# Borkowski v. Dever

> District Court, D. Maryland · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10202605

## Case

- **Court:** District Court, D. Maryland
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

:
ANNA BORKOWSKI, et al.
:

v. : Civil Action No. DKC 18-2809

:
BALTIMORE COUNTY, MARYLAND,
et al. :

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) 42 U.S.C. § 1983, civil
action for deprivation of equal protection and first amendment
rights; (2) 42 U.S.C. § 1985, conspiracy to interfere with civil
rights; (3) 42 U.S.C. § 1986, action for neglect to prevent
conspiracy to interfere with civil rights; (4) 20 U.S.C. § 1681,
sex discrimination, failure to prevent sexual harassment,
deprivation of educational rights, and erroneous outcome; and (5)
the Fourth Amendment to the United States Constitution,
unreasonable search and seizure.
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.

2
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 in Baltimore County and on the
UMBC campus.” (ECF No. 21, at 24). Plaintiffs further state that
“Defendants followed written and/or unwritten policies, and . . .
afforded less protection to female victims of sexual assault than
to victims of other crimes.” (Id., at 99).
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,
3
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
4
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
5
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 UMBC[.]” (ECF No. 21, at 68). “Ms. Noland

reported her assault to UMBC.” (Id.). Defendant Hunton
investigated the sexual assault and concluded “that Ms. Noland was
sexually assaulted[.]” (Id.). “Defendant Hunton recommended that
UMBC not expel Ms. Noland’s assailant.” (Id., at 69). “Based on
that recommendation, UMBC imposed one ‘counseling session’ as a
penalty for Ms. Noland’s assailant.” (Id.). Plaintiffs allege
that, as a result of the sexual assault and investigation, “Ms.
Noland was forced to leave her laboratory job for another campus.”
(Id., at 130).
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
6
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
7
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
8
has to stop bringing these additional charges or they will file
criminal abuse of process charges against her[]’” and “to ‘stop
going to [the] Comm[issioner]’ or she w[ill] face ‘criminal
charges.’” (Id., at 86-87). Plaintiffs allege that “three []
officers arrived at Ms. Borkowski’s Baltimore City residence,” but

she was not home. (Id., at 87). “Defendants Burrows and Tomas
[then] contacted Ms. Borkowski directly on her cell phone[,]” which
she “had provided. . . as part of the rape investigation.” (Id.,
at 88). “When Ms. Borkowski’s attorney learned of” this contact,
“he offered to make Ms. Borkowski available to Defendants Tomas
and Burrows that afternoon, in his office.” (Id.). Plaintiffs
assert that “[a]fter Defendants Tomas and Burrows conferred with
. . . Defendants Dever, Shellenberger, and Fox, Defendants Burrows
and Tomas were ordered not to meet with Ms. Borkowski because [the
state’s attorney for Baltimore County,] ‘Scott [Shellenberger,]
said not to go b[e]c[ause] of attorney.’” (Id., at 88-89).
Plaintiffs state that “[t]he next day, March 23, 2018, Defendant

Dever . . . file[d] a ‘Motion to Dismiss,’ [via email] without a
certificate of service, in the criminal actions against the
assailants.” (Id., at 89).

9
“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
10
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 42 U.S.C. § 1983 by all Plaintiffs
against all Defendants; (Count II) deprivation of first amendment

rights under 42 U.S.C. § 1983 by Plaintiff Borkowski and class
Plaintiffs against Defendants Baltimore County, BCPD, Montgomery,
Tomas, Burrows, Dorfler, Johnson, Sheridan, and State’s Attorney
Defendants; (Count III) conspiracy to interfere with civil rights
11
under 42 U.S.C. § 1985 by Plaintiff Borkowski against Defendants
Baltimore County, BCPD, Shellenberger, Dever, Fox, Montgomery,
Tomas, Lane, Brady, Dorfler, and Burrows; (Count IV) deprivation
of equal protection and retaliation against Ms. Borkowski’s family
under 42 U.S.C. § 1983 by Plaintiff Borkowski against Defendants

Baltimore County, BCPD, and State’s Attorney Defendants; (Count V)
deprivation of equal protection under 42 U.S.C. § 1983 by Plaintiff
Borkowski against Defendants Shellenberger, Dever, Fox, Burrows,
Tomas, Dorfler, Lane, and Montgomery; (Count VI) deprivation of
equal protection under 42 U.S.C. § 1983 by Plaintiff Frank against
Defendants Baltimore County, BCPD, Dever, Shellenberger,
Montgomery, Sparks, Hrabowski, Hunton, and Dillon; (Count VII)
conspiracy to obstruct justice under 42 U.S.C. § 1985 by Plaintiff
Frank against Defendants Baltimore County, BCPD, Hrabowski,
Sparks, Dillon, Johnson, Lee, Lane, Shellenberger, and Dever;
(Count VIII) action for neglect to prevent conspiracy to obstruct
justice under 42 U.S.C. § 1986 by Plaintiffs Borkowski, Hendler,

