated deliberate indifference to crimes against her as a woman. The investigation was not carried out with the same vigor and zeal as the investigation of other crimes. The investigation was carried out with the specific intent of obstructing and denying Ms. Borkowski‘s civil rights, as part of their broader scheme to suppress the number of viable complaints of sexual assault in Baltimore County.
. . .
Defendants acted to ensure that female victims of sexual assault were less likely to have their cases investigated than victims of other crimes.
. . .
The [investigative] irregularities were part of an intentional effort by Defendants Hunton and UMBC to manipulate the outcome and conceal complaints of sexual assault, to the benefit of Defendant UMBC.
. . .
The particular circumstances of Defendant UMBC‘s investigation, including the pre-ordained conclusions crafted by Defendant Hunton, indicate that gender bias was a motivating factor behind the erroneous findings.
(ECF No. 21, at 99-102, 108, 110-11, 133).
Here, Plaintiffs fail to provide any sufficient, non-conclusory, allegations that they were treated differently than similarly situated individuals. Notably, Plaintiffs do not allege any facts to support an inference that the investigative processes were the result of gender discrimination. Further, Plaintiffs fail to identify a discriminatory intent on behalf of any Defendant. “Plaintiffs are not required as a matter of law to point to a similarly situated comparator to succeed on a discrimination claim.” Haywood v. Locke, 387 F.App‘x 355, 359 (4th Cir. 2010); Bryant v. Aiken Reg‘l Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir. 2003) (same). “Proof of . . . discriminatory intent or purpose[,]” however, “is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239 (1976). “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Under this standard, it is appropriate to look behind the stated reasons for state action into circumstantial evidence to find proof of discriminatory motivation, including:
-
a decision‘s historical background “if it reveals a series of official actions taken for invidious purposes;” - “[t]he specific sequence of events leading up to the challenged decision;”
- “[d]epartures from the normal procedural sequence;”
- “[s]ubstantive departures . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached;” and,
- “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”
Arlington Heights, 429 U.S. at 267-68.
“While it is true that discriminatory impact, if shown, may be probative (though not dispositive) on the issue of intent . . . [Plaintiffs‘] statistical evidence in this case is not . . . probative of discriminatory impact.” Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 823 (4th Cir. 1995). For example, the second amended complaint states that between 2009 and 2014, 34% of reports of rape and sexual assault were classified as unfounded. (ECF No. 21, at 26). Plaintiffs go on to state how this data is a “statistical impossibility” and shows that “Defendants were engaged in improper practices.” (Id., at 27). Plaintiffs further allege that “female victims of sexual assault [are] less likely to have their cases investigated than victims of other crimes.” (Id., at 111). Plaintiffs do not, however, provide how many of those reports were made by female victims opposed to male victims, the gender percentages as to victims of other crimes, or any other useful comparison. Plaintiffs do not directly address their deficiencies of discriminatory evidence but rather state that “91% of sexual assault victims are women[]” and that “Defendants’ outdated, hostile attitudes towards women, women‘s roles, and women‘s sexuality were the underlying causes of Defendants’ unconstitutional behavior.” (ECF No. 51, at 22). Further, Plaintiffs do not allege, in a non-conclusory manner, a history of invidious decision-making, departures from the normal sequence, substantive departures, or contemporary statements that reveal a discriminatory motive. Plaintiffs evidence, at best, supports their theory of Defendants’ actions: Defendants “manipulate crime data to avoid investigating (and making public) reports of rape and sexual assault” (ECF No. 21, at 21) because “[a]ll Defendants have or had professional, personal, or political self-interests in statistics that reflect a low crime rate in Baltimore County” (id., at 22). Plaintiffs state that these motives stem from “internal and external pressure to lower reports of sexual assault crimes and to maintain high ‘clearance rates’ in their jurisdictions, precincts, and areas of responsibility.” (Id.). “The underreporting enhanced their professional standing and furthered their personal self-interests.” (Id.). If true, these allegations are troubling, but fail to state a discriminatory purpose. Plaintiffs’ gender discrimination claims more aptly fit a disparate impact theory, which is not viable under
Plaintiff Borkowski and class Plaintiffs allege that the State‘s Attorney Defendants and Defendants Baltimore County, Montgomery, Tomas, Burrows, Dorfler, Johnson, and Sheridan deprived them of their first amendment rights. Specifically, Plaintiffs allege that those Defendants interfered with “Ms. Borkowski‘s right to present sworn testimony to a Maryland District Court Commissioner[,]” that “she has the right to be free from retaliation by a public official for the exercise of her rights[,]” and that “Defendants’ retaliatory actions adversely affected Ms. Borkowski and other [c]lass [m]embers’ constitutionally protected speech in that they were intimidated from testifying.” (ECF No. 21, at 102-03). The complaint does not outline, in count II, precisely what Ms. Borkowski contends were the retaliatory actions, or by which Defendant. As outlined above, the second amended complaint, beginning at paragraph 459, recited the allegations beginning when Ms. Borkowski filed an application for a statement of charges with a District Court Commissioner on March 14, 2018. She includes only some of the Defendants by name: Defendants Montgomery, Dever, Burrows, Tomas, Shellenberger, and Fox.
The State‘s Attorney Defendants argue that “Ms. Borkowski cannot assert a federal claim against the [State‘s Attorney] Defendants for failing to investigate or prosecute her case or for dismissing the charges that she successfully filed (on March 21, 2018)[]” and that “Ms. Borkowski‘s conduct in filing successive applications for charges is not ‘protected speech’ under the First Amendment[]” and “may rise to the level of harassment.” (ECF No. 64, at 9). The County Defendants similarly argue that Plaintiff Borkowski cannot assert a claim “to compel a criminal investigation
or prosecution[]” and that “[f]iling successive applications for charges is not “protected speech” . . . [but] is harassment.” (ECF No. 45-1, at 30-31).
The parties, again, fail to address each other‘s arguments or provide a proper legal framework to analyze this first amendment issue. Defendants argue that “no federal appellate court . . . has recognized that there is a federally enforceable right for the victim to have criminal charges investigated at all, let alone with vigor or competence.” (ECF No. 29-1, at 14) (quoting Walker v. Schmoke, 962 F. Supp. 732, 733 (D. Md. 1997)). Plaintiffs ignore Defendants’ arguments and reference Sec‘y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984), arguing that “Defendants’ conduct, directed at Ms. Borkowski and otherwise, was . . . clearly calculated to have a chilling effect on women who might avail themselves of their right to speak about their sexual assaults.” (ECF No. 52, at 29). They claim to have “plausibly stated a claim that female sexual assault victims of reasonable firmness will be unwilling to speak out against these Defendants and their tactics.” Id.
“A cognizable First Amendment retaliation claim requires a plaintiff to show: (1) “that [plaintiff‘s] speech was protected“; (2) “defendant‘s alleged retaliatory action adversely affected the plaintiff‘s constitutionally protected speech“; and (3) “a causal relationship exists between [plaintiff‘s] speech and the defendant‘s retaliatory action.” Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685–86 (4th Cir. 2000)).
Filing an application for a statement of charges likely is protected by the First Amendment, either under the petition or the speech clause. Borough of Duryea v. Guarnieri, 564 U.S. 379, 382 (2011); Lane v. Franks, 573 U.S. 228, 238-39 (2014). Certainly, whatever actions were taken by Defendants as a result of the filing of the applications were “caused” by the filing. The second element is more problematic in this circumstance. Judge Hazel has summarized the case law:
[T]he key inquiry is “whether a similarly situated person of “ordinary firmness” reasonably would be chilled by the government conduct in light of the circumstances presented in the particular case.” The Balt[.] Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006)(citation omitted.) This determination is an objective one, and a plaintiff “need not actually be deprived of . . . First Amendment rights in order to establish First Amendment retaliation.” Garcia [v. Montgomery Cty., Maryland, 145 F. Supp. 3d 492 (D. Md. 2015)] at 515 (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The Fourth Circuit has described this process as a “fact intensive inquiry,” instructing district courts to focus on four factors: “[1] the status of the speaker, [2] the status of the retaliator, [3] the relationship between the speaker and the retaliator, and [4] the nature of the retaliatory acts.” Suarez, 202 F.3d 676 at 686.