Frank, and class Plaintiffs against Defendants Shellenberger,
Dever, Fox, Burrows, Tomas, Montgomery, Johnson, Lane, Sheridan,
and Dorfler; (Count IX) sex discrimination and deprivation of
educational access under 20 U.S.C. § 1681 by Plaintiff Frank
12
against Defendants Board of Regents, UMBC, and UMBCPD; (Count X)
erroneous outcome under 20 U.S.C. § 1681 by Plaintiff Frank against
Defendants Board of Regents and UMBC; (Count XI) failure to prevent
sexual harassment under 20 U.S.C. § 1681 by Plaintiff Frank against
Defendants Board of Regents, UMBC, and UMBCPD; (Count XII) denial

of educational opportunities under 20 U.S.C. § 1681 by Plaintiffs
Borkowski and Frank against Defendants Board of Regents, UMBC, and
UMBCPD; (Count XIII) sex discrimination and deprivation of
educational access under 20 U.S.C. § 1681 by Plaintiffs Borkowski
and Hendler against Defendants Board of Regents and UMBC; (Count
XIV) unreasonable search and seizure in violation of the Fourth
Amendment by Plaintiffs Borkowski, Hendler, Frank, and the
“Invasive Testing Subclass” against Defendants Baltimore County,
BCPD, Sheridan, Johnson, and State’s Attorney Defendants; (Count
XV) conspiracy to interfere with civil rights under 42 U.S.C.
§ 1985 by Plaintiffs Fegler, Frank, and class Plaintiffs against
Defendants BCPD, Dever, Shellenberger, Fox, Hrabowski, Tomas,

Burrows, Dillon, Brady, Montgomery, Sparks, and Sheridan; (Count
XVI) sex discrimination and deprivation of educational access
under 20 U.S.C. § 1681 by Plaintiff Fegler against Defendants UMBC,
Board of Regents, and UMBCPD; (Count XVII) sex discrimination and
13
deprivation of educational access under 20 U.S.C. § 1681 by
Plaintiff Noland against Defendants UMBC, Board of Regents, and
UMBCPD; (Count XVIII) conspiracy to obstruct justice under 42
U.S.C. § 1985 by all Plaintiffs and class members against all
Defendants; (Count XIX) action for neglect to prevent conspiracy

to obstruct justice under 42 U.S.C. § 1986 by all Plaintiffs and
class members against all Defendants; and (Count XX) deprivation
of equal protection under 42 U.S.C. § 1983 by Plaintiff Noland
against Defendants Hrabowski and Hunton.
Plaintiffs seek class certification under Fed.R.Civ.P. 23; an
entry of judgment finding Defendants jointly and severally liable
for monetary and punitive damages; an order enjoining Defendants
from “engaging in unconstitutional and illegal practices abridging
Plaintiffs’ and other[]s[’] civil rights and denying Plaintiffs[’]
and other[]s[’] educational opportunities[;]” and an award “to
Named Plaintiffs [of] reasonable costs and attorney[]s[’] fees[.]”
(ECF No. 21, at 133-134).

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
14
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 Fed.R.Civ.P.
8(a)(2)). Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
“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,
15
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 Fed.R.Civ.P. 12(d) (“If, on a
[12(b)(6) motion to dismiss], matters outside the pleadings are

presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”); Laughlin v.
Metro. Washington Airports Auth., 149 F.3d 253, 260–61 (4th Cir.
1998)(citing Rule 12(d)); Luy v. Balt. Police Dep’t, 326 F.Supp.2d
682, 688 (D.Md. 2004) (“The court may consider a document submitted
by the defendant in support of a motion to dismiss, however, ‘[if]
it was integral to and explicitly relied on in the complaint and
[if] the plaintiffs do not challenge its authenticity.’”) (quoting
Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212,
234 (4th Cir. 2004)).
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
16
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 likely contributes to this confusion.
As will be seen, Plaintiffs, at best, have masked meritorious
allegations by the overambitious pleading, and, at worst, have
simply failed to state any viable claim. The complaint will be
dismissed, albeit without prejudice, and Plaintiffs will have 21
days to file a more focused, perhaps modest, third amended
complaint.