Kimberlin v. Frey, No. 13-cv-3059-GJH, 2017 WL 3141909 *9 (D. Md. July 21, 2017).
The second amended complaint lacks sufficient precision in Count II to allow it to proceed in its present form. For example, some of the Defendants who are sued in this count are not even mentioned in the fact section related to the filing of applications for statement of charges. Furthermore, to the extent that a prosecutor has discretion to decide how to handle charges, actions relating to those decisions would not adversely affect the protected speech. Here, however, the allegations concerning some of the Defendants’ conduct appear to go beyond simply declining to investigate or pursue charges, such as visiting Ms. Borkowski‘s home and threatening criminal action against her if she did not desist. Whether Plaintiff Borkowski‘s successive filing of charges constitutes harassment cannot be determined based on the allegations in the complaint.
Plaintiffs also allege that Defendants Baltimore County, Johnson, and Sheridan “failed to train and/or supervise . . . Defendants in the proper conduct of an investigation and were deliberately indifferent to their subordinates’ violations of women[]s[‘] rights.” (ECF No. 21, at 104). Defendants argue that “Plaintiffs do not plead sufficient facts to support supervisory liability under [§] 1983.” (ECF No. 45-1, at 40).
In a
To state a
The Fourth Circuit has cautioned that while “[t]he substantive requirements for proof of municipal liability are stringent[,]” “[§] 1983 claims are not subject to a heightened pleading standard paralleling the rigors of proof demanded on the merits.” Jordan by Jordan, 15 F.3d at 338 (citations and internal quotation marks omitted). Instead, “a [§] 1983 plaintiff seeking to impose municipal liability must satisfy only the usual requirements of notice pleading specified by the Federal Rules.” Id. at 339. Consequently, although Monell does not impose heightened pleading requirements above the basic “short and plain statement” requirement of Rule 8(a), Plaintiffs still must adequately allege a County policy or custom that proximately caused the deprivation of their rights. Id. at 338; see Peters v. City of Mount Rainier, No. 14-cv-00955-GJH, 2014 WL 4855032, at *4 (D. Md. Sept. 29, 2014).
The second Supervisory Officer Defendant, Terrence Sheridan, has been the Chief of Police since January 31, 2017. (Id., at 15). Defendant Sheridan, along with Defendant Johnson and others, directed the destruction of SAEKs within 90 days, before the retention law changed. (Id., at 36–37). Defendant Sheridan responded to a 2016 audit by the Maryland Coalition Against Sexual Assault by announcing reforms in the handling of sexual assault reports. (Id., at 31, 47). Plaintiffs further allege that Defendant Sheridan acted to support the strategies of the State‘s Attorney‘s Office to undermine these reforms. (Id., at 48). Defendant Sheridan, along with Defendant Shellenberger, “subverted” former Commissioner Johnson‘s promise in 2016 to “take a fresh look” at unspecified investigations from 2013, 2014, and 2015 that had been marked as “unfounded.” (Id., at 30, 98).
As to Baltimore County, Plaintiffs allege that “Defendant BCPD‘s Field Manual, which is an “order” issued pursuant to Defendant Johnson and Sheridan‘s authority, . . . provides for a totally different procedure for an “exceptional clearance disposition” in the case of a reported rape or sexual assault,” and that the “ex-clear” disposition was used “to conceal viable reports of sexual assault against women.” (ECF Nos. 21, at 42; 51, at 15).
Plaintiffs’ claims of supervisory liability do not withstand Defendants’ motions to dismiss. Plaintiffs make no specific allegations that Defendants Johnson and Sheridan had knowledge of the BCPD officers’ conduct. Plaintiffs do not argue that Defendants Johnson and Sheridan had any specific response to the BCPD officers’ conduct. Plaintiffs do not show how Defendants Johnson and Sheridan‘s failure to respond resulted in Plaintiffs’ injuries. Finally, Plaintiffs do not plead or prove that the field manual proximately caused the deprivation of their rights. Accordingly, Plaintiffs have failed to state a claim in Count II for failure to train and/or supervise as to Defendants Johnson, Sheridan, and Baltimore County. Count II will be dismissed.
Plaintiff Borkowski also brings Count IV against Defendant Baltimore County and the State‘s Attorney Defendants for “retaliation against Ms. Borkowski‘s family” resulting in a “deprivation of familial relations.” (ECF No. 21, at 106). Plaintiff Borkowski argues that “Emily Borkowski‘s firing [from the State‘s Attorney‘s Office] was a retaliatory, unjustified act, undertaken intentionally and maliciously to punish and further intimidate [Plaintiff] Borkowski for attempting to assert her right to free speech.” (Id., at 107).
G. 42 U.S.C. § 1985
Plaintiffs bring Counts III, VII, and XV under
(“Count III. . . Defendants violated
Soc‘y Without A Name, 655 F.3d at 346. In addition, the plaintiff “must show an agreement or a meeting of the minds by [the] defendants to violate the [plaintiff‘s] constitutional rights.” Poe, 47 F.3d at 1377 (internal quotation marks omitted). As discussed above, Plaintiffs fail to state an equal protection claim and further fail to allege a meeting of the minds to show conspiracy. “[P]laintiffs alleging unlawful intent in conspiracy claims under
conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to
injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror;
conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws[.]
“There are significant differences in the conduct covered by the two clauses. In the first clause of 1985(2), the ‘court of the United States’ refers only to federal courts, as defined in
A claim under the second clause of
Count VIII will similarly be dismissed. Viability of a
H. Fourth Amendment
Plaintiffs bring Count XIV against Defendants Baltimore County, Sheridan, Johnson, Shellenberger, Dever, Fox, and Richardson for unreasonable search and seizure in violation of the
The
According to the second amended complaint, the Plaintiffs signed consent forms authorizing GBMC to perform the SAFE exams and collect the SAEK evidence. (See id., at 58, 71, 124). The Fourth Circuit has explained that voluntary consent to a search by medical professionals turns on whether the consenters “understood that the request was not being made by medical personnel for medical purposes, but rather by agents of law enforcement for purposes of crime detection.” Ferguson v. City of Charleston, 308 F.3d 380, 397 (4th Cir. 2002). Plaintiffs do not allege that they understood the SAFE exams were conducted by medical personnel for medical purposes, rather than for crime detection. The fact that some SAEK evidence was destroyed after the examinations occurred does not obviate the consent given when they were conducted. Further, Plaintiffs do not allege that any individual Defendant played any role in the creation of GBMC‘s consent forms. All further allegations in the second amended complaint as to Defendants vitiating Plaintiffs’ consent are conclusory and fail to state a claim under Fed.R.Civ.P. 12(b)(6). Accordingly, Count XIV will be dismissed.
I. 20 U.S.C. § 1681
1. Sex discrimination
a. Plaintiffs Fegler, Frank, and Noland
In Counts IX, XVI, and XVII, Plaintiffs allege that Defendants Board of Regents, UMBC, and UMBCPD were deliberately indifferent to Plaintiffs Fegler‘s, Frank‘s, and Noland‘s sexual assault complaints in violation of Title IX of the Education Amendments of 1972 (“Title IX“),
The Fourth Circuit recently analyzed a university‘s potential liability under Title IX for student-on-student harassment:
Title IX is what is known as Spending Clause legislation, applying to schools and educational programs that receive
federal funds[.] Title IX provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in a federally funded program. Id. Given that statutory structure, the Court held in Davis [v. Monroe County Board of Education, 526 U.S. 629 (1999)], a school could be liable in damages for student-on-student sexual harassment only if it was “deliberately indifferent” to known acts of such harassment. 526 U.S. at 642, 649. The Court started with the well-established rule that recipients of federal funds must have adequate notice that they may be liable for certain conduct before a private damages action will be allowed. Id. at 640. It followed, the Court concluded, that schools may not be held liable under Title IX for the misconduct of their students, but only for their “own decision to remain idle in the face of known student-on-student harassment,” id. at 641 (emphasis in original)—“intentional conduct that violates the clear terms of the statute,” id. at 642. A negligent failure to learn of or react to its students’ independent actions, in other words, will not subject a school to liability, but “deliberate indifference to known acts of harassment” will. Id. at 642–43.