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 42 U.S.C. § 1983; Count XVIII,
17
conspiracy to obstruct justice under 42 U.S.C. § 1985; and Count
XIX, action for neglect to prevent conspiracy to obstruct justice
under 42 U.S.C. § 1986. Defendants argue that “[t]hese Counts
constitute improper ‘group pleading’ or ‘shotgun pleading’ that do
not meet federal pleading requirements.” (ECF No. 45-1, at 51).

Plaintiffs argue that Counts I, XVIII, and XIX were pleaded as
“all Plaintiffs” against “all Defendants” because these claims
“are the only way [to] state claims for a conspiracy, in which all
Defendants participated, which harmed all Plaintiffs.” (ECF No.
53, at 14). Plaintiffs do not address the fact that Count I is
not a conspiracy claim.
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)].

18
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 42
U.S.C. § 1983 because “Defendants followed written and/or

unwritten policies, and thus afforded less protection to female
victims of sexual assault than to victims of other crimes.” (ECF
No. 21, at 99). In Count XVIII, Plaintiffs allege that “[a]ll
Defendants were part of a broader scheme, as alleged herein, to
deny female victims of sexual assault their civil rights.” (Id.,
at 130). When alleging a § 1985 conspiracy, “the plaintiff must
plead facts amounting to more than ‘parallel conduct and a bare
assertion of conspiracy. . . . Without more, parallel conduct
does not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply facts adequate
to show illegality.’” Williams v. Cheesecake Factory Rests., Inc.,
No. 15-cv-3700-ELH, 2016 WL 54799, at *3 (D.Md. Jan. 5, 2016)

(quoting A Soc’y Without A Name v. Virginia, 655 F.3d 342, 346 (4th
Cir. 2011)). Lastly, in Count XIX, Plaintiffs state that “[a]ny
Defendant or Defendants could have stopped or lessened the broader
scheme, as alleged herein.” (ECF No. 21, at 131). The remainder
19
of each count lodges accusatory and bald accusations that do not
squarely support a conspiracy amongst the twenty-two Defendants.1
“Such an approach falls short of that which is required to overcome
a motion to dismiss.” Thomas v. Maryland, No. 17-cv-1739-GJH,
2017 WL 6547733, at *6 (D.Md. Dec. 20, 2017). Accordingly, Counts

I, XVIII, and XIX will be dismissed, and those counts will not
further be discussed.
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

1 Plaintiffs cite Floyd v. City of New York, 959 F.Supp.2d
540 (S.D.N.Y. 2013) as an example of a successful group pleading.
In Floyd, however, no Defendant moved to dismiss for improper group
pleading, and the claim against all Defendants was voluntarily
dropped before trial. (See ECF No. 65, at 14-15).

20
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 MD. CODE, State Gov’t
§ 12–104, it has not waived its Eleventh Amendment immunity for
actions brought in federal court, see MD. CODE, State Gov’t § 12–
103(2). Second, immunity does not bar a suit against a state

2 The United States Court of Appeals for the Fourth Circuit
has not decided whether sovereign immunity is grounds for dismissal
for failure to state a claim under Rule 12(b)(6) or for lack of
subject matter jurisdiction under Rule 12(b)(1). Judges in this
district favor analysis under Rule 12(b)(1) because immunity
“functions ‘as a block on the exercise of that jurisdiction.’”
Gross v. Morgan State Univ., 308 F.Supp.3d 861, 865 (D.Md. 2018)
(quoting Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995)).
21
official when a plaintiff is seeking prospective relief to end a
continuing violation. Ex Parte Young, 209 U.S. 123, 155–56, 159
(1908). Finally, Congress may validly abrogate a state’s Eleventh
Amendment immunity, but it has not done so here. Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 55 (1996).
1. University Defendants

The University Defendants state that Defendants UMBC, Board
of Regents, and UMBCPD are “immune from claims made pursuant to 42
U.S.C. §§ 1983, 1985, and 1986” and that “the individual
Defendants[, Hrabowski, Sparks, and Dillon,] are immune from suit
in their official capacities.” (ECF No. 46-1, at 21–23).
Plaintiffs argue that “[t]he State of Maryland has waived any claim
to Eleventh Amendment immunity” as to any University Defendant
that is not the “University System of Maryland[.]” (ECF No. 53,
at 15-16).
“[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,
22
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
23
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 U.S.C. §§ 1983, 1985, and 1986[]” and that “Maryland has not
waived Eleventh [Amendment] Immunity for claims against its public
universities.” (ECF No. 46-1, at 21–22). As for the individual
Defendants, the University Defendants argue that “[t]o the extent
Plaintiffs are alleging that the Individual Defendants are liable
in their official capacities, the claims are barred by Eleventh
Amendment immunity.” (Id. at 22). Defendants argue that immunity
is proper because “State employees share in the State’s immunity
from being sued in federal court because a suit against the state