S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 75 (4th Cir. 2016) (emphasis in original). In another recent case, the Fourth Circuit concluded that plaintiffs sufficiently alleged a university‘s deliberate indifference to sexual harassment. Feminist Majority Found., 911 F.3d at 689. The allegations here lack the specificity and force of the Feminist Majority Foundation complaint, which “portray[ed] repeated instances of. . . students targeting and harassing [plaintiffs] with threats and other sex-based hostility[,]” “reported to the [u]niversity over many months” and responded to by the university merely “with two listening circles, a generic email, and by sending a campus police officer with a threatened student on one evening after particularly aggressive and targeted” messages. Id. at 689–691. In contrast, the entirety of Plaintiffs’ deliberate indifference argument is re-stated here:
Defendants were deliberately indifferent to Plaintiffs’ suffering. “No reasonable official in [Defendants‘] position would have believed doing nothing to reform [UMBC‘s] sexual harassment policies was lawful in light of the clearly established principle that deliberate indifference to sexual harassment is an equal protection violation.” Hill v. Cundiff, 797 F.3d 948, 985 (11th Cir. 2015). Defendants did not work to reform their policies until they got sued, despite several news articles exposing their practices. Sec. Am. Compl. ¶¶ 44-46, 102-03. Defendants were deliberately indifferent.
(ECF No. 53, at 24). Defendants counter, arguing that they “were not deliberately indifferent to” any Plaintiff‘s “complaint of student-on-student sexual harassment.” (ECF No. 46-1, at 34) (internal capitalizations omitted).
In Count IX, Plaintiffs allege that the Institutional Defendants were “deliberately indifferent to Ms. Frank‘s rape” because they hired “a biased investigator to pantomime an investigation into” Ms. Frank‘s complaint of sexual assault. (ECF No. 21 ¶ 681). The second amended complaint further states that after Plaintiff Frank filed her complaint of sexual assault, UMBC hired Defendant Hunton to investigate the complaint (id. ¶ 318), provided Plaintiff Frank an opportunity to participate in the investigation (id. ¶ 321),
In Count XVI, Plaintiffs allege that the Institutional Defendants were “deliberately indifferent to Ms. Fegler‘s rape” because they “conducted [a] sham investigation of” Ms. Fegler‘s complaint of sexual assault. (Id. ¶ 791). Defendants state, and Plaintiffs do not dispute, that “[a]s evidenced by the facts alleged, and the documents from the investigatory file of the complaint at issue, it is undisputed that UMBC conducted an investigation, held a hearing, and heard Ms. Fegler‘s appeal.” (ECF No. 46-1, at 35).
In Count XVII, Plaintiffs allege that the Institutional Defendants were “deliberately indifferent to Ms. Noland‘s rape” because they “hired a biased investigator to pantomime an investigation” of Plaintiff Noland‘s complaint of sexual assault. (ECF No. 21 ¶ 803). After Plaintiff Noland filed her complaint of sexual assault, UMBC hired Defendant Hunton to investigate the complaint (id. ¶ 371), provided Plaintiff Noland an opportunity to participate in the investigation (id. ¶ 372), provided her with the investigator‘s final report (id. ¶¶ 371-74), and provided her notice of the resolution of her complaint (id. ¶ 374). “Defendant Hunton concluded . . . that Ms. Noland was sexually assaulted” and UMBC imposed sanctions upon the assailant, although he was not expelled. (Id., at 68-69). Plaintiff Noland was provided an opportunity to appeal this decision. (ECF Nos. 21 ¶ 342; 26-5, at 22).