officials acting in their official capacities is a suit against
the State.” (Id.) (internal quotation marks omitted). Defendants
also state that they are not “persons” under § 1983. (Id.).
Plaintiffs counter, arguing that these Defendants have consented
24
to be sued and Defendant UMBCPD is not a state agency for Eleventh
Amendment purposes. (ECF No. 53, at 16-17). Plaintiffs do not
directly counter Defendants’ arguments as to the individual
Defendants, and only state that “even if they were entitled to
immunity for acts undertaken in their official capacities, they

are being sued in their individual capacities as well.” (ECF No.
53, at 17). Plaintiffs argue that suit is proper because
“Defendants were not acting within the scope of their
employment[.]” (Id.).
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.,
MD. CODE, Educ. § 12-102(a)(1)-(3) (The University System of
Maryland is “an instrumentality of the State” and “an independent
unit of State government.”); MD. CODE, Educ. § 12-101(b)(6)(ii)
(UMBC is one of the “constituent institutions” of the University
System of Maryland). Individual Defendants Hrabowski, Sparks, and

Dillon are similarly entitled to Eleventh Amendment immunity to
the extent they are being sued in their official capacities.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-102
(1984). Plaintiffs argue that UMBCPD is not a State agency
25
entitled to Eleventh Amendment immunity because it “is an entirely
local actor (limited to a small area within Baltimore County)” and
that there “is no statute [] creating a ‘UMBC-Police
Department[.]’” (ECF No. 53, at 17). Defendants argue that UMBCPD
is “a unit of UMBC that is entitled to partake in UMBC’s immunity.”

(ECF No. 63, at 8 n.2). According to the second amended complaint,
UMBCPD is “a security force maintained by Defendant UMBC[]” and
subject to the “supervisory power” of the UMBC President. (ECF No.
21, at 17). Thus, even if UMBCPD is not an instrumentality of the
state, the degree of control UMBC wields over it entitles it to
immunity.
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.” MD. CODE, Gen. Provisions § 5-101(ll)(5) (“‘State
official’ means. . . a State’s Attorney[.]”); see also MD. CODE,
State Gov’t § 12-101(a)(8) (“‘State personnel’ means. . . a State’s
26
Attorney of a county or Baltimore City, or an employee of an office
of a State’s Attorney[.]”). Plaintiffs’ arguments to the contrary
— that State’s Attorneys only act locally, “Maryland has not
obligated itself to reimburse State’s Attorneys for lawsuits
against them[,]” or that “Maryland does not expressly consider

State’s Attorneys and their employees arms of the State” — lack
proper support and do not overcome this definitional hurdle. (ECF
No. 52, at 13-16). Accordingly, the State’s Attorney Defendants
in their official capacities will be dismissed.
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

27
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
§ 1983 for their conduct in ‘initiating a prosecution and in
presenting the State’s case,’ insofar as that conduct is

‘intimately associated with the judicial phase of the criminal
process[.]’” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)) (internal
citations omitted). To determine whether particular actions
warrant absolute immunity, as opposed to only qualified immunity,
courts apply a “functional approach.” Buckley v. Fitzsimmons, 509
U.S. 259, 269 (1993). This approach “looks to ‘the nature of the
function performed, not the identity of the actor who performed
it[.]’” Id. (quoting Forrester v. White, 484 U.S. 219, 229
(1988)). “[T]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the function
in question.” Burns, 500 U.S. at 486. “The presumption is that

qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties.” Id. at
486-87.

28
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 § 1983 claims that “protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Assessing
qualified immunity requires a multi-step analysis with shifting
burdens of proof. “[T]he defendant bears the initial burden of
demonstrating that the conduct of which the plaintiff complains
29
falls within the scope of the defendant’s duties.” Henry v.
Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007) (citation and
internal quotation marks omitted). Once the defendant properly
asserts qualified immunity, “[t]he plaintiff bears the burden of
proof on the . . . question [of] whether a constitutional violation

occurred.” Id. at 377. If the plaintiff meets this burden, the
defendant then bears the burden of proof on the question of whether
the right in question was clearly established at the time of the
alleged misconduct. Feminist Majority Found. v. Hurley, 911 F.3d
674, 703–06 (4th Cir. 2018). As will be discussed, Plaintiffs have
not met their burden.
F. 42 U.S.C. § 1983

Plaintiffs allege five remaining claims predicated under 42
U.S.C. § 1983. These claims are: Count II, deprivation of first
amendment rights by Plaintiff Borkowski and class Plaintiffs
against Defendants Baltimore County, Montgomery, Tomas, Burrows,
Dorfler, Johnson, Sheridan, and the State’s Attorney Defendants in
their individual capacities; Count IV, deprivation of equal
protection and retaliation against Ms. Borkowski’s family by
Plaintiff Borkowski against Defendants Baltimore County and the
State’s Attorney Defendants in their individual capacities; Count
30
V, deprivation of equal protection by Plaintiff Borkowski against
Defendants Shellenberger, Dever, and Fox in their individual
capacities, as well as Defendants Burrows, Tomas, Dorfler, Lane,
and Montgomery; Count VI, deprivation of equal protection by
Plaintiff Frank against Defendants Dever and Shellenberger in

their individual capacities, Baltimore County, Montgomery, Sparks,
Hrabowski, Hunton, and Dillon; and Count XX, deprivation of equal
protection by Plaintiff Noland against Defendants Hrabowski and
Hunton.
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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988);
see Crosby v. City of Gastonia, 635 F.3d 634,
639 (4th Cir. 2011), cert. denied, 565 U.S.
823, 132 S.Ct. 112, 181 L.Ed.2d 37 (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
31
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, 102 S.Ct. 2744, 73
L.Ed.2d 482 (1982)).

Bost v. Wexford Health Sources, Inc., No. 15-cv-3278-ELH, 2018 WL
3539819, at *19 (D.Md. July 23, 2018).
“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 42 U.S.C. §
1983, the plaintiff must affirmatively show that the official acted
personally to deprive the plaintiff of his rights).
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
32
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

3 Although Count I will be dismissed as an improper group
pleading, the factual allegations set forth will still be
considered for this equal protection analysis.
33
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.

34
. . .

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
35
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;”
36
• “[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
37
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
38
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 § 1983. Ricci
v. DeStefano, 557 U.S. 557, 627 (2009) (The “equal protection
doctrine is of limited utility. The Equal Protection Clause . .

. prohibits only intentional discrimination; it does not have a
disparate-impact component.”). Thus, Plaintiffs have failed
sufficiently to plead an equal protection claim. Accordingly,
Counts V, VI, and XX will be dismissed.4
2. First Amendment Claims

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[,]”

4 Defendant Hunton’s briefing oversimplifies the state actor
issue. Regardless, the outcome of the equal protection analysis
in this case obviates the need to determine her status as a state
actor.
39
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
40
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’;
41
(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
42
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
43
allegations in the complaint. MD. CODE, Crim. Law § 3-803(a)
defines harassment: “A person may not . . . maliciously engage in
a course of conduct that alarms or seriously annoys the other[]
(1) with the intent to harass, alarm, or annoy the other; (2) after
receiving a reasonable warning or request to stop by or on behalf

of the other; and (3) without a legal purpose.” (emphasis added).
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).
Section 1983 imposes liability on “[e]very person who . . .
subjects, or causes to be subjected, any . . . person . . . to the
deprivation of any rights[.]” 42 U.S.C. § 1983. The statute
requires a showing of personal fault, whether based upon the

defendant’s own conduct or another’s conduct, in executing the
defendant’s policies or customs. See Monell v. Dep’t of Social
Servs. Of City of N.Y., 436 U.S. 658, 690 (1978); Vinnedge, 550
F.2d at 928 (requiring an affirmative showing that the official
44
charged acted personally in the deprivation of the plaintiff’s
rights). Moreover, an individual cannot be held liable under 42
U.S.C. § 1983 under a theory of respondeat superior. See Monell,
436 U.S. at 690; Love–Lane v. Martin, 355 F.3d 766, 782 (4th Cir.
2004) (no respondeat superior liability under § 1983).