Although the process and results were not perfect, Plaintiffs have not met the bar for deliberate indifference. Plaintiffs’ argument that withholding punishment from two out of the four alleged assailants identified by Plaintiff Fegler was deliberately indifferent is not actionable under Title IX. “[I]t is not enough that a school has failed to eliminate student-on-student harassment, or to impose the disciplinary sanctions sought by a victim.” S.B. ex rel. A.L., 819 F.3d at 77. Moreover, “if a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference ‘subject[s]’ its students to harassment.” Davis, 526 U.S. at 644. Plaintiffs Fegler, Frank, and Noland have not shown that they have been subject to further harassment after the alleged deliberate indifference.
Plaintiffs further argue that Defendant Hunton‘s investigative choices to credit evidence or testimony from anyone but Plaintiff Frank was retaliation. (ECF No. 53, at 23). These allegations are accusatory and lack support. Thus, any retaliation claim under
In addition, Defendants argue that:
Ms. Fegler‘s Title IX claim in Count XVI is barred by the applicable three year statute of limitations. See Doe v. Bd. of Educ. of Prince George‘s Cty., 888 F.Supp.2d 659, 663 (D.Md. 2012) (statute of limitations for Title IX claims follows the applicable state personal injury statute of limitations, which in Maryland is three years). The final adjudication of Ms. Fegler‘s complaint was issued in February 2015. The Plaintiffs’ initial complaint in this matter, however, was not filed until September 2018. Thus, any claims related to UMBC‘s adjudication of Ms. Fegler‘s complaint are barred by limitations.
(ECF No. 46-1, at 36). Plaintiffs do not
b. Plaintiffs Borkowski and Hendler
In Count XIII, Plaintiffs allege that the Institutional Defendants “were deliberately indifferent to Ms. Borkowski and Ms. Hendler‘s rape[]s” because the Defendants “conducted only a sham investigation into” Ms. Borkowski‘s complaint of sexual misconduct. (ECF No. 21 ¶ 737). Defendants argue that, “because Ms. Borkowski and Ms. Hendler are both students of Towson University and not UMBC, they have no standing to make a Title IX gender discrimination claim against the Institutional Defendants.” (ECF No. 46-1, at 40).
Plaintiffs do not address their deficiencies under Davis, but rather argue that they have met the “constitutional requirement[s] placed on the federal courts to ensure that the courts only hear ‘Cases’ and ‘Controversies.‘” (ECF No. 53, at 24) (internal citation omitted). The second amended complaint states that “Ms. Borkowski was a former student and planned to apply to a UMBC program for a master‘s in social work.” (ECF No. 21 ¶ 722). This future intent, however, is not sufficient to support a current deprivation of an education program or activity. Thus, Plaintiffs Borkowski and Hendler cannot properly bring a claim for gender discrimination under
For these same reasons, Plaintiff Borkowski cannot state a claim for denial of educational opportunities under
2. Erroneous Outcome
In Count X, Plaintiffs assert an “erroneous outcome” claim based on gender discrimination under
Judge Bredar detailed this district‘s preferred legal standard to evaluate erroneous outcome claims:
To assess whether a school‘s disciplinary proceedings produced an erroneous outcome in violation of Title IX, courts typically apply a framework first introduced in Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). See, e.g., Mallory v. Ohio Univ., 76 Fed.App[‘]x. 634, 638–41 (6th Cir. 2003) (citing favorably to Yusuf); Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949, 961–62 (4th Cir. 1997) (same), rev‘d en banc on other grounds, 169 F.3d 820 (4th Cir. 1999); Doe v. Washington & Lee Univ., No. 6:14–CV–00052, 2015 WL 4647996, at *9–10 (W.D.Va. Aug. 5, 2015) (same). In an erroneous outcome case, “the claim is that the plaintiff was innocent and wrongly found to have committed an offense” on the basis of gender bias. Yusuf, 35 F.3d at 715.