In a § 1983 proceeding, supervisory officials may be held
culpable based on “‘a recognition that supervisory indifference or
tacit authorization of subordinates’ misconduct may be a causative
factor in the constitutional injuries they inflict on those
committed to their care.’” Baynard v. Malone, 268 F.3d 228, 235
(4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th
Cir. 1984)). Claims premised on supervisory liability must be
supported with evidence that: (1) “the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct
that posed a pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff;” (2) “the supervisor’s
response to that knowledge was so inadequate as to show deliberate

indifference to or tacit authorization of the alleged offensive
practices;” and (3) “there was an affirmative causal link between
the supervisor’s inaction and the particular constitutional injury

45
suffered by the plaintiff.” See Shaw v. Stroud, 13 F.3d 791, 799
(4th Cir. 1994) (internal quotation marks omitted).
To state a § 1983 claim against a county, a plaintiff must
allege that the action at issue was one that “executes a policy
statement, ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers[]” or that represents
informal governmental “custom.” Monell, 436 U.S. at 690–91.
Counties and other local governments cannot be held liable under
§ 1983 for injuries inflicted by their employees or agents based
on the theory of respondeat superior – that is, “for an injury
inflicted solely by its employees or agents.” Id. at 694; see
Austin v. Paramount Parks, Inc., 195 F.3d 715, 727–28 (4th Cir.
1999); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.
1982). “Section 1983 plaintiffs seeking to impose liability on a
municipality must, therefore, adequately plead and prove the
existence of an official policy or custom that is fairly
attributable to the municipality and that proximately caused the

deprivation of their rights.” Jordan by Jordan v. Jackson, 15
F.3d 333, 338 (4th Cir. 1994) (emphasis added) (citing Spell v.
McDaniel, 824 F.2d 1380, 1387-88 (4th Cir. 1987)); see City of

46
Canton v. Harris, 489 U.S. 378, 385 (1989); Carter v. Morris, 164
F.3d 215, 218 (4th Cir. 1999).
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 first Supervisory Officer Defendant, James Johnson, was
the Chief of Police from May 31, 2007 to January 31, 2017. (See
ECF No. 21, at 15). On September 9, 2016, Defendant Johnson
received an order from the County Executive to review how the BCPD
47
handles reports of rape that were marked “unfounded.” (Id., at
30). Defendant Johnson directed this review to occur. (Id.).
Defendant Johnson also pledged to take a fresh look at unspecified
investigations from 2013, 2014, and 2015 that were marked as
“unfounded.” (Id.). This “fresh look” never occurred. (Id.).

Plaintiffs allege that Defendants Johnson, BCPD, and Sheridan, at
the direction of State’s Attorney Defendants Shellenberger and
Dever, ordered the destruction of SAEKs within 90 days of
collection prior to a change in the retention law in 2017. (Id.,
at 36-37). “On January 9, 2017, Chief Johnson publicly voiced his
support for SAEK reform and a commitment to ensuring that victims
of sexual assault were treated with dignity.” (Id., at 31). “Two
days later, Chief Johnson was fired.” (Id.).
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
48
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’
49
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
“deprivation of equal protection 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).
The State’s Attorney Defendants argue that “[Plaintiff]
Borkowski lacks standing to sue for any alleged damages that her

sister may have suffered.” (ECF No. 64, at 9). The County
Defendants similarly argue that Plaintiff Borkowski lacks standing
to sue on behalf of her sister’s firing. (ECF No. 45-1, at 31-
32). Defendants are correct that Plaintiff Borkowski lacks
50
standing to collect damages on behalf of her sister’s firing. The
Fourth Circuit analyzed an analogous case in Smith v. Frye, 488
F.3d 263 (4th Cir. 2007). In Smith, the plaintiff brought a § 1983
claim alleging that his mother was fired in retaliation for the
plaintiff’s running for county clerk. See id. at 265-66. The

Fourth Circuit held that “[a]llowing [a relative] to collect for
emotional damages and humiliation resulting from [a family
member’s] discharge from her employment casts the net of possible
[§ 1983] liability too broadly.” Id. at 273-74. “[T]herefore, .
. . such emotional distress is insufficient as an Article III
injury in fact.” Id. at 274. Here too, Plaintiff Borkowski lacks
a sufficient injury in fact to bring suit predicated on her
sister’s firing. Accordingly, Count IV will be dismissed.
G. 42 U.S.C. § 1985
Plaintiffs bring Counts III, VII, and XV under 42 U.S.C. §
1985. Although not specified by subsection, these counts appear
to allege violations of subsection two.5 (See ECF No. 21, at 104

5 If these claims are predicated under subsection three,
Plaintiffs have failed to state a claim. To state a claim under
42 U.S.C. § 1985(3) a plaintiff must set forth the following:

51
(“Count III. . . Defendants violated 42 U.S.C. § 1985 by deterring,
by force, intimidation, or threat, . . . Ms. Borkowski, from
attending . . . court, or from testifying[.]”); id., at 111 (“Count
VII. . . Defendants conspired to coerce Ms. Frank into not
reporting her sexual assault to the police[.]”); id., at 126

(“Count XV. . . Defendants thus conspired, for the purpose of
impeding, hindering, obstructing, and defeating, the due course of
justice in Baltimore County”)). Defendants argue that
“Plaintiff[s’] conspiracy-based counts . . . each fail to state a
claim upon which relief can be granted[.]” (ECF No. 45-1, at 35).

(1) a conspiracy of two or more persons, (2)
who are motivated by a specific class-based,
invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment
of rights secured by the law to all, (4) and
which results in injury to the plaintiff as
(5) a consequence of an overt act committed by
the defendants in connection with the
conspiracy. Simmons v. Poe, 47 F.3d 1370,
1376 (4th Cir. 1995).

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.
52
“[P]laintiffs alleging unlawful intent in conspiracy claims
under § 1985 . . . [must] plead specific facts in a nonconclusory
fashion to survive a motion to dismiss.” Poe, 47 F.3d at 1377
(quoting Gooden v. Howard Cty., 954 F.2d 960, 969-70 (4th Cir.
1992) (en banc)). Section 1985(2) is divided into two separate

clauses. The first clause applies if two or more persons:
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;

18 U.S.C. § 1985(2). The second clause of § 1985(2) applies when
two or more persons:
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[.]

53
“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 28
U.S.C. § 451, and does not include state courts.” Kimberlin v.
Hunton & Williams LLP, No. 15-cv-723-GJH, 2, at *5 (D.Md. Mar. 29,
2016), aff’d, 671 F.App’x 127 (4th Cir. 2016); see Kush v. Rutledge,

460 U.S. 719, 724-25 (1983); Bloch v. Mountain Mission Sch., 1988
WL 45433, at *1 (4th Cir. 1988) (“the first half of § 1985(2), . .
. prohibits two or more persons from conspiring to deter by force,
intimidation, or threat, any party or witness from attending or
testifying truthfully in a federal court.”). “On the other hand,
the second part of § 1985(2) applies to state courts and requires
an allegation of class-based animus.” Hunton & Williams LLP, 2016
WL 1270982, at *5 (internal citations omitted); see Kush, 460 U.S.
at 726 (holding that “[t]he language requiring intent to deprive
of equal protection, or equal privileges and immunities, means
that there must be some. . . class-based, invidiously

discriminatory animus behind the conspirators’ action.”) (quoting
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (emphasis in
original)). Plaintiffs appear to rely on the second clause of
§ 1985(2) because the second amended complaint makes only
54
reference to Maryland state courts. (See, e.g., ECF No. 21, at
104) (“Defendants . . . conspired . . . to intimidate Ms. Borkowski
from giving testimony before a Maryland District Court
Commissioner.”).
A claim under the second clause of § 1985(2) will not survive

a motion to dismiss without a sufficient allegation of class-based
animus. As discussed above, Plaintiffs fail to state an equal
protection claim. Accordingly, Counts III, VII, and XV will be
dismissed.
Count VIII will similarly be dismissed. Viability of a § 1986
claim is based on the antecedent § 1985 claim. If the § 1985 claim
is dismissed, the § 1986 claim also fails. Buschi v. Kirven, 775
F.2d 1240, 1243 (4th Cir. 1985); Sellner v. Panagoulis, 565 F.Supp.
238, 249 (D.Md. 1982) (“[S]ection 1986. . . ‘merely gives a remedy
for misprision of a violation of 42 U.S.C. § 1985.’”) (quoting
Williams v. St. Joseph Hosp., 629 F.2d 448, 452 (7th Cir. 1980)),
aff’d, 796 F.2d 474 (4th Cir. 1986).

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
55
Fourth Amendment to the United States Constitution. This claim is
predicated upon the allegedly unlawful SAFE exams conducted by
GBMC. The County Defendants argue that this claim should be
dismissed because “the ‘searches’ at issue were both consented to
and reasonable.” (ECF No. 45-1, at 32). The State’s Attorney

Defendants argue that Plaintiffs cannot prove a violation of
informed consent. (ECF No. 29-1, at 21-22). Plaintiffs do not
respond to the State’s Attorney Defendants’ arguments.
The Fourth Amendment provides, in pertinent part, “[t]he
right of the people to be secure in their persons [and] houses .
. . against unreasonable searches and seizures, shall not be
violated[.]” U.S. Const. Amend. IV. “It is well settled under
the Fourth and Fourteenth Amendments that a search conducted
without a warrant issued upon probable cause is ‘per se
unreasonable . . . subject only to a few specifically established
and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347,

357 (1967)). “It is equally well settled that one of the
specifically established exceptions to the requirements of both a
warrant and probable cause is a search that is conducted pursuant
to consent.” Id.
56
Plaintiffs allege that (1) “Defendant BCPD deceived the
subjects of the ‘searches,’ nullifying consent” (ECF No. 51, at
28); (2) “‘[c]onsent’ obtained without informing victims ‘that the
SAEKs would be destroyed without being used to solve any crimes,
including the victims assaults,’ is no consent at all” (ECF Nos.

51, at 28-29; 21, at 124); and (3) the consent forms were
“inadequate to allow the female victims of sexual assault to give
informed consent to the procedure” (ECF No. 21, at 124).
Plaintiffs do not provide the contents of the GBMC consent forms.
Plaintiffs do not bring suit against any GBMC individual or entity,
but allege that “performing intrusive searches without informed
consent constitute[s] medical battery[.]” (Id., at 124–25).
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
57
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”), 20 U.S.C. § 1681 et seq.
The Fourth Circuit recently analyzed a university’s potential
liability under Title IX for student-on-student harassment:

58
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
59
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.

60
(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), provided her with the final report (id.
¶¶ 337-38), held a hearing (id. ¶¶ 340), and provided her an
opportunity to appeal the Board’s decision (id. ¶ 343).
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
61
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
62
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 Title IX fails to state a claim for relief under
Fed.R.Civ.P. 12(b)(6). Accordingly, Counts IX, XVI, and XVII

will be dismissed.
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
63
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 dispute this argument.6
Upon review, Defendants are correct. For this additional reason,
Count XVI will be dismissed.
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

6 The statute of limitations is an affirmative defense that
must be pled and proven by a defendant. It is only cognizable on
a motion to dismiss if the defense plainly appears on the face of
the complaint.
64
gender discrimination claim against the Institutional Defendants.”
(ECF No. 46-1, at 40).
Title IX prohibits discrimination on the basis of sex in
“any education program or activity receiving Federal financial
assistance[.]” 20 U.S.C. § 1681(a). The Supreme Court of the

United States has explained that the statute “confines the scope
of prohibited conduct based on the recipient’s degree of control
over the harasser and the environment in which the harassment
occurs.” Davis, 526 U.S. at 644. “[B]ecause the harassment must
occur ‘under’ ‘the operations of’ a funding recipient, see 20
U.S.C. § 1681(a); § 1687 (defining ‘program or activity’), the
harassment must take place in a context subject to the school
district’s control[.]” Id. at 645. A recipient’s damages
liability is limited “to circumstances wherein the recipient
exercises substantial control over both the harasser and the
context in which the known harassment occurs. Only then can the
recipient be said to ‘expose’ its students to harassment or ‘cause’

them to undergo it ‘under’ the recipient’s programs.” Id. Thus,
“funding recipients are properly held liable in damages only where
they are deliberately indifferent to sexual harassment, of which
they have actual knowledge, that is so severe, pervasive, and
65
objectively offensive that it can be said to deprive the victims
of access to the educational opportunities or benefits provided by
the school.” Id. at 650 (emphasis added).
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 Title IX against an institution which did not
deprive them of any educational program or activity. Accordingly,
Count XIII will be dismissed.
For these same reasons, Plaintiff Borkowski cannot state a

claim for denial of educational opportunities under Title IX.
Accordingly, Count XII will be dismissed as to Plaintiff Borkowski.

66
2. Erroneous Outcome
In Count X, Plaintiffs assert an “erroneous outcome” claim
based on gender discrimination under Title IX due to the allegedly
biased investigation of Defendant Hunton into Plaintiff Frank’s
complaint of sexual assault against Defendants Board of Regents

and UMBC. Defendants argue that “Plaintiffs fail to plausibly
allege the elements of an erroneous outcome claim” because
“Plaintiffs cite no procedural violations that caused ‘a
procedurally or otherwise flawed proceeding’ to reach an
‘erroneous outcome.’” (ECF No. 46-1, at 38). Plaintiffs fail to
respond to Defendants’ erroneous outcome argument.
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
67
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
68
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 Title IX. (See ECF No. 53, at
28). It is unfortunate that “Ms. Frank suffered severe educational

setbacks,” but without a sufficient claim of discrimination under
Title IX, this ancillary count fails to state a claim as well.
Accordingly, Count XII will be dismissed.

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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.
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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
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10202605. Public record. Not legal advice.