To state a claim for erroneous outcome discrimination, a plaintiff must allege (1) “a procedurally or otherwise flawed proceeding“; (2) “that has led to an adverse and erroneous outcome“; and (3) “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Id. To satisfy the third element, a plaintiff must do more than merely rely on “a conclusory allegation of gender discrimination. . . .” Id. Sufficiently particularized allegations of gender discrimination “might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Id.
Doe v. Salisbury Univ., 123 F.Supp.3d 748, 765–66 (D.Md. 2015). Although erroneous outcome claims typically involve a plaintiff claiming innocence who was wrongly found to have committed an offense, an analysis will still be undertaken here.
Plaintiff Frank falls far short of pleading an erroneous outcome claim. Plaintiff Frank‘s only allegations of a flawed proceeding stems from Defendant Hunton‘s credibility determinations. Plaintiff Frank does not identify any procedural irregularities regarding the Institutional Defendants named under Count X. Further, Plaintiff Frank does not allege any statements by members of the disciplinary tribunal or patterns of decision-making that may lend to a proper inference of gender discrimination. Accordingly, Count X will be dismissed.
3. Denial of Educational Opportunities
Count XII alleges a denial of educational opportunity by Plaintiff Frank against Defendants Board of Regents, UMBC, and UMBCPD. Plaintiff Frank states that, after the alleged assault, she “lost one year of educational time” and “now attends a community college.” (ECF No. 21, at 120). Defendants argue that this claim is “duplicative of Plaintiffs’ claims of Title IX discrimination based on Ms. Frank‘s . . . allegations of student-on-student harassment[.]” (ECF No. 46-1, at 42). Plaintiffs argue that these claims are not duplicative, and state factual differences listed under each Count, but fail to provide any relevant legal citation or standard to analyze a deprivation of educational opportunities under
4. Failure to Prevent Sexual Harassment
In Count XI, Plaintiffs allege that UMBC knew that Ms. Frank‘s alleged assailant had previously “sexually assaulted others.” (ECF No. 21 ¶ 713). Defendants correctly point out, however, that Plaintiffs do not allege any details as to when the alleged assaults occurred, whom the assailant assaulted, the nature of the assaults, or who at UMBC knew about such alleged assaults. Plaintiffs do not contest these pleading deficiencies. These allegations fall far short of proper pleading. Thus, Count XI fails to state a claim upon which relief can be granted.
V. Motions to Seal
Defendant Hunton filed a consent motion to file two exhibits under seal on January 11, 2019. (ECF No. 28). The University Defendants similarly filed an unopposed motion to seal eleven exhibits on February 7, 2019. (ECF No. 48). All exhibits Defendants seek to seal contain intimately personal information. Defendants have provided proposed redactions where feasible and seek to seal exhibits entirely where sensitive information pervades the documents. Thus, the requirements of Local Rule 105.11 are satisfied. Accordingly, the motions to seal will be granted.
VI. Class Certification
Class certification will not be addressed at this time. “[A]nalysis of class compliance with Rule 23 is not appropriately undertaken on a motion to dismiss, but should be addressed in a motion pursuant to Rule 23(c)(1)(A).” Popoola v. Md-Individual Practice Ass‘n, Inc., 230 F.R.D. 424, 433 (D.Md. 2005) (citing 7B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1798, at 226–27 & n.23 (3d ed. 2005) (citing cases)).
VII. Conclusion
For the foregoing reasons, the motions to seal filed by Defendant Hunton and the University Defendants will be granted, and the motions to dismiss filed by Defendant Hunton, the University Defendants, the County Defendants, and the State‘s Attorney Defendants will be granted. Some of the defects in Plaintiffs’ second amended complaint cannot be remedied, and Plaintiffs have already amended twice, but it is not entirely clear that a more modest, focused, complaint would be futile. Accordingly, they will be granted time to file a further amendment. A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge