Borkowski v. Dever

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

In an ultimately unsuccessful fourth attempt to craft a class

action complaint, Plaintiffs devote more than 100 pages, nearly

800 numbered paragraphs, and more than 50 exhibits, in an

overbroad, unfocused recitation of conclusory allegations, some

masquerading as “facts.” While Plaintiffs earnestly believe that

the actions and “policies” of various authorities in Baltimore

County and the University of Maryland, Baltimore County reveal a

pattern of gender discrimination, their Third Amended Complaint

fails to state a viable claim in all but one respect.

Presently pending and ready for resolution are four motions

to dismiss filed by a Defendant or groups of Defendants: (1) Paul

Dillon, Freeman Hrabowski, III, Mark Sparks, the University of

Maryland, Baltimore County (“UMBC”), and the University of

Maryland Baltimore County Police Department (“UMBCPD”)

(collectively “the University Defendants”) (ECF No. 86); (2)

Baltimore County Police Department (“BCPD”), Baltimore County,

Maryland, and current or former police officers Rosemarie Brady,

Kristin Burrows, Paul Dorfler, James Johnson, Morrow Lane, Timothy

Lee, Kimberly Montgomery, Terrence Sheridan, and Nicholas Tomas

(collectively “the County Defendants”) (ECF No. 88); (3) Scott

Shellenberger, Lisa Dever and Bonnie Fox of the State’s Attorney’s

Office (“SAO”) (collectively “SAO Defendants”) (ECF No. 89); and

(4) Bernadette Hunton (ECF No. 90). The issues have been fully

briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons, three of

the motions will be granted, and one will be granted in part and

denied in part.

I. Background

Unless otherwise noted, the facts outlined here are either

set forth in the operative complaint1 or evidenced by documents

referenced and attached to the complaint. The facts are construed

in the light most favorable to Plaintiffs.

The complaint revolves around the investigation and handling

of four instances of alleged sexual assault made by five

plaintiffs, Marcella Fegler (“Ms. Fegler”), Katelyn Frank (“Ms.

1 The third amended complaint (“TAC”) lists facts without a

clear timeline or narrative. In addition, key facts contained in

Plaintiffs’ earlier complaints have been removed. A clearer

chronology of the facts is recounted in some of Plaintiffs’

oppositions. (ECF No. 96-1, at 7-12); (ECF No. 95-1, at 5-7); (ECF

No. 97-1, at 6-10).

Frank”), Kaila Noland (“Ms. Noland”), Anna Borkowski (“Ms.

Borkowski”), and Annemarie Hendler (“Ms. Hendler”).

A. Anna Borkowski and Annemarie Hendler

Ms. Borkowski and Ms. Hendler are both residents of Maryland

and former UMBC students. Ms. Hendler now attends Towson

University. Both women state that, in the early morning hours of

October 20, 2017, they were “gang-raped and repeatedly assaulted”

by three men. Upon regaining consciousness, both Plaintiffs were

in intense pain and, realizing what had occurred, reported the

assault to the Towson University Police Department. They were sent

to the Greater Baltimore Medical Center (“GMBC”) for examination

and treatment. At GMBC, a Sexual Assault Forensic Exam (“SAFE”)

exam was performed on Ms. Borkowski that showed “injuries

consistent with sexual assault.” Ms. Hendler similarly suffered

from bleeding, soreness, swelling and abrasions. They both

requested immediate police investigations.

They allege that they had to wait many hours after the assault

before BCPD contacted them. Ms. Hendler met with Detectives Tomas

and Burrows and signed a waiver declining further investigation.

She again requested an investigation, however, eighteen minutes

later. By midnight on October 21, 2017, Plaintiffs state, the

case was “inexplicably closed and cleared by ‘exceptional

circumstances.’” Plaintiffs further state that BCPD ignored major

pieces of evidence such as blood stains on the bed and a suspicious

bottle of vodka. According to the complaint, the Investigative

File shows that BCPD officers never visited the crime scene or

collected evidence there. Further, witnesses were never

interviewed and the Sexual Assault Examination Kits (“SAEK”), the

sampling for which they consented, were never tested or entered

into the police DNA database. After almost a month, in mid-

November 2017, Detectives Borrows and Tomas conducted a joint

interview of the three alleged assailants. “Sometime later,”

Detective Burrows recorded the report as “open” or “open

suspended.”

On March 14, 2018, Ms. Borkowski submitted sworn affidavits

and an application for statements of charges with District Court

Commissioner John Robey. Commissioner Robey then instructed her

to wait in the hallway while he contacted Officer Montgomery and

Mr. Dever. Officer Montgomery and Mr. Dever directed Commissioner

Robey to deny the application for statements of

charges. Commissioner Robey complied. The denied applications

were forwarded to Baltimore County Administrative Commissioner

Whitney Wisniewski.

That same day, sensing a failure fully to investigate her

claims, Ms. Borkowski applied for a statement of charges against

her assailants with District Court Commissioner John Robey. Her

application was “swiftly” denied. On March 20, 2018, Ms. Borkowski

again applied for a statement of charges before Commissioner

Colleen Ellingson. After reviewing Ms. Borkowski’s sworn

statement, Commissioner Ellingson charged all three men with

several crimes including first degree rape. On March 21, 2018,

Detective Burrows learned that Ms. Borkowski had applied for these

statements of charges. She subsequently, at the behest of the SAO

Defendants, reached out to the “BCPD officer in charge” of serving

the summonses and told him not to serve them. Detectives Burrows

and Tomas also called Ms. Borkowski repeatedly and visited her

Baltimore residence, and demanded of her grandmother to know where

she was. The detectives also obtained her Towson class schedule.

(ECF No. 81-24).

Ms. Borkowski alleges that the Defendants interfered with her

right to apply for statements of charges. Specifically, the SAO

Defendants ordered Detectives Burrows and Tomas to tell Ms.

Borkowski to stop filing charges with the Commissioners or she

would face criminal charges. (ECF No. 81-48). These efforts

“effectively barred” Ms. Borkowski from applying for a statement

of charges. The SAO Defendants alerted the attorney for the

assailants and UMBC’s Title IX coordinator that the charges against

the alleged assailants were dropped. Ms. Borkowski, however, was

not updated. Defendant Dever also expunged the alleged assailants’

criminal record, which Plaintiffs argue was ultra vires.

B. Marcella Fegler

Ms. Fegler is also a resident of Maryland and a former UMBC

student. On August 25, 2014, she went to a party near the UMBC

campus where she encountered four members of the UMBC basketball2

team whom she knew. During the early morning of August 26, the

players sexually assaulted her after she had consumed a large

amount of alcohol. She awoke with no memory of what had occurred.

Two of the four players reassured her that “nothing had happened”

the night before. Two months later she learned from a fellow

student that the players had sexually assaulted her while she was

incapacitated.

Initially, Ms. Fegler raised her complaint about the incident

to a student jury through the university’s administrative

proceedings. Due to the student body’s general awareness of these

proceedings, Ms. Fegler was subject to harassment by fellow

students, particularly student athletes. She states that the

school failed to protect her from such harassment. Ultimately,

two of the players admitted to assaulting her but the other two

continued to deny the incident. UMBC expelled the former but

allowed the latter to remain in school. Ms. Fegler then

transferred out of UMBC to avoid the continued harassment and

2 At some points in their TAC, Plaintiffs describe the

assailants as being on the “baseball” team. Other places, they

are described as being on the “basketball” team.

contact with the two men still on campus. She continued to be

harassed after transferring because UMBC basketball players told

a player at her new school to “watch out for her, that she had

faked a rape, and carried STD’s [sic].”

Ms. Fegler also reported her sexual assaults to BCPD. Upon

investigating, “Defendants Burrows and Tomas only interviewed

three [] of the four [] assailants and “colluded” with counsel for

the alleged assailants and “other UMBC officials” to “prematurely

end the investigation and exonerate the four [] assailants.”

Officer Tomas stated that “in order for some of the sex acts,”

which Ms. Fegler could not remember, “to be performed, she would

have had to be conscious to participate.” Officer Tomas also

offered to testify on behalf of the accused to the effect that

they “were not involved as alleged.” (ECF No. 81-51). In 2017,

the County and the BCPD twice promised a “fresh review of sexual

assault cases” like Ms. Fegler’s, but never re-opened her case.

(ECF Nos. 81-3, at 1-5).

C. Katelyn Frank

Katelyn Frank is a resident of Maryland and a former UMBC

student. Ms. Frank began her freshman year at UMBC in the fall of

2015. On September 10, 2015, Ms. Frank was drugged and raped by

an upperclassman in a university dorm. Ms. Frank first reported

the assault to an employee at the UMBC health center. Then, on

September 14, 2015, Ms. Frank reported her rape at Greater

Baltimore Medical Center (GBMC) and underwent a SAFE. The Forensic

Nurse Examiner (“FNE”) who examined Ms. Frank reported the assault

to Baltimore County. On October 7, 2015, Ms. Frank reported the

assault to Defendant Paul Dillon, now chief, and former deputy

chief of the UMBC Police Department, in person and followed up via

email. (ECF No. 81-19, at 1). Ms. Frank states that Officer

Dillon improperly dissuaded her from filing a formal police report

by telling her that “the administrative method” was “faster and

easier,” “more victim friendly,” and “easier to prove.” Officer

Dillon did not make a formal record of Ms. Frank’s report of sexual

assault, in violation of the Clery Act3 and UMBC’s Memorandum of

Understanding (“MOU”) with the BCPD. (ECF No. 81-27, at 3). At

Officer Dillon’s request, Ms. Frank signed a statement stating

that she was delaying reporting the incident to law enforcement.

UMBC retained a female attorney, Defendant Bernadette Hutton, to

investigate the incident and prepare a Title IX Report. Ms. Hutton

met with Ms. Frank who produced a report finding that Ms. Frank

was not sexually assaulted.

Ms. Frank then went to the Catonsville Precinct of the BCPD

to report her sexual assault on May 5, 2016. Defendant Timothy

Lee, a BCPD patrol officer, took her statement. Ms. Frank provided

officer Lee with a detailed description of her assault. Officer

3 The Jeanne Clery Disclosure of Campus Security Policy and

Campus Crime Statistics Act, 20 U.S.C. § 1092(f).

Lee then drove to UMBC and met with the UMBC Police to follow up

on Ms. Frank’s allegations. Upon returning to the BCPD precinct,

officer Lee told Ms. Frank that UMBC had no record of the assault

“even though Ms. Frank had just handed the report to him.”

Officer Lee classified Ms. Frank’s assault as a “suspicious

condition” and closed it with a “non-criminal disposition.” When

Ms. Frank’s mother emailed the prosecutor’s office to follow up on

the status of the case, Defendant Lisa Dever forwarded the email

to Defendant Kimberly Montgomery and wrote “Hahaha! Her response

from my being so nice.” (ECF No. 81-34). The complaint further

alleges that, “[c]onspiring with Defendant Dever, Defendant

Montgomery placed a pretextual note” in Ms. Frank’s file stating

that Ms. Frank did not provide enough information to justify an

investigation.

On December 1, 2016, Ms. Frank’s SAEK was destroyed without

being tested or uploaded to Combined DNA Index System (“CODIS”).4

Ms. Frank’s assault resulted in educational setbacks,

including leaving UMBC to attend community college.

4 CODIS is a system of national, state, and local databases

managed by the FBI that allows crime laboratory personnel across

the country to compare DNA profiles from known criminal offenders

(and arrestees where applicable) with biological evidence from

crime scenes.

D. Class Claims and Claims by All Plaintiffs

Named Plaintiffs:

bring this class action on behalf of all

female victims of rape or sexual assault in

Baltimore County, Maryland. These women

reported their assault; underwent invasive

testing in the preparation of a SAEK; were

denied educational access on the basis of

their gender in connection with a report or

attempted report of rape or sexual assault;

and, were improperly dissuaded, coerced,

intimidated, or otherwise impeded from

reporting or pursuing a rape or sexual assault

complaint because of Defendants’ sympathy to

men accused of sexual assault and antipathy

against women reporting it.

(ECF No. 81, ¶ 11). The process described involves use of a SAFE.

A SAFE can last up to four hours and includes touching, swabbing,

and photographing a victim’s genitals. SAFE Examinees sign a

waiver authorizing “transmittal of a copy of all medical reports,

other information created, and evidence collected pursuant to the

examination to the Police Department of the jurisdiction where the

alleged crime took place, when and if [the victim] elect[s] to

report the alleged sexual assault to the police, and to the Office

of the State’s Attorney of the jurisdiction, when and if [the

victim] elect[s] to cooperate with a prosecution of the alleged

sexual assault.” (ECF No. 81-7, at 1). The SAFE results in the

creation of evidence known as a SAEK.

The TAC alleges that, between 2010 and 2018, 1,032 SAEKs were

collected. Of the 1,032 collected, approximately thirteen percent

were tested for DNA and 0.035 percent were uploaded into CODIS.

SVT Detectives have discretion over whether a SAEK is tested.

Forty percent of the 1,032 SAEKs collected have been destroyed.

In contrast, “between 2016 and 2017, fifty-four percent (54%) of

property crimes and thirty-three percent (33%) of violent, non-

sex crimes were tested and submitted to CODIS.” Non-sexual assault

victims receive a letter if evidence is to be destroyed. “SAFE

examinees were not informed of the SAEK’s destruction.” Plaintiffs

allege that this evidence demonstrates that County and SAO

Defendants are biased against woman who report sexual assault.

E. Procedural History

Plaintiffs filed their initial complaint on September 10,

2018, (ECF No. 1), an amended complaint on October 17, 2018 (ECF

No. 5), and a second amended complaint (“SAC”) on December 7, 2018

(ECF No. 21). Separate motions to dismiss the SAC were filed, as

were motions to seal exhibits containing sensitive information.

On September 30, 2019, the court issued a Memorandum Opinion

granting the motions to dismiss and to seal. Plaintiffs were

granted leave to amend their complaint further. (ECF No. 67). On

December 4, 2019, Plaintiffs filed their Third Amended Complaint

(“TAC”). (ECF No. 81). Once again, the Defendants filed motions

to dismiss in four groups, all on January 17, 2020. Oppositions

and replies have been filed.

II. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need

only satisfy the standard of Fed.R.Civ.P. 8(a), which requires a

“short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed.R.Civ.P. 8(a)(2). At this stage, all

well-pleaded allegations in a complaint must be considered as true,

Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual

allegations must be construed in the light most favorable to the

plaintiff, see Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993)). But “[r]ule 8(a) (2) still

requires a ‘showing,’ rather than a blanket assertion, of

entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

556 n. 3 (2007).

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 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.

III. Analysis

Plaintiffs were directed in the previous opinion dismissing

the SAC to file “a more focused, perhaps modest, third amended

complaint.” Despite that admonition, the TAC includes many of the

same claims, albeit with factual enhancements. Borkowski v. Balt.

Cty., Md., 414 F.Supp.3d 788, 803 (D.Md. 2019). Plaintiffs’ added

factual support to many of their previously bald assertions still

fail to cure the fatal deficiencies in all but one of their claims.

With the new facts included in the Plaintiffs’ TAC, however, one

Plaintiff does state a plausible claim for Deprivation of First

Amendment Rights (Count II). The other fourteen counts will be

dismissed.

A. Group Pleadings

The County Defendants argue that despite the previous

“admonition against [] ‘group pleading’” expressed in the court’s

opinion, Borkowski, 414 F.Supp.3d at 803, numerous group pleadings

remain in the TAC against Defendants, County Defendants, or the

Special Victims Team (“SVT”). (ECF No. 88-1, at 24, 31, 44)

(citing ECF No. 81, ¶¶ 462, 541, 542, 544, 548, 552, 792). The

only claims dismissed in the SAC as group pleadings, however, were

those by “all Plaintiffs” against “all Defendants,” which included

a conspiracy claim against twenty-two Defendants. Borkowski, 414

F.Supp.3d at 803. None of the paragraphs referred to by the County

Defendants is pleaded in this way. In fact, they involve Ms.

Borkowski and/or the purported class5 making Equal Protection

claims against Baltimore County, BCPD officers and SAO offcials,

and a claim by Ms. Fegler against Baltimore County, these same SAO

officials, and the UMBC President. These are not group pleadings

and will not be barred as such.6

B. Sovereign Immunity

An individual sued in his or her official capacity as a state

agent is entitled to Eleventh Amendment Immunity. Borkowski, 414

5 The TAC once again asserts allegations on behalf of a class

and sub-class. It argues for certification pursuant to

Fed.R.Civ.P. 23(a), 23(b)(1), 23(b)(2), and 23(b)(3). (ECF No.

81, ¶¶ 312-29). As with the SAC, “Class certification will not be

addressed at this time.” Borkowski, 414 F.Supp.3d. at 822 (citing

Popoola v. Md.-Indiv. Prac. Ass’n, Inc., 230 F.R.D. 424, 433 (D.Md.

2005)).

6 The only count that arguably approaches a group pleading is

Count I in alleging a claim by “all Plaintiffs and class members”

against Defendants Baltimore County and the BCPD “Policy Makers”

and “Supervisory Defendants.” The County Defendants, however,

F.Supp.3d at 806. Similarly, UMBC and UMBCPD are “immune from

claims” under 42 U.S.C. §§ 1983, 1985, and 1986 as instruments of

the state. Id. at 804. Therefore, individuals sued in their

official capacity at UMBC are also state actors and protected in

that role by sovereign immunity. Id. at 805. Plaintiffs purport

to name SAO Defendants Dever and Fox in their “official capacities

as de facto Baltimore County employees.” (ECF No. 81, ¶ 52). The

SAO motion to dismiss, however, treats Mr. Dever and Ms. Fox solely

as state employees throughout. In response, Plaintiffs argue that

the county, and not the state, is the “real party in interest” in

that the County funds the SAO’s operation under Maryland law. (ECF

No. 98-1, at 33-34) (citing Fitchik v. N.J. Transit Rail

Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)). Plaintiffs

insist that this means the SAO Defendants are “not covered by

Eleventh Amendment immunity” for conduct “outside of their classic

law enforcement functions.” (ECF No. 98-1, at 34). The SAO

Defendants correctly argue that this point was already adjudicated

in the previous opinion. (ECF No. 89-1, at 10); (see Borkowsk,

414 F.Supp.3d at 806) (citing Md. Code 5-101(ll)(5) (“‘State

official’ means . . . a State’s Attorney[.]”)). Regardless, it

has little to no bearing on the current litigation. Insofar as

only cite to paragraphs in Counts III, IV and V as group pleadings,

and so do not challenge Count I on this ground.

Plaintiffs mean that some of the conduct attributable to Mr. Dever,

Mr. Shellenberger, and Ms. Fox is not protected by absolute

prosecutorial immunity, they are correct, but the SAO Defendants

do not dispute this.7 Nonetheless, the § 1983 claims can only

proceed against them in their individual capacities, as the SAO is

clearly an instrument of the state. See Borkowski, 414 F.Supp.3d

at 806.

Plaintiffs also seems to name UMBCPD Officers Dillon, Jagoe

and Sparks in both their individual and official capacity in one

section of their TAC, (ECF No. 81, ¶ 50), but then confusingly

also state that “UMBC Defendants Hrabowski, Sparks, Dillon and

Jagoe are sued in their personal capacities.” (Id., ¶ 53). In

reading these two statements in harmony, it can be assumed that

Officers Dillon, Jagoe and Sparks are named by Plaintiffs in both

their individual and official capacity, while Dr. Hrabowski is

sued only in his official capacity. As it relates to both claims

directly against UMBC and against individual UMBC and UMBCPD

individuals in their official capacity, however, the University

Defendants correctly state that “Plaintiffs do not allege any new

facts that alter this court’s prior application of Eleventh

7 The SAO Defendants only claim prosecutorial immunity for

their communications with the commissioners, implicitly conceding

that their subsequent conduct with the BCPD is not part of their

official prosecutorial function. (ECF No. 89-1, at 17).

Amendment Immunity.” (ECF No. 86-1, at 11).8 Counts II, III, IV,

V, VI, XII, XV as to Mr. Dever, Mr. Shellenberger and Ms. Fox, and

Counts VI, VII, and XV as they relate to Officers Sparks, Dillon

and Jagoe9 in their official capacities will be dismissed.10

C. 42 U.S.C. § 1983

Plaintiffs allege six counts under 42 U.S.C. § 1983. Count

I alleges a violation of Equal Protection, by all Plaintiffs and

purported class Plaintiffs against Defendants James Johnson,

Terrence Sheridan, Michael Peterson, and Rosemarie Brady, (“BCPD

8 The Eleventh Amendment immunity only bars suits for damages.

The only place that the TAC seeks injunctive and declaratory relief

is in relation to Plaintiffs’ purported class claims under

Fed.R.Civ.P. 23(b)(2). (ECF No. 81, ¶ 321). The only purported

class or sub-classes named as Plaintiffs are in Counts I, IV and

XII which will be dismissed on other grounds. Due to unfortunate

lack of attention to detail, Plaintiffs elsewhere in their

complaint include class action references. For instance, the TAC

states that Ms. Frank brings her Count VII claim on behalf of

“similarly situated female victims of sexual assault generally,”

(ECF No. 81, ¶ 617), and Count XIV states, “The UMBC approach to

sexual misconduct constituted a violation of female students’

rights under Title IX” (Id., ¶ 789), despite the fact that neither

count proports to be a class claim in its respective header. These

two counts, however, will also be dismissed on other grounds. The

surviving claims, therefore, do not seek injunctive relief.

9 The University Defendants point out that Mr. Jagoe is

referenced throughout the complaint but is not actually a named

Defendant. (ECF No. 86-1, at 4 n.2).

10 Ms. Hunton devotes half of her own motion to dismiss to

arguing the question left open in the previous opinion as to

whether she is a state actor in this context. Borkowski, 414

F.Supp.3d at 810 n. 4; (ECF No. 90-1, at 11-17). She is only named

as a Defendant in Count VI, which will be dismissed for other

reasons discussed below.

Supervisory/Policymaker Defendants”) and Baltimore County. Count

II alleges deprivation of First Amendment rights by Ms. Borkowski

against Defendants Shellenberger, Dever, and Fox of the SAO, and

Officers Montgomery, Tomas, and Borrows of the BCPD. Count IV

alleges a deprivation of Equal Protection by Ms. Borkowski and

purported class Plaintiffs against these same SAO and BCPD

Defendants. Count VI claims deprivation of Equal Protection by

Ms. Frank against Defendants Baltimore County, Dever,

Shellenberger, Montgomery, Lee, Sparks, Hrabowski, Hunton, and

Dillon. Count XII asserts a Fourth Amendment claim against

Defendants Baltimore County, Johnson, Sheridan, Peterson, Brady,

Shellenberger, and Dever. Count XV alleges a deprivation of Equal

Protection by Ms. Fegler against Defendants Baltimore County,

Dever, Shellenberger, Tomas, Burrows, Hrabowski.

As the Fourth Circuit has explained, “[t]o state a claim under

§ 1983, a plaintiff must allege that [s]he was deprived of a right

secured by the Constitution or laws of the United States, and that

the alleged deprivation was committed under color of state law.”

McDaniel v. Baily, 710 Fed. Appx. 604, 605 (4th Cir. 2018) (citing

Thomas v. Salv. Army S. Terr., 841 F.3d 631, 637 (4th Cir. 2016)

(internal quotation marks omitted)). “The statutory color-of-law

prerequisite is synonymous with the more familiar state-action

requirement — and the analysis for each is identical.” Id. (citing

Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.

2009)).

1. Equal Protection

Plaintiffs allege in Counts I,11 IV, VI and XV that they were

denied Equal Protection under the law because of their status as

female complainants of sexual assault. (See, e.g., ECF No. 81, ¶¶

557, 604).

The Equal Protection Clause of the Fourteenth Amendment

declares that “[n]o state shall . . . deny to any person within

its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. It is “essentially a direction that

all persons similarly situated should be treated alike.” Grimm v.

Gloucester Cty. Sch. Bd., No. 19-1952, 2020 WL 5034430 at *13

(citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985)). It bears repeating that “[t]o succeed on an equal

11 The previous opinion criticized the SAC for “lack[ing]

sufficient precision” in its naming of Defendants. Borkowski, 414

F.Supp.3d at 812. Count I of the TAC similarly lacks precision.

It names a wide array of “policy makers” and supervisors at the

BPCD but does not make clear what role, if any, these particular

individuals had in actually shaping the “written and/or unwritten”

“policy of Baltimore County Police Department to ignore complaints

of sexual assault by women against men” with which Count I takes

issue. (ECF No. 81, ¶¶ 331-32). The TAC baldly asserts that

“[t]he affirmative decisions of policymaking officials Johnson,

Brady, Peterson, and Sheridan reflect the unconstitutional

policies of Baltimore County” and that Johnson and Sheridan

allocate more resources to serious crimes than to sexual assault

against female victims.” (Id., ¶¶ 337-38). Such imprecision will

be ignored however, because these claims will be dismissed on other

grounds.

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.” Borkowski, 414

F.Supp.3d at 808 (citing Morrison v. Garraghty, 239 F.3d 648, 654

(4th Cir. 2001)). While a “similarly situated comparator” is not

an absolute requirement to succeed on an Equal Protection claim,

Bryand v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir.

2003), “[p]roof of . . . discriminatory intent or purpose is

required to show a violation of the Equal Protection Clause of the

Fourteenth Amendment.” Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265 (1977) (emphasis added).

“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.” Borkowski v. Balt.

Cty., Md., 414 F.Supp.3d at 809 (quoting Hernandez v. New York,

500 U.S. 352, 360 (1991) (internal quotation marks omitted)).

“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).

“Once this showing is made, the court proceeds to determine

whether the disparity in treatment can be justified under the

requisite level of scrutiny.” Morrison, 239 F.3d at 654. Courts

apply different levels of scrutiny depending on the kind of

classification the law makes. See id., at 654-55. Where laws

make gender-based classifications, they are subject to

intermediate or “heightened” scrutiny that requires a showing that

the gender-based classification serves “important governmental

objectives and that the discriminatory means employed” are

“substantially related to [achieving] those objectives.” Sessions

v. Morales-Santana, 137 S.Ct. 1678, 1683-84 (2017) (citing United

States v. Virginia, 518 U.S. 515, 533 (1996)).

The Equal Protection claims in the TAC largely echo and build

upon those in the SAC. For example, as to Count I, Plaintiffs

reiterate their central allegation verbatim: “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. 81, ¶ 332); compare (ECF No. 19-4, ¶ 582).

Where the TAC adds significantly upon the old, however, is in

arguing that County defendants purposefully committed

substantially less resources to solving sexual assaults against

female victims, and that their alleged indifference toward female

victims was part of a concerted plan to favor male suspects over

female victims. (ECF No. 81, ¶ 338). In particular, as to Count

I, Plaintiffs allege that the SVT was staffed with “biased

detectives” and support this assertion with numerous statistics

purporting to show the chronic under investigation and prosecution

of sexual assault claims through the mishandling of SAEK inventory,

intimidation of victims, and an unwillingness of Baltimore County

aggressively to prosecute sexual assault cases involving female

victims. (Id., ¶¶ 337-72).

Similarly, as to Ms. Fegler in Count XV, “BCPD performed

little to no investigation into the allegations[] and focused on

exonerating the assailants.” (Id., ¶ 791). In turn, Plaintiffs

allege that Detectives Burrows and Tomas “colluded” with UMBC

officials to end the investigation prematurely. (Id., ¶ 792).

Plaintiffs also attach an audit of the SVT, the unit of which

Ms. Burrows and Mr. Tomas are part, that supports their allegations

that sexual assault claims have a relatively low

prosecution/conviction rate and suggests that “some police and

prosecutors continue to consider resistance (an antiquated gender-

based norm) when pursuing investigations and prosecutions.” (ECF

No. 81-52, at 6-7).

In Count IV, Plaintiffs baldly assert that the “words and

actions” of Officers Tomas and Burrows “reflect their bias against

female victims of sexual assault” because they asked Ms. Hendler

“offensive and demeaning questions, and pressured her, while she

was still intoxicated.” (ECF No. 81, ¶¶ 488-89). Similarly,

Plaintiffs argue that “Defendants Burrows, Tomas, and Dever . . .

were guided by an underlying bias towards male suspects and against

female victims.” (Id., ¶ 536). Within Count VI, they similarly

allege that Officer Montgomery and Mr. Dever “covered up” the “real

reason” behind their inability to find inculpatory evidence

against Ms. Frank’s alleged assailant: their “gender-based

discriminatory policies regarding reports of rape.” (Id., ¶ 598).

The TAC goes on to assert, “Ms. Frank is but one of hundreds,

possibly thousands of women who suffered this violation of the

equal protection rights due to Defendants’ deliberate indifference

and bias against women who report sexual assault.” (Id., ¶ 599).

Lastly, as to Count XV,12 Plaintiffs argue that Defendant Tomas’

offer to testify for the accused men is “clearly a reflection of

his invidious bias against women.” (Id., ¶ 794).

The TAC also newly alleges that the SVT detectives acted

purposefully to intimate “[f]emale victims of sexual assault” in

order to dissuade them from filling complaints. (ECF No. 81, ¶¶

120-129). However, the closest these allegations come to showing

gender bias is in generically arguing that “Baltimore County does

not use these practices of intimidation and abuse in their approach

to handling other crimes, crimes that do not disproportionately

affect women.” (Id., ¶ 129) (emphasis added).

12 In an obvious typographical error, Plaintiffs label this

“Count V” instead of “Count XV.” (Id., ¶¶ 790-98).

Here, Plaintiffs fail to make a threshold showing of an Equal

Protection violation against any named Plaintiffs or purported

class members. Their repeated assertions of bias and

discriminatory intent lack any specific factual support. While

Plaintiffs posit that, in drastically and negatively impacting

women, such policies must be animated by gender bias, nowhere do

they state how the claims of similarly situated men (i.e. male

victims of sexual assault) were treated differently. Plaintiffs

therefore fail to plead facts that female sexual assault

complainants, as a class, were treated any differently than those

“similarly situated.”13 Even where Plaintiffs allege by

implication differences in how female and male sexual assault cases

are pursued,14 “Plaintiffs’ gender discrimination claims more aptly

fit a disparate impact theory, which is not viable under § 1983.”

Borkowski, 414 F.Supp. 3d at 810. Plaintiffs fail to point to

concrete evidence that these policies were created because they

13 The County Defendants point out that nowhere do Plaintiffs’

myriad statistics show either the arrest or conviction rates of

“allegedly comparable crimes,” how female victims of these other

crimes receive different treatment than male victims, or how male

sexual assault victims are treated differently. (ECF No. 88-1, at

31).

14 For instance, Plaintiffs point to the use of the “suspicious

circumstances” code by Defendants when dealing with female

complainants. (ECF No. 81, ¶ 186). It is unclear, however,

whether this coding is only used with female complainants or simply

used with them more often. The TAC only notes it “disfavors”

female victims of sexual assault. (Id., ¶ 336).

adversely affected women, rather than in spite of that fact. Baldy

asserting that Defendants’ “purpose was to artificially lower the

prosecution of sex crimes against female victims in Baltimore” is

to equate a disparate impact theory with gender animus without any

factual support. (ECF No. 81, ¶ 146). Accordingly, Counts I, IV,

VI and XV will be dismissed.

2. First Amendment

Ms. Borkowski claims in Count II that Mr. Shellenberger, Mr.

Dever and Ms. Fox of the SAO and Officers Tomas, Burrows and

Montgomery of the BCPD jointly violated her First Amendment right

to free speech in two ways. First, she asserts that they violated

her “right to be free from retaliation by a public official for

the exercise of her rights.” Second, she argues that “they

prevailed [upon] the District Court Commissioner to reject future

applications.” (Id., ¶ 448-49). Plaintiffs argue that “Defendants

Montgomery and Dever improperly directed Commissioner Robey to

deny [Ms. Borkowski’s] applications for statement of charges.”

(Id., ¶ 383). Similarly, they allege that “Defendant Burrows []

interfered with Ms. Borkowski’s rights . . . by convincing

Commissioner Wisniewski” to send out a “department-wide email”

instructing employees not to act on further applications from Ms.

Borkowski. (Id., ¶ 414).

a. Prosecutorial Immunity

The SAO Defendants claim absolute immunity in relation to

their letter to Commissioner Wisniewski. (ECF No. 89-1, at 17)

(referencing ECF No. 81-23). In the letter, Ms. Dever acknowledged

that the SAO cannot bind the Commissioner as a District Court

official, but nevertheless advised the commissioner that the SAO

was not going to pursue criminal charges absent new evidence.

(Id.). The SAO maintains that the decision not to prosecute the

alleged assailants was within the its discretion. (ECF No. 89-1,

at 17). Plaintiffs counter that discretion over the probable cause

determinations rested instead with the district court

commissioners. (ECF No. 98-1, at 29).

The SAO and The Maryland District Court Commissioner’s Office

are separate entities, each with discretion to perform separate

aspects of the prosecution process and each may be shielded by

absolute prosecutorial immunity for exercising that discretion.

The previous opinion explains that, “[P]rosecutors are absolutely

immune from liability under § 1983 for 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[.]’” Borkowski, 414 F.Supp.3d at 806 (citing

Burns v. Reed, 500 U.S. 478, 486 (1991)).

Here, the SAO Defendants correctly argue that the letter

conveying the SAO’s decision not to prosecute is intimately

associated with the SAO’s role in the judicial process. (ECF No.

89-1, at 17). “[T]o 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.”

Borkowski, 414 F.Supp.3d at 812. The allegedly improper discussion

between Commissioner Robey, Officer Montgomery and Mr. Dever as to

Ms. Borkowski’s successive and duplicative filings, (ECF No. 81,

¶¶ 382-84), is an action related to SAO charging decisions. Thus,

it is similarly protected by absolute prosecutorial immunity. (ECF

No. 88-1, at 16). Baldly asserting that Ms. Montgomery and Mr.

Dever acted “with a malicious intent to obstruct the administration

of justice” is not enough to change this fact. (Id., ¶ 385).

Count II, as it relates to interference with Ms. Borkowski’s right

to file a complaint with the Commissioner’s office, will be

dismissed.15

b. Qualified Immunity

Both the County and SAO Defendants argue that their efforts

to prevent Ms. Borkowski from filing successive charges is

protected by qualified immunity. (ECF No. 88-1, at 20); (ECF No.

15 Moreover, the County Defendants point out that the

allegations as to Ms. Montgomery in this Count are limited solely

to her interactions with Commissioner Robey. She was not involved

in the detectives’ attempt to visit Ms. Borkowski’s home. (ECF

No. 88-1, at 16); (citing ECF No. 81, ¶¶ 382-87). Count II, as to

Ms. Montgomery, will be dismissed in its entirety.

89-1, at 11). The previous opinion stated that, “[q]ualified

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)

(internal quotation marks omitted). The two elements of the

defense are whether a constitutional violation occurred and,

if so, whether the right in question was clearly established

at the time of the alleged misconduct. The first question

involves shifting burdens of proof. The defendant bears the

initial burden of showing that the alleged conduct falls

within the scope of his or her duties. Id. (citing Henry v.

Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007)). Because

Defendants have made this threshold showing, the burden of

proof was shifted to Plaintiffs to show that “a

constitutional violation has occurred.” Id. (citing Henry,

501 F.3d at 377). As to Count II, Plaintiffs have made that

showing.

Ms. Borkowski’s surviving First Amendment retaliation claim

entails a lower bar than is required to prove an actual deprivation

of a First Amendment right. This portion of the complaint revolves

around the SAO Defendants’ message to Ms. Borkowski to stop going

to the Commissioner or face charges and the efforts of Detectives

Burrows and Tomas to deliver this message by repeatedly calling

Ms. Borkowski and showing up at her house.

The previous opinion states:

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)).

Borkowski, 414 F.Supp.3d at 811. Defendants argue that Plaintiffs

have failed to allege that Ms. Borkowski engaged in protected

speech because her repeated attempts to file constituted

harassment. They next argue that their own conduct was itself

protected speech and cannot adversely effect Plaintiff’s speech.

The County Defendants correctly point to Suarez 202 F.3d at 676,

which states, “[t]he nature of the alleged retaliatory acts has

particular significance where the public official’s acts are in

the form of speech.” (ECF No. 88-1, at 17) (emphasis added). Even

the detectives’ action of coming to her house can be looked at as

pure speech in this context in that Ms. Borkowski objects to it as

“intimidation” in the threatening message it conveyed to her. (ECF

No. 81, ¶ 432). When such alleged retaliatory speech is involved,

courts must ask “whether [defendants’] speech was threatening,

coercive, or intimidating so as to intimidate that punishment,

sanction or adverse regulatory action will imminently follow” so

as to be actionable. Suarez, 202 F.3d at 689.

As will be seen, Defendants’ arguments as to the first two

elements fail.

Defendants once again assert that the harassment carried out

by Ms. Borkowski in her repeated filing is not protected speech.

(ECF No. 89-1, at 13); (ECF No. 88-1, at 19). Plaintiffs counter

that sentiment by arguing that filing two applications for

statement of charges cannot be considered harassment and that the

supposed harassment here was in creating a “criminal record” for

the alleged assailants and not directed to the courts. (ECF No.

98-1, at 23-24). Plaintiffs further argue that this is not the

kind of “libel and intentional and reckless falsehoods” that

prompted the court to announce that “baseless litigation is not

immunized by the First Amendment right.” (ECF No. 96-1, at 34)

(citing McDonald v. Smith, 472 U.S. 479 (1985)).

These arguments, on both sides, go to the merits of whether

Ms. Borkowski’s speech was harassment, and as before, “[w]hether

[her] successive filing of charges constitutes harassment cannot

be determined based on the allegations in the complaint.”

Borkowski, 414 F.Supp.3d at 812 (citing Md. Code., Crim. Law § 3-

803(a)). Viewed in the light most favorable to Plaintiffs, Ms.

Borkowski’s filings were not “maliciously” made “without a legal

purpose” nor were they made “after receiving a reasonable warning

or request to stop,” which would be necessary to constitute

harassment. Md. Code., Crim. Law §3-803(a). Ms. Borkowski

incorrectly claims that the harassment statute was meant to protect

only the courts and not third parties. (ECF No. 98-1, at 24). The

harassment statute was specifically designed “to help law

enforcement agencies [] defuse ongoing feuds and longstanding

disputes.” (ECF No. 100, at 14 n. 4). The first element of a

retaliation claim is satisfied here as, “[f]iling an application

for a statement of charges likely is protected by the First

Amendment, either under the petition or the speech clause.”

Borkowski, 414 F.Supp.3d at 812.

Unlike in the SAC, the additional allegations in the TAC

satisfy the second element. Cf. Borkowski, 414 F.Supp.3d at 811.

The SAO Defendants stress the failure to meet the second element

of the Tobey test. They argue that the message they wished to

convey to Ms. Borkowski did not adversely affect her by contending

that their “actions did not have an adverse impact on [Ms.

Borkowski’s] desire or ability to have access to Maryland courts.”

(ECF No. 89-1, at 21). Whether an action is considered adverse

in this context depends on “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).

To prove retaliation, a plaintiff “need not actually be

deprived of . . . [her] First Amendment rights.” Garcia v.

Montogmery Cty., Md., 145 F.Supp.3d 492, 515 (D.Md. 2015). The

alleged retaliatory conduct must simply be threatening enough to

chill a person of ordinary firmness from exercising his or her

rights, as mentioned. Beyond quoting the case as an authority on

First Amendment retaliation, Plaintiffs highlight the factually

intensive nature of this analysis in arguing that Suarez is

“inapposite” to the facts at hand. (ECF No. 96-1, at 34). They

argue that the speech of Defendants there was found not to be

sufficiently threatening, because plaintiff was a commercial

actor. Here, alternatively, they point out that Ms. Borkowski is

a private individual and the Defendants are “armed government.”

(Id.).

Plaintiffs are correct insofar as context matters in judging

whether an official’s speech is threatening. In Suarez, the

alleged threats were defamatory comments made by state attorneys

general who were actively investigating the plaintiff company.

202 F.3d. at 689. Ultimately, the court found that the plaintiff

failed to show that the comments could be construed as “intimating”

that punishment, or adverse action would follow and thus failed to

be retaliation. (Id.) But the plaintiff’s status as a commercial

actor was not relied upon in Suarez.16 “Thus, where a public

official’s alleged retaliation is in the nature of speech, in the

absence of a threat, coercion, or intimidation intimating that

punishment, sanction, or adverse regulatory action will imminently

follow, such speech does not adversely affect a citizen’s First

Amendment rights, even if defamatory.” (Id. at 687).

Plaintiffs claim that Mr. Shellenberger, Mr. Dever and Ms.

Fox ordered Defendants Burrows and Tomas to tell Ms. Borkowski to

“‘stop going to [the Comm[issioner]’ or she] would face ‘criminal

charges.’” (ECF No. 81, ¶ 429). The County Defendants continue to

treat this as a mere allegation of coordination, (ECF No. 88-1, at

18), but the SAO Defendants now admit that such a directive was

issued in light of new evidence. (ECF No. 89-1, at 15) (citing ECF

No. 81-17).17 They explain that to qualify as harassment, Ms.

Borkowski needed to receive either a warning or a request that the

activity cease. (ECF No. 89-1, at 15).18 Thus, they admit,

“Baltimore County police detectives were sent to talk to Plaintiff

16 In fact, the court refers to the company plaintiff as a

“private citizen” throughout. See, e.g., Suarez, 202 F.3d at 688.

17 This exhibit, a note pad belonging to Detectives Burrows

and Tomas, says, “Scott . . . go talk to her . . . Lisa talking

. . . not charging by – stop going to comm[.] -Civil law suit or

worse criminal charges.”

18 Even if giving notice or a warning is an appropriate action,

it could be carried out in an inappropriate manner, thus

constituting retaliation.

Borkowski to tell her to stop going to the commissioner or she

would risk facing a civil law suit [sic] or criminal charges.”

(Id.). Plaintiffs also claim that Detective Burrows, acting on

SAO orders, illegally intercepted a lawfully issued summons. (ECF

No. 81, ¶¶ 397, 401-02) (citing ECF No. 81-18).19 SAO Defendants

implicitly concede that they reached out to the commissioner by

arguing that Plaintiff’s application for a “statement of charges

does not entitle a person to have charges issued.” (ECF No. 89-

1, at 12).

Plaintiffs argue that Detective Tomas “repeatedly called and

intimidated Ms. Borkowski.”20 (ECF No. 81, ¶ 433). Plaintiffs

further state that “armed patrol officer” Dorfler and Detectives

Burrows and Tomas arrived at Ms. Borkowski’s Baltimore home. (Id.,

¶ 435). When her grandmother answered the door, Defendant Burrows

“demanded to know the location of the nursing home [where Plaintiff

worked] and what time [she] would return home.” (Id., ¶ 436). She

also alleges that a video exists showing Officer Burrows

“pretending that she did not know Ms. Borkowski was represented by

counsel.” (Id., ¶ 438). Acting on orders from the trio at the

19 Plaintiffs do not state, however, that Ms. Borkowski knew

of this at the time, as discussed more fully below.

20 The Defendants repeatedly claim that the back and forth via

cell phone and voice mail was totally innocuous and part of their

routine investigatory work. (ECF No. 89-1, at 15-6). Such

arguments go to the merits of whether these calls were, in fact,

intimidating in nature and thus are not properly considered now.

SAO, Detectives Burrows and Tomas also contacted Ms. Borkowski

directly on her cell phone and “demanded” to know where she was.

(Id., ¶¶ 440-41).

The SAO Defendants accept Suarez as the relevant authority,

(ECF No. 100, at 15), as the previous opinion did, Borkowski, 414

F.Supp.3d at 811-12, and admit that they sent Detectives Burrows

and Tomas to deliver a message to Plaintiff. In contending that

this “speech” cannot be retaliation, they fail to evaluate the

facts in the light most favorable to Plaintiff. Instead, the facts

alleged can be construed to be exactly what Suarez prohibited: a

threat intimating that punishment will imminently follow.

Further, this speech combined with Defendants’ other alleged

conduct of repeatedly calling and showing up at Ms. Borkowski’s

house, makes out the kind of threat that would adversely affect a

citizen’s First Amendment rights by dissuading a person from

exercising those rights.

The County Defendants argue that because Plaintiffs admit

that Ms. Borkowski wasn’t home when the detectives arrived, the

complaint fails to allege the intimidating message was ever

delivered. (ECF No. 88-1, at 18). In their opposition to the SAO

motion to dismiss, Plaintiffs assert the TAC shows Ms. Borkowski

“knew” that the detectives were looking for her to discuss her

statement of charges in going to grandmother’s house and calling

her repeatedly. (ECF No. 96-1, at 37). The TAC is not entirely

clear on this front, but, viewed in a plaintiff-friendly light, it

can be inferred that Ms. Borkowski’s grandmother would have

conveyed to her granddaughter that the police arrived earlier that

day looking for her, as well as communicated the contents of their

questioning.

Plaintiffs also argue that the fact that Detectives Burrows

and Tomas obtained Ms. Borkowski’s Towson class schedule violated

the Fourth Amendment. (ECF No. 81, ¶ 442) (citing 81-24). This

allegation does not state an actual Fourth Amendment violation but

may be relevant to whether there was a concerted plan to intimidate

Ms. Borkowski from continuing to engage in protected activity

(filing a complaint).21 Plaintiffs also point to notes that reveal

that Officer Burrows knew that Ms. Borkowski was represented by an

attorney prior to attempting to make direct contact with her.

(Id., ¶ 439). Having police show up at one’s house and pose

demanding questions to one’s grandmother as to one’s whereabouts,

21 Even under the expansive view of privacy expressed in

Carpenter v. United States, 138 S.Ct. 2206, 2219 (2018), Ms.

Borkowski only has a “reasonable expectation of privacy in the

whole of [her] physical movements.” (emphasis added)). Obtaining

her class schedule is not analogous to a systematic tracking of

the entirety of her movement but is more akin to tracking “public

movement ‘voluntarily conveyed to anyone who wanted to look.’”

Id. at 2219-20 (citing U.S. v. Knotts, 460 U.S. 276, 281 (1983).

Further, Ms. Borkowski has undoubtedly voluntarily shared her

schedule with school administrators, thus defeating any reasonable

expectation of privacy in her schedule under traditional

principles. Id. at 2220 (citing Smith v. Maryland, 442 U.S. 735,

745 (1979)).

receiving repeated calls as to the same, and attempting to track

one down while in class would collectively chill a person of

ordinary firmness from attempting to refile a criminal complaint.

Lastly, it was only after Ms. Borkowski’s counsel inserted himself

into this situation by offering “to make Ms. Borkowski available

to Defendants” that Mr. Shellenberger ordered his fellow SAO

officials and Detectives Burrows and Tomas to cease their conduct.

(Id., ¶ 444) (“Scott [Schellenberger] said not to go b[e]c[ause]

of attorney.”) (citing ECF No. 81-25).22 These allegations support

a plausible inference that the SAO Defendants only ordered the

officers to back off once they realized their illegally

intimidating tactics would be discovered by her attorney. Thus,

Ms. Borkowski states a claim for First Amendment retaliation in

violation of 42 U.S.C. § 1985.

While the “intercept[ion]” by Detective Burrows of the

summonses from the District Commissioner before they were issued

might constitute intimidation when paired with her other conduct,

there is no evidence in the complaint that Ms. Borkowski knew of

this recall at the time. (Id., ¶401). In fact, Plaintiffs point

to Exhibit 18 of the TAC in support of this allegation, but this

merely shows a text message from Detective Burrows to a colleague

asking to inform her when the summons came in. (ECF No. 81-18).

22 A note to that effect appears on the Officer’s note pad.

(ECF No. 81-25).

Similarly, the TAC also appends email conversations between Mr.

Dever and Commissioner Wisniewski as to Ms. Borkowski’s successive

filing, but it does not actually mention the fact that the summons

was halted. (ECF Nos. 81-22, 81-23). Instead the email simply

says, “[t]he existing charges will be dismissed in court today.”

(ECF No. 81-23). More importantly, Ms. Borkowski would not have

been privy to any of these conversations at the time she approached

Commissioner Robey to file her claims and was subsequently denied

nor in the immediate aftermath. (ECF No. 81, ¶ 383). While in

retrospect, Ms. Burkowski claims she made a “second attempt” at

submitting an application for a statement of charges with

Commissioner Ellingson because of the “unlawful influence”

Defendants exerted on Commissioner Robey, there is no evidence

that she knew the actual reason for this initial denial at any

time prior to uncovering these communications in the course of

this lawsuit. Therefore, Ms. Borkowski has failed sufficiently to

allege that she could be reasonably intimidated by something she

has not established she knew about at the time. Neither the SAO’s

nor Detective Burrows’ conduct as it relates to intercepting the

summonses independently constitutes retaliation.

As to the last element, the TAC asserts that there “is an

affirmative causal link between Defendants’ inaction, false

assurance, concealment, witness intimidation, and the

constitutional injuries suffered by Plaintiffs.” (Id., ¶ 372).

Neither the County nor the SAO Defendants dispute that the conduct

in question was made in direct response to Ms. Borkowski’s

protected activity. Thus, there is a clear causal connection

between the conduct Ms. Borkowski plausibly alleges would chill a

person of ordinary firmness from attempting to refile charges with

the District Court Commissioner.

Once a plaintiff carries her burden of showing a

constitutional violation has occurred, the burden is on the

defendant as to whether that right was clearly established at the

time of the alleged misconduct for qualified immunity to apply.

Feminist Maj. Found. v. Hurley, 911 F.3d. 674, 703-06 (4th Cir.

2018).

The County Defendants argue that Detectives Burrows and Tomas

are protected by qualified immunity on Count II as they are

“unaware” of any caselaw that would clearly establish that any of

the following is First Amendment violation:

(1) to speak with a district court

commissioner concerning an application for

charges on a matter that the State’s Attorney

had already declined to prosecute; (2) to

investigate a person who filed serial

applications for charges in such a case; (3)

to intercept, at the direction of a

prosecutor, a summons on a charge known to the

officer to be dismissed; or (4) to follow the

direction of a prosecutor to caution a person

known to have been filing serial applications

for charges not to do so.

(ECF No. 88-1, at 20-21). The first, second, and third form of

conduct alluded to is no longer at issue. Similarly, the SAO

Defendants argue that “there is no case law or statute which

establishes that a State’s Attorney cannot send the police to warn

a person to stop engaging in harassing or annoying behavior.” (ECF

No. 89-1, at 18). As discussed above, however, even if Defendants

have a right to “caution a person” against filing serial

applications, this does not mean that their manner of exercising

that right is insulated from oversight.

It is the method of contacting Ms. Borkowski, carried out on

behalf of the SAO, that states a First Amendment retaliation claim.

Suarez itself provided notice in 2000 that threats or intimidation

(even by speech) violates the First Amendment if done in

retaliation of protected speech. Suarez, 202 F.3d at 687.

Moreover, Plaintiffs also point to Fourth Circuit precedent that

has established that the First Amendment is violated through “self-

censorship” when conduct would deter a person of ordinary firmness

from exercising their rights. Benham v. City of Charlotte, N.C.,

635 F.3d 129, 136 (4th Cir. 2011). Either of these cases disproves

the Defendants’ claim that “no caselaw” exists clearly

establishing this right to be free from intimidation in applying

for a statement of charges. Defendants have failed to carry their

burden in showing that either the SAO Defendants or Detectives

Burrows and Tomas are entitled to qualified immunity. Their

motions to dismiss Count II will be denied.

c. Monell Liability

Confusingly, Count II alleges that Baltimore County is also

liable for various conduct, despite not naming it as an actual

defendant in this Count. For instance, Plaintiffs allege that a

“conspiracy was undertaken in furtherance of Baltimore County’s

and Mr. Petersen and Mr. Sheridan’s [23] policy to conceal reports

of sexual assault.” (ECF No. 81, ¶ 417). Defendants correctly

point out this is the sole reference in this count to the County.

(ECF No. 88-1, at 21). In fact, the County Defendants show that

elsewhere in the TAC Plaintiffs negate their own claim on this

front by acknowledging that the SAO Defendants and the two

detectives operated without the knowledge of the BCPD Chief of

Police. (ECF No. 88-1, at 21) (citing ECF No. 81, ¶¶ 427, 434).

Even ignoring this obvious contradiction, Plaintiffs have

failed to make out a claim based on Monell liability against the

County. Municipalities, unlike public officials, are not

protected by qualified immunity. See Owen v. City of Independence,

445 U.S. 622, 638 (1980). Monell v. N.Y. City Dept. of Soc.

Servs., 436 U.S. 658, 691 (1978), however, limits liability to a

23 Neither of these individuals is named as a Defendant in

this count either. In fact, the County Defendants correctly point

out that Petersen is not even named as a defendant in this case.

(ECF No. 88-1, at 21 n. 11).

municipality’s own illegal act. (finding a municipality “cannot

be held liable solely because it employs a tortfeasor”). Instead,

a municipality is liable under § 1983 where “it follows a custom,

policy, or practice by which local officials violate a plaintiff’s

constitutional rights.” Owens v. Balt. City St.’s Att’ys Off.,

767 F.3d 379, 402 (4th Cir. 2014) (citing Monell, 436 U.S. at 694).

Here, Plaintiffs do not even rebut the County Defendants claim

that County officials were unaware of the conduct in question,

which is likely fatal to the claim. Failure to respond to this

argument is likely fatal to this claim. See Faller v. Faller, No.

DKC 09-0889, 2010 WL 3834874 at * 6 (D.Md. Sept. 28, 2010); see

also Ferdinand-Davenport v Child.’s Guild, 742 F.Supp.2d 772, 777

(D.Md. 2010). Regardless, the County Defendants correctly point

out that Plaintiffs’ reformulation of the Monell claim in their

opposition does little to salvage it. (ECF No. 101, at 7).

Plaintiffs’ attempt to sidestep their otherwise fatal

inability to connect the County to any of the conduct in this count

by arguing that the decisions of the SAO can be imputed to the

county in carrying out County policy. Defendants are correct that

this assertion is highly confusing and unavailing. (Id.). In

particular, Plaintiffs rely on Pembaur v. City of Cincinnati, 475

U.S. 469 (1986), to argue that a “a county prosecutor’s direction

to the Sheriff’s Department . . . implicated municipal liability

pursuant to Monell.” (ECF No. 96-1, at 34). In Pembaur, however,

municipal liability was founded on the fact that the police were

ordered by the County Prosecutor and not a State prosecutor, as

here. As the County Defendants correctly argue, moreover, the

case turned on Ohio law and Ohio law specifically established that

the County prosecutor was to establish County policy. (ECF No.

101, at 7-8) (emphasis added). Here there is no such Maryland

law, and, in fact, the SAO has a duty to represent that State, not

county. (Id., at 8) (citing Md. Code. Ann., Crim. Proc. §15-102).

Plaintiffs have failed to establish that the County or that County

“policy” had any part to play in the conduct alleged under Count

II. Therefore, the claim as to the County under Monell fails and

any attempt to amend the complaint to add the County as a defendant

under this count would therefore be futile. Count II as it relates

to the County and any invocation of Monell liability will be

dismissed.

3. The Fourth Amendment

In Count XII, Ms. Borkowski, Ms. Hendler, Ms. Frank, and the

“Invasive Testing Subclass” bring claims against Defendants

Baltimore County, Johnson, Sheridan, Peterson, Brady,24

24 As with Count I, this count lacks precision in that it

names the alleged policy makers at BCPD en masse without fully

clarifying their role in this alleged Fourth Amendment violation.

Count XII simply baldly asserts that all “personally participated

in crafting the unlawful policies followed by BCPD Defendants.”

(ECF No. 81, ¶ 743).

Shellenberger, and Dever for an alleged violation of the Fourth

Amendment.

Plaintiffs argued in their SAC that the failure to inform

victims that the SAEKs would be destroyed without being used to

solve any crimes nullified the consent given by victims. The

previous opinion 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.’” Borkowski, 414 F.Supp.3d at 817

(citing Ferguson v. City of Charleston, 308 F.3d 380, 397 (4th Cir.

2002)). Because Plaintiffs did not allege in their SAC that they

understood the SAFE exams were conducted by medical personnel for

medical purposes, rather than for crime detection, Plaintiffs

failed to allege a Fourth Amendment violation. The fact that some

SAEK evidence was destroyed after the examinations occurred did

not vitiate the consent given when the exams were conducted.

In their TAC, Plaintiffs now argue that their consent was

invalid because they were “deceived” into believing “that the

examination would be an initial piece of evidence in the

prosecution of their assailants,” (ECF No. 81, ¶ 745), when in

reality, “[County] Defendants worked with [SAO Defendants], over

the course of several years, to carry out a policy that destroyed

SAEKs while safeguarding evidence in other crimes.” (Id., ¶ 156).

“Had the victims known [that the SAEKS would be destroyed without

being used to solve any crimes], they would not have consented.”

(Id., ¶ 739). To support the allegation that a “policy and custom

of uncessar[ily] destr[oying] SAEKs” existed, Plaintiffs assert

that between 2010 and 2018 a total of “1,032 SAEKs [were]

collected” and of those, “only 614 [] remain,” “approximately forty

percent (40%) have been destroyed,” and “only thirteen percent

(13%) were tested for the presence of DNA.” Id. at 146-48. They

further assert that “[b]etween 2010 and 2018 the County destroyed

655 SAEKs.”25 (Id. at ¶ 740).

County Defendants counter that the reason Ms. Borkowski and

Ms. Hendler’s SAEKs were not tested for DNA was because the

identity of their alleged assailants was known and the alleged

assailants “did not deny sexual contact but claimed it was

consensual.” (ECF No. 88-1, at 36).

For the County Defendants to have deceived Plaintiffs, and

thus vitiated their consent, Plaintiffs would have to allege

plausibly that Defendants never had any intent to retain or test

Plaintiffs’ SAEKs. They have not done so. Furthermore, because

Plaintiffs allege that 13% of all SAEKs collected between 2010 and

2018 were tested for DNA evidence, they have not plausibly alleged

that the County Defendants had a blanket policy of not testing any

25 Plaintiffs’ math does not add up and they do not attach any

underlying documents that would allow for clarification.

SAEKs. Thus, even taken in the light most favorable to Plaintiffs,

the facts alleged fall well short of plausibly alleging an absence

of good faith intent by County Defendants to use Ms. Borkowski and

Ms. Hendler’s SAEKs for law enforcement purposes. Accordingly,

consent was not vitiated, and no Fourth Amendment violation can be

found.

With respect to the Invasive Test Subclass claim, the GMBC

consent forms expressly “authorize the transmittal of a copy of

all medical records, other information created, and evidence

collected pursuant to the examination to the Police Department.”

(ECF Nos. 81-7, at 4; 81-50, at 1). Thus, even if “SAFE subjects

are not told [that the collection of evidence pursuant to a SAFE

is not medical treatment for the benefit of a patient]” they are

on clear notice that the SAEKs are used for law enforcement

purposes. These circumstances are notably different from those in

Ferguson, where “[n]either th[e] language, nor anything else in

[the] form[s], advised or even suggested to Appellants that their

urine might be searched for evidence of criminal activity for law

enforcement purposes.” 308 F.3d at 399.

Plaintiffs further argued in their SAC that the consent forms

were inadequate to allow victims to give informed consent. This

argument was dismissed because Plaintiffs did not allege that any

individual Defendant played any role in the creation of GBMC’s

consent forms. (ECF No. 67, at 58). Plaintiffs’ TAC still does

not allege that any individual Defendant played any role in the

creation of GBMC’s consent forms. Accordingly, Count XII will be

dismissed as to all Defendants.26

D. 42 U.S.C. § 1985(2)

Count III alleges a conspiracy to deprive Ms. Borkowski of

her civil rights. Count VII alleges a conspiracy to obstruct

justice in relation to Ms. Frank’s Equal Protection claims. The

court previously dismissed both counts for failure sufficiently to

plead class-based animus as required by § 1985(2).27 The second

clause of § 1985(2) applies when two or more persons:

26 Plaintiffs add Lieutenant Peterson and Sergeant Brady as

Defendants to Count XII without stating whether such addition is

in their individual or official capacity. The court need not

address this addition because the count will be dismissed in its

entirety. Further, to the extent that this claim is asserted

against Baltimore County as a defendant, it fails under Monell; as

the County Defendants correctly argue, Ms. Borkowski, Ms. Hendler

and Ms. Frank failed to point to any “[constitutional] violation

by any county actor, let alone pursuant to an official policy or

custom.” (ECF No. 88-1, at 39 n. 17). The allegation that GMBC

is an “agent” of Baltimore County is based entirely on the fact

that it received state funding and that Baltimore County

“controlled” their investigatory operations. (ECF No. 81, ¶ 735).

Plaintiffs fail factually to support this blanket assertion of

control.

27 Plaintiffs’ TAC clarifies that Counts III and VII are both

brought under 1985 subsection two. The TAC does not clarify the

previously noted ambiguity as to whether the claim falls under the

first or second clause of subsection two. The court previously

analyzed this claim under the second clause noting that Plaintiffs

SAC only made 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.”). Because Plaintiffs have not added any

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[.]

42 U.S.C. § 1985(2). Stating a violation requires adequate

allegation of class-based animus. See Kush v. Rutledge, 460 U.S.

719, 726 (1983) (“The 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.”). “In order to prove a section

1985 conspiracy, a claimant must show an agreement or a meeting of

the minds by defendants to violate the claimant’s constitutional

rights.” Facey v. Dae Sung Corp., 992 F.Supp. 2d 536, 541 (D.Md.

2014). This is a “relatively stringent standard”, and the Fourth

Circuit “has rarely, if ever, found that a plaintiff has set forth

sufficient facts to establish a section 1985 conspiracy.” Simmons

v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). A court must dismiss

a Section 1985 claim “whenever the purported conspiracy is alleged

in a merely conclusory manner, in the absence of concrete

supporting facts.” (Id.).

reference to any federal court proceedings, the court will continue

to analyze this claim under the second clause.

1. Conspiracy to Deprive Civil Rights

Count III alleges that SAO and County Defendants conspired

“by preventing Ms. Borkowski, from attending and testifying

freely, fully, and truthfully, in a judicial proceeding,” by

“intimidat[ing] [her] from giving testimony before a Maryland

District Court Commissioner” and by “prevent[ing] [her] from

filing criminal charges as permitted by Maryland law.” (ECF No.

81, ¶¶ 457-59).28 University officials Dr. Hrabowski and Mr. Sparks

are also alleged to have “failed to adequately train, supervise,

or discipline Defendant Dillon and their other subordinates.”

(Id., ¶ 601).

Plaintiffs argue in their opposition and TAC that Defendants

“employed facially discriminatory customs and policy, departed

from usual proceedings, and treated one class of victims

differently from others,” (ECF No. 98, at 9) and that, “Ms.

Borkowski[’s] self-advocacy threatened Defendants’ desire to

protect male suspects from allegation of sexual assault.” (ECF

No. 81, ¶ 462). County Defendants argue that Count III fails

because Ms. Borkowski has not pleaded class-based animus or a

meeting of the minds and, even if she did, the claim is barred on

28 SAO Defendants point out that Ms. Borkowski includes Ms.

Fox as a defendant in her heading but fails to make any allegations

against Ms. Fox in the body of the count.

qualified immunity grounds.29 SAO Defendants likewise argue that

Plaintiffs’ claim falls based on its failure to allege facts to

support a conspiracy and failure to plead class-based animus. (ECF

No. 89-1, at 16-17).

The additional assertions in Plaintiffs’ TAC are too

conclusory to allege sufficiently that any Defendants were

motivated by discriminatory animus. In particular, Plaintiffs’

allegation that “Defendants [acted out of a] desire to protect

male suspects from allegations of sexual assault” continues to

attempt shotgun style pleading despite the court’s previous order.

Likewise, the facts put forward by Plaintiffs demonstrating

discrepancies in the SAO treatment of rape and sexual assault cases

is insufficient to allege plausibly gender-based animus because

such facts do not reflect how male victims are treated for those

crimes and thus, do not reflect that male victims are treated

differently. Finally, the factual allegations contained in

Plaintiffs’ TAC do not rise to the level of concreteness required

to meet the “relatively stringent” standard set by the Fourth

Circuit in Poe for alleging a conspiracy.

29 County Defendants also argue that Counts III, V, and VIII

warrant dismissal because Plaintiffs have abandoned them by not

responding to the arguments raised in the County’s motion to

dismiss. (Compare ECF No. 88-1 at 22-26, 34-35 and ECF No. 96-1).

2. Conspiracy to Obstruct Justice

Count VII alleges that Defendants Dillon and Jagoe conspired

with Defendant Lee to block Ms. Frank’s report of sexual assault

to the police in violation of 42 U.S.C. §1985(2). (ECF No. 81 at

¶ 613).

The University Defendants argue that the claim must be

dismissed as to Defendants Dillon and Jagoe (1) for continued

failure to allege class-based animus and (2) because they are

immune from suit in both their official and individual capacity.

(ECF No. 102, at 3-8). As to Mr. Lee, Defendants argue that the

claim fails sufficiently to allege a conspiracy. They point out

that his name appears in only eleven allegations and “not one of

them alleges or implies gender discrimination.” (ECF No. 88-1, at

33) (citing ECF No. 81, ¶¶ 582, 583, 584, 586, 587, 588, 589, 594,

613, 614). Instead Mr. Lee’s entire involvement as to an alleged

conspiracy consists of one conclusory sentence: “Defendants

Dillion and Jagoe conspired with Defendant Lee to block Ms. Frank’s

report of sexual assault to the police.” (Id., at 35) (citing ECF

No. 81, ¶ 613). Plaintiffs fail to address either of the

University Defendants’ arguments as to Officers Dillon and Jagoe.

(See generally ECF No. 96-1). While Plaintiffs do not expressly

rebut the claim as to Officer Lee, they simply re-highlight that

he drove to UMBCPD and informed Ms. Frank that they had no record

of her reported incident. (Id. at 9) (citing ECF No. 81, ¶¶ 583-

90). Implicitly this is meant to support their claim that “no

action was being taken into [Ms. Frank’s] reported second-degree

rape,” (ECF No. 96-1, at 9) and the allegation in their complaint

that “Defendant Lee was overtly uninterested in taking Ms. Frank’s

report.” (ECF No. 81, ¶ 583).

As mentioned, a failure to respond to a facially valid

argument in an opponent’s motion might sometimes be fatal to a

claim. See Ferdinand-Davenport, 742 F.Supp.2d at 777. The TAC

itself fails to state a claim. The only additional fact alleged

in Plaintiffs’ TAC to support Count VII is that, “No such denial

of [Equal Protection] would have occurred if [Ms. Frank] were a

male crime victim, as Defendants’ bias against female complainants

of sexual assault would not have guided them.” (ECF No. 86-1, at

18) (citing ECF No. 81, ¶¶ 617-18). Such a blanket assertion

patently fails to “plead specific facts in a nonconclusory manner.”

Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). Plaintiffs

have not put forth any useful comparative fact reflecting how Chief

Dillion or Mr. Jagoe treated male victims of sexual assault in

contrast to female victims or, as described above, any other fact

sufficient to show class-based animus. As these officers’

underlying conduct does not plausibly show class-based animus,

neither can Dr. Hrabowski and Mr. Sparks be held responsible in

their “supervisory” capacity. (ECF No. 81, ¶ 602). Thus,

Plaintiffs again fail to state a § 1985(2) claim.

E. 42 U.S.C. § 1986

Ms. Borkowski argues in Count V that Defendants

Shellenberger, Dever, Fox of the SAO and Defendants Burrows, Tomas,

Montogomery, and Dorfler neglected to prevent conspiracy in

violation of 42 U.S.C. § 1986.

As the court previously noted:

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).

Borkowski, 414 F.Supp.3d at 816. It follows that, because

Plaintiffs’ have once again failed to make out a viable § 1985

claim, the § 1986 claim in Count V must be dismissed.

F. 20 U.S.C. § 1681

Plaintiffs bring various claims under Title IX of the Civil

Rights of 1964 (“Title IX”). Counts IX, X, XI, XIII, and XIV are

brought on behalf of various Plaintiffs and purport to assert

different types of violations. The statute generally prohibits

discrimination on the basis of sex in educational programs or

activities receiving federal benefits. Plaintiffs purport to

bring claims arising from several different manifestations of

discrimination. For some, Plaintiffs label the cause of action as

“Discrimination/Deprivation of Educational Access,” without

particularization. For others, the claim is designated as

“Deliberate Indifference” or “Erroneous Outcome.” In campus

disciplinary proceedings:

Some circuits use formal doctrinal tests to

identify general bias in the context of

university discipline. For example, the Second

Circuit channels such claims into two general

categories. Yusuf v. Vassar Coll., 35 F.3d

709, 715 (2d Cir. 1994). In what has come to

be called the “erroneous outcome” category,

the plaintiff must show that he “was innocent

and wrongly found to have committed the

offense.” Id. The other category, “selective

enforcement,” requires a plaintiff to prove

that “regardless of [his] guilt or innocence,

the severity of the penalty and/or the

decision to initiate the proceeding was

affected by the student's gender.” Id.; see

also Plummer v. Univ. of Hous., 860 F.3d 767,

777–78 (5th Cir. 2017) (resolving the case by

reference to the Yusuf framework); Doe v.

Valencia Coll., 903 F.3d 1220, 1236 (11th Cir.

2018) (“[W]e will assume for present purposes

that a student can show a violation of Title

IX by satisfying the ‘erroneous outcome’ test

applied by the Second Circuit in Yusuf.”). The

Sixth Circuit has added two more categories to

the mix: “deliberate indifference” and

“archaic assumptions.” See Doe v. Miami Univ.,

882 F.3d 579, 589 (6th Cir. 2018) (recognizing

“at least four different theories of

liability” in this context: “(1) ‘erroneous

outcome,’ (2) ‘selective enforcement,’ (3)

‘deliberate indifference,’ and (4) ‘archaic

assumptions’ ” (citations omitted)).

Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019). Not every

category is, however, applicable to a person who is the

complainant, as opposed to the respondent. For instance, according

to Doe v. Baum, 903 F.3d 575, 588 (6th Cir. 2018):

The deliberate-indifference theory was

designed for plaintiffs alleging sexual

harassment. See Horner v. Ky.High Sch.

Athletic Ass’n, 206 F.3d 685, 693 (6th Cir.

2000)(explaining that the deliberate

indifference test arose from Supreme Court

cases that “all address deliberate

indifference to sexual harassment). And though

sexual harassment is a form of discrimination

for purposes of title IX, Davis v. Monroe Cty.

Bd. Of Educ., 526 U.S. 629, 649-50 (1999), we

have held that to plead a Title IX deliberate

indifference claim, “the misconduct alleged

must be sexual harassment,” not just a biased

disciplinary process. Miami Univ., 882 F.3d

at 591.

1. Discrimination and Deliberate Indifference

a. Marcela Fegler

Ms. Fegler brings Count XIII against Defendant UMBC as

“deliberately indifferent” to Ms. Fegler’s reports of sexual

assault as well as her claims of harassment and retaliation she

experienced in reporting this assault. (ECF No. 81, ¶¶ 746-769).

Defendants correctly argue that the vast majority of the conduct

alleged was dismissed in the previous opinion as it was time

barred.30 Here, however, as the University Defendants readily

admit, (ECF No. 86-1, at 20-21), Ms. Fegler argues, for the first

30 She filed the lawsuit in September 2018, which was more

than three years (the applicable statute of limitations for Title

IX claims) after the “final adjudication” of her sexual misconduct

complaint in February 2015. (ECF No. 102, at 14); Borkowski, 414

F.Supp.3d at 819.

time, that the alleged harassment and retaliation that she endured

after making her complaint to UMBC continued even after it “forced

[her] to leave UMBC.” (ECF No. 81, ¶¶ 764-65). Further, she says

that UMBC “was aware of the harassment but did nothing.” (Id.,

¶ 759). Nonetheless, the University Defendants move to dismiss

this count because “Ms. Fegler does not allege that she reported

this alleged harassment to UMBC, does not make any specific

allegations as to how or when UMBC was made aware of the alleged

harassment, and does not allege what UMBC could have done to stop

it.” (ECF No. 86-1, at 21). More basically, they argue that the

statute of limitations still acts as a bar as the alleged continued

harassment would (presumably) have occurred at some point during

Spring 2015 semester, after she transferred, and thus would still

be time barred. (Id.).

Plaintiff does not directly refute that the alleged and

continued harassment would have occurred in Spring 2015, not long

after her student jury trial in January 2015. (ECF No. 97-1, at

37). Instead she simply re-asserts that harassment continued for

some indefinite time after she transferred and thus, “as a matter

of law” the point at which she was “damaged” is not fixed. (ECF

No. 97-1, at 37). Implicitly she argues, therefore, that UMBC’s

duty extended beyond its adjudication of the matter before it and

to stopping the continued harassment. Nowhere does Plaintiff put

dates to the incidents of harassment that continued after her

transfer, however. She simply argues this factual determination

cannot be made, so such a decision is premature.

Plaintiffs are correct that, as an affirmative defense, the

statute of limitations should not be adjudicated on a motion to

dismiss, unless the timeframe of alleged and relevant conduct is

clear from the complaint itself. In adjudicating civil rights

claims, the Fourth Circuit has announced that “continuing effects

of a previous discriminatory act do not extend the running of the

statute of limitations.” Lendo v. Garrett Cty. Bd. of Educ., 820

F.2d 1365, 1368 (4th Cir. 1987) (citing Delaware St. Coll. V. Ricks,

449 U.S. 250 (1980) (refusing to extend the statute of limitations

in a § 1983 claim for the effects of previous discriminatory acts

that fell outside the timely period)); see also Stanley v. Trs. of

Cal. St. Univ., 433 F.3d 1129, 1136 (9th Cir. 2006) (“[D]iscrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges” in

finding that the continuing violation doctrine does not save a

time barred Title IX claim) (citing Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 112-13 (2002)).

Defendants point out that the claim of continuing harassment,

as it relates to UMBC, revolves solely around the fact that they

“were aware of the harassment but did nothing.” (ECF No. 86-1, at

21). However, as they point out, nowhere in the complaint does

Count XIII allege how or when this continued harassment, occurring

after Ms. Felger switched schools, was brought to UMBC’s attention.

(Id.) (citing No. 81, ¶¶ 746-69). Ms. Fegler explains that the

harassment occurred after “one of the UMBC basketball players”

warned a basketball player at her new school about her, but she

never claims that word of this reached UMBC. (ECF No. 81, ¶ 765).

Equally importantly, Ms. Fegler fails to show that, even if UMBC

did know about this harassment, it had any power or ability to

stop it. (ECF No. 86-1);(ECF No. 102, at 15).

In short, all this harassment is said to have spilled out

from UMBC’s (mis)handling of her case. UMBC’s conduct as to this

claim does, therefore, have a fixed end: when UMBC adjudicated the

matter during a student jury trial in January 2015. (ECF No. 86-

1, at 22). Even if the harassment that occurred after the trial

was considered, Plaintiffs themselves argue that “damages

reasonably flowed from the conduct which UMBC is charged,” in

determining the timeline of relevant events. (ECF No. 97-1, at

38). Such an allegation demonstrates that Plaintiffs are

attempting to save the complaint because of alleged continuing

effects that are not themselves actionable conduct by the Defendant

UMBC. The facts of the complaint clearly demonstrate that any

otherwise actionable conduct by UMBC occurred outside of the

applicable three-year statute of limitations. The allegations

contained in Count XIII remain time-barred and the count will be

dismissed.

b. Anna Borkowski and Annemarie Hendler

Count XI alleges a violation of 20 U.S.C. § 1681 for

deprivation of educational access and deliberate indifference by

Anna Borkowski and Annemarie Hendler against UMBC. The previous

opinion stated, “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.” Borkowski, 414 F.Supp.3d at 820. In

turn, because Ms. Borkowski and Ms. Hendler did not attend UMBC

but were, instead, Towson University students at the time of the

incident, thus they still lack standing to bring this claim. (ECF

No. 86-1, at 23).

As it relates to Title IX standing, the previous opinion

states:

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

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).

Borkowski, 414 F.Supp.3d 788 at 820 (string citations omitted). In

arguing that the previous opinion is still applicable here, the

University Defendants point to highly persuasive First Circuit

caselaw wherein a Providence College student attempted to sue Brown

University under Title IX in similarly bringing claims of sexual

assault claims against three Brown students. (ECF No. 86-1, at

23) (citing Doe v. Brown Univ., 896 F.3d 127, 131 (1st Cir. 2018)

(affirming the district court opinion that plaintiff had no right

to sue as Brown lacked any “authority or capacity to take

corrective action on behalf of Doe with regard to her education at

Providence College”)).

In response, Plaintiffs argue that because UMBC accepted Ms.

Borkowski (“and later Ms. Hendler”) as a “Reporting Party” to the

Title IX investigation against their students (the alleged

assailants), that this is enough to confer standing on Ms.

Borkowski. (ECF No. 97-1, at 34-35). Plaintiffs attempt to

distinguish Doe v. Brown University on this front in explaining

that there Brown made it clear that it would only conduct an

inquiry under its own “Code of Student Conduct” and not Title IX,

despite the plaintiff’s request to launch an investigation under

the latter. (Id.). The University Defendants are right to label

this argument “confusing,” but it seems to argue, as they surmise,

that even though UMBC similarly investigated under their own

“Policy on Prohibited Sexual Misconduct, Interpersonal Violence,

and Other Related Misconduct,” (ECF No. 81-39), Ms. Borkowski and

Ms. Hendler were granted rights under Title IX in being labeled a

“Reporting Party” as part of an Title IX administrative proceeding.

(ECF No. 97-1, at 34).

The University Defendants correctly argue that, “[t]he mere

fact that UMBC investigated the three respondents to determine if

their actions violated UMBC’s [policy] does not mean the UMBC owed

Ms. Borkowski and Ms. Hendler duties under Title IX.” (ECF No.

86-1, at 25). In fact, the previous opinion makes clear they were

not owed such a duty and Plaintiffs have not cured this central

defect. Ms. Hendler and Ms. Borkowski were not deprived of any

form of access or benefit from UMBC because they were not students

there. Count XI will be dismissed for a lack of standing.

2. Erroneous Outcome

In Count IX, Plaintiffs allege an “erroneous outcome” claim

against Defendant UMBC based on gender discrimination due to the

allegedly biased investigation by Ms. Hunton into Ms. Frank’s

complaint of sexual assault. Defendant UMBC argues that

Plaintiffs’ TAC “fail[s] to allege any new facts that remedy [the

previous] deficiencies, and [its] allegations are substantially

identical as to those in the SAC. (ECF No. 86-1, at 28) (comparing

ECF. No 81, ¶¶ 659-99 with ECF No. 21, ¶¶ 318-44). The only new

allegation [is] that UMBC allowed her alleged assailant back on

campus during the investigation. (ECF No. 81 at ¶680-81).

[Plaintiffs] fail[] to allege any facts showing how that single

fact resulted in a fundamentally flawed investigation . . . [and]

still fail[] to plausibly allege any bias on behalf of the hearing

board and/or appellate board that reviewed Ms. Hunton’s

investigation, took testimony, and reviewed Ms. Frank’s complaint

on appeal.” (ECF No. 86-1, at 25).

Plaintiffs respond by emphasizing alleged deficiencies in how

Ms. Hunton conducted the investigation, such as denying additional

time for Ms. Frank to retrieve deleted text messages and failing

to interview witnesses known to have knowledge of Ms. Frank’s

intoxication level. (ECF No. 97-1, at 26-27). Plaintiffs also

argue that they do plausibly alleged gender bias by analogizing

the facts here to two erroneous outcome cases in which gender bias

was found to be sufficiently alleged. Id. at 23-25.

In drawing these analogies, Plaintiffs have overlooked the

critical fact that both Doe v. Purdue Univ., 928 F.3d 652, 656 (7th

Cir. 2019) and Doe v. Columbia Univ., 831 F.3d 46, 48 (2nd Cir.

2016), involved instances in which the erroneous outcome claim was

brought by the accused student, not the victim. This fact is

dispositive. Erroneous outcome claims exist to remedy the rights

of a person who is improperly disciplined by the university. See

Yusuf v. Vassar College, 35 F.3d 709, 715 (1994) (Title IX

erroneous outcome claims “bar[] the imposition of university

discipline where gender is a motivating factor in the decision to

discipline . . . [such claim are appropriately brought only by]

“[p]laintiffs attacking a university disciplinary proceeding on

grounds of gender bias . . . [typically,] the claim is [either]

that the plaintiff was innocent and wrongly found to have committed

an offense [or that] regardless of the student's guilt or

innocence, the severity of the penalty and/or the decision to

initiate the proceeding was affected by the student's gender.” Id.

at 715. In contrast, deliberate indifference claims exist as a

remedy for the victim to charge that the university’s “response to

known discrimination [wa]s clearly unreasonable in light of the

known circumstances.” Doe ex rel. Doe v. Derby Bd. of Educ., 451

F.Supp.2d 438, 447 (D.Conn. 2006) (quoting Hayut v. St. Univ. of

N.Y., 352 F.3d 744, 751 ((2d Cir. 2003)) (emphasis added). In

short, Title IX erroneous outcome claims and Title IX deliberate

indifference claims are mutually exclusive.

Because Plaintiffs’ opposition rests on arguing by analogy to

two inapposite cases and no new material facts have been alleged,

Plaintiffs have failed to cure the deficiencies contained in their

SAC. Accordingly, Plaintiffs Count IX will be dismissed.

3. Denial of Educational Opportunities

a. Katelyn Frank

Count VIII alleges a violation of 20 U.S.C. § 1681 for

Deprivation of Educational Access by Katelyn Frank against

Defendant UMBC. It revolves around Plaintiffs claim that

“Defendants Dillon and Jagoe (UMBCPD) conspired with Defendant Lee

(BCPD) to block Ms. Frank’s report of sexual assault to police.”

(ECF No. 81, ¶ 613). The TAC further asserts that Mr. Jagoe was

an agent of Chief Dillon in being “tasked with covering up reports

of rape and sexual assault by Defendant Dillon.” (Id., ¶ 615).

The “purpose of the deception was to further dissuade Ms. Frank

from filing a report with BCPD.” (Id., ¶ 616). In fact,

“Defendant Dillon refused to initiate a mandatory Title IX process

or take steps to ensure her safety until Ms. Frank signed the

statement.” (Id., ¶ 648). Instead UMBC simply had Ms. Hunton, as

a Title IX attorney, investigate and prepare a draft and final

report as to the allegations. (Id., ¶ 652). Plaintiffs argue

that the ultimate “result” of this conspiracy was to deny Ms. Frank

and “other similarly situated female victims of sexual assault

generally, their right to equal protection.” (Id., ¶ 617). They

similarly assert “such denial” would not have occurred if Ms. Frank

were a man. (Id., ¶ 618). As in the SAC, Ms. Frank is alleged to

have lost “one year of education time” and “suffered severe

emotional injury, a decline in academic performance and lost

tuition.” (Id., ¶¶ 654, 657).

It is entirely unclear what claim Plaintiffs actually put

forth here or under what standard. As was said before, Plaintiffs,

“fail to provide any relevant legal citation or standard to analyze

a deprivation of educational opportunities under Title IX.”

Borkowski, 414 F.Supp.3d at 821.

University Defendants consistently construe this claim as one

of deliberate indifference. (ECF No. 86-1, at 25); (ECF No. 102,

at 13). As such, they argue that the allegations fail to state a

claim. For one, they argue that Chief Dillon, central to the

complaint, did not have the authority criminally to charge or

prosecute reports of first-degree rape by the terms of the

Memorandum of Understanding between UMBC and BCPD which Plaintiffs

append to their complaint. (ECF No. 86-1, at 26) (citing ECF No.

81-27). Moreover, the complaint itself admits that Defendant

Dillon did reach out to Lieutenant Michael Peterson of the BCPD.

(Id., ¶ 591). The other evidence pointed to as evidence that UMBC,

in fact, did carry out such an investigation, (See, e.g, ECF No.

87-4) (Ms. Hunton’s final report), however, goes beyond the

allegations in the complaint and is not properly considered here.

(See ECF No. 86-1, at 26). Nonetheless, University Defendants

argue that the facts, even as laid out by Plaintiffs, demonstrate

that UMBC fully complied with its Title IX obligations. (Id., at

27). But nowhere in its opposition to the motion to dismiss by

the University Defendants do Plaintiffs rebut these claims as to

this count. (See generally ECF No. 97-1).

The Defendants are correct to frame this as a deliberate

indifference claim. While that phrase itself is not used in this

portion of the complaint, “[d]eliberate indifference may be found

both when the defendant’s response to known discrimination is

clearly unreasonable in light of the known circumstances, and when

remedial action only follows after a length and unjustified delay.”

Derby Bd. of Educ., 451 F.Supp.2d at 447 (quoting Hayut 352 F.3d

at 751 (2d Cir. 2003)) (emphasis added). Other courts have

clarified that this remedy is available to a student who is a

complainant, but not a respondent, to a Title IX claim. See, e.g.,

Doe v. Quinnipiac Univ., 404 F.Supp.3d 643, 664 (D.Conn. 2019);

Doe v. Miami Univ., 882 F.3d 579, 590 (6th Cir. 2017) (quoting

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999)) (“[A]

deliberate-indifference claim premised on student-on-student

misconduct must allege ‘harassment that is so severe, pervasive,

and objectively offensive that it effectively bars the victim’s

access to an education opportunity or benefit.’”). Not only must

the institution have actual notice of the harassment but “authority

to institute corrective measures.” Doe v. Miami Univ., 882 F.3d

at 590 (citing Mallory v. Ohio Univ., 76 Fed.Appx. 634, 638 (6th

Cir. 2003)).

In discussing Davis, other circuits have highlighted that the

“deliberate indifference” of an institution must itself subject a

student to further discrimination. See, e.g., Williams v. Bd. of

Regents of Univ. Sys. Of Georgia, 477 F.3d 1282, 1295-96 (11th Cir.

2007). The Williams court explained:

First, Title IX requires that the plaintiff

prove that the deliberate indifference

occurred in response to discrimination she

faced. Davis, 526 U.S. at 633. Second, as

Davis requires, a Title IX recipient “may not

be liable for damages unless its deliberate

indifference ‘subject[s]’ its students to

harassment. That is, the deliberate

indifference must, at a *1296 minimum, ‘cause

[students] to undergo’ harassment or ‘make

them liable or vulnerable’ to it.” Id. at 644–

45 (citing Random House Dictionary of the

English Language 1415 (1966)) (defining

“subject” as “to cause to undergo the action

of something specified; expose” or “to make

liable or vulnerable; lay open; expose”);

Webster's Third New International Dictionary

2275 (1961) (defining “subject” as “to cause

to undergo or submit to: make submit to a

particular action or effect: EXPOSE”). Based

on the Davis Court's language, we hold that a

Title IX plaintiff at the motion to dismiss

stage must allege that the Title IX

recipient's deliberate indifference to the

initial discrimination subjected the

plaintiff to further discrimination.

Id. at 1295-96 (string citations omitted).

Here the only underlying student-on-student on harassment is

the alleged sexual assault itself. (ECF No. 81, ¶ 624). As

Plaintiffs argue, “[s]exual assault is sexual harassment in its

most severe form and constitutes discrimination within the meaning

of Title IX.” (ECF No. 97-1, at 13) (citing Feminist Maj. Found.

911 F.3d at 686 and Davis, 526 U.S. at 650). However, as the

Fourth Circuit has made clear, “it 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.

v. Bd. of Ed. Of Harford Cty., 819 F.3d 69, 77 (4th Cir. 2016)

(stressing that “Davis sets the bar high for deliberate

indifference”) Id. at 76-77. While the school was clearly aware

of Ms. Frank’s alleged sexual assault (in her reporting it), there

is no allegation that harassment continued, let alone that UMBC’s

alleged failure to respond properly to her complaint caused further

discrimination. She alleges only that, “[a]fter being assaulted,

and the subsequent investigation, Ms. Frank suffered severe

educational setbacks.” (ECF No. 81, ¶ 653). However, as stated,

it is not enough to state an institution failed to eliminate

student-on-student harassment or that they failed to impose the

disciplinary actions a plaintiff seeks.

Moreover, this is not a case where an institution ignored

harassment that was occurring for years. See S.B. ex rel, 819

F.3d at 74. On the country, the complaint itself suggests “UMBC

complied with its Title IX obligations” in the face of Ms. Frank’s

initial complaint. (ECF No. 86-1, at 27). While Plaintiffs claim

that “Defendant Dillon refused to initiate a mandatory Title IX

process or take steps to ensure her safety until Ms. Frank signed

the statement” but stop short of arguing that the school failed to

address her claims at all. (ECF No. 81, ¶ 846). In fact, as a

seemingly routine response, they assigned Ms. Hunton to

investigate the case. (Id., ¶ 652). Plaintiffs explain, “[i]n

the course of her investigation, Defendant Hunton provided Ms.

Frank with advice as to what she should and should not do.” (Id.).

Even seen in the light most favorable to Plaintiffs, they fail to

show such alleged “deliberate indifference” subjected her to any

further discrimination. Plaintiffs fail to state a claim for

deliberate indifference under Count VIII. The count will be

dismissed.

b. Kaila Noland

Count XIV alleges violation of 20 U.S.C. § 1681 for

Deprivation of Educational Access by Kaila Noland against

Defendant UMBC. Plaintiff Noland states that she was sexually

assaulted in Baltimore County, reported her assault to UMBC, and

that UMBC’s failure to expel her alleged assailant resulted in her

leaving her laboratory position at UMBC. (ECF No. 81, ¶¶ 770,

772-73, 777).

As was true of Count VIII, Count XIV is wholly unclear what

claim Plaintiffs are setting out here as they, “fail to provide

any relevant legal citation or standard to analyze a deprivation

of educational opportunities under Title IX.” Borkowski, 414

F.Supp.3d at 821. Defendant UMBC, however, consistently treats

Count XIV as a deliberate indifference claim in its motion to

dismiss, (ECF No. 86-1, at 25), and reply (ECF No. 102, at 13),

and Plaintiffs state in the body of the count that “Defendant UMBC

was deliberately indifferent to Ms. Noland’s reports of rape in

that they assigned a biased investigator to pantomime an

investigation into the sexual assault complaint made by Ms.

Noland.” (ECF No. 81, ¶ 784). Thus, Count XIV will be construed

as a deliberate indifference claim.

Deliberate indifference, as mentioned, occurs when the

defendant’s “response to known discrimination is clearly

unreasonable.” Derby Bd. of Educ., 451 F.Supp.2d at 447 (quoting

Hayut, 352 F.3d at 751). A Title IX recipient “‘may not be liable

for damages unless its deliberate indifference subject[s]’ its

students to harassment . . . . That is, the deliberate indifference

must, at a minimum, ‘cause [students] to undergo’ harassment or

‘make them liable or vulnerable’ to it.” Williams 477 F.3d at

1295-96 (citing Davis, 526 U.S. at 644-45).

No further instances of harassment have been alleged at all

here. Ms. Noland simply asserts that because “her assailant [was

not] banned from campus, [she] was forced to leave her laboratory

job for another campus.” (ECF No. 81, ¶ 787). The TAC does not

assert that the alleged assailant, an agent of his, nor any other

party, ever had any contact whatsoever with Ms. Noland at the lab

or anywhere else following the assault. Moreover, even if there

was an allegation of furthering harassment, Plaintiffs do not

allege that anyone at UMBC was aware of it.

Defendants point out that the allegation of hiring a biased

investigator is unsupported and contradicted by “Plaintiffs’

complaints and the underlying investigation documents” which

“demonstrate that UMBC conducted investigations into Plaintiffs’

complaints and Plaintiffs were given ample opportunity to respond

in the process.” (ECF No. 86-1, at 25). This may be true but

goes beyond the TAC and is irrelevant because, as stated above,

Plaintiffs are required to allege, but have not, that any further

instances of discrimination occurred. Accordingly, Count XIV will

be dismissed.

4. Failure to Prevent Sexual Harassment

In Count X, Plaintiffs argue that UMBC failed to prevent Ms.

Frank’s sexual assault because it knew her alleged assailant had

previously sexually assaulted others. The court previously

dismissed this claim finding it fell “far short of proper pleading”

because “Plaintiffs d[id] not allege any details as to when the

alleged assaults occurred, whom the assailant assaulted, the

nature of the allegations, or who at UMBC knew about such alleged

assaults.” Borkowski v. Balt. Cty., Md., 414 F.Supp.3d 788, 822

(D.Md. 2019).

The only new allegations in Plaintiffs’ TAC are that “[o]n

information and belief, [a] fellow female student reported Ms.

Frank’s assailant for sexual assault the previous year,” (ECF No.

81, ¶ 702), and “[h]ad Defendant Hunton conducted an objective and

complete investigation, this critical fact would have been

disclosed (assuming UMBC retained records of reported

assaults).” (Id., ¶ 703). Defendant UMBC argues, even with the

additional allegations, the TAC does “not remedy the deficiencies

[previously] identified” because it still does “not allege any

details as to when the alleged assaults occurred, whom the

assailant assaulted, the nature of the assaults, or whom at UMBC

knew about such alleged assaults.” (ECF No. 86-1 at 29).

Plaintiffs do not respond to Defendant’s argument in their

Opposition. (See generally ECF 97-1).

Because Plaintiffs’ TAC does not allege with any specificity

when the alleged assault occurred, who at UMBC knew about it, or

the nature of the allegations, they have failed to state a claim

upon which relief can be granted. Thus, Count X will be dismissed.

IV. Motion to Seal

Defendant Hunton has filed a motion to seal Exhibit 1, (ECF

No. 91), to her Memorandum of Points and authorities in Support of

her motion to dismiss. (ECF No. 92-1).

The Fourth Circuit has stated that:

It is well settled that the public and press

have a qualified right of access to judicial

documents and records filed in civil and

criminal proceedings. See Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555,

580 n.17 (1980); Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597

(1978); Media Gen. Operations, Inc. v.

Buchanan, 417 F.3d 424, 428 (4th Cir. 2005).

The right of public access springs from the

First Amendment and the common-law tradition

that court proceedings are presumptively open

to public scrutiny. Va. Dep’t of State Police

v. Wash. Post, 386 F.3d 567, 575 (4th Cir.

2004). “The distinction between the rights of

access afforded by the common law and the

First Amendment is significant, because the

common law does not afford as much substantive

protection to the interests of the press and

the public as does the First Amendment.” In

re United States for an Order Pursuant to 18

U.S.C. Section 2703, 707 F. 3d 283, 290 (4th

Cir. 2013) (quoting Va. Dep’t of State Police,

386 F.3d at 575)(internal quotation marks

omitted). The common-law presumptive right of

access extends to all judicial documents and

records, and the presumption can be rebutted

only by showing that “countervailing interests

heavily outweigh the public interests in

access.” Rushford, 846 F.2d at 253. By

contrast, the First Amendment secures a right

of access “only to particular judicial records

and documents,” Stone, 855 F.2d at 180, and,

when it applies, access may be restricted only

if closure is “necessitated by a compelling

government interest” and the denial of access

is “narrowly tailored to serve that interest,”

In re Wash. Post Co., 807 F.2d 383, 390 (4th

Cir. 1986) (quoting Press–Enter. Co. v.

Superior Court, 464 U.S. 501, 510 (1984)

(internal quotation marks and string citations

omitted)).

Doe v. Public Citizen, 749 F.3d 246, 265-66 (4th Cir. 2014). Local

Rule 105.11 requires the party seeking sealing to include “(a)

proposed reasons supported by specific factual representations to

justify the sealing and (b) an explanation why alternatives to

sealing would not provide sufficient protection.” Before sealing

any documents, the court must provide notice of counsel’s request

to seal and an opportunity to object to the request before the

court makes its decision. See In re Knight Publi’g Co., 743 F.2d

231, 235 (4th Cir. 1984). Either notifying the persons present in

the courtroom or docketing the motion “reasonably in advance of

deciding the issue” will satisfy the notice requirement. Id. When

a motion to seal is denied, the party making the filing ordinarily

will be given an opportunity to withdraw the materials. Local

Rule 105.11.

Ms. Hunton’s motion asks that Exhibit 1 be sealed in that it

contains her “Final Investigative Report” as to Ms. Frank’s Title

IX complaint contains “sensitive information directly related to

individuals who were then UMBC students.” (ECF No. 92-1, at 2).

These “education records” are covered by the Family Educations

Rights and Privacy Act. (Id.) (citing 20 U.S.C. § 1232(g)). It

also includes sensitive and “graphic” details of Ms. Frank’s

personal life and the lives of her alleged assailants and other

third-party witnesses. Lastly, it argues that sealing the entire

exhibit is the most efficient way to maintain confidentiality.

Review of the exhibit corroborates the sensitivity of Ms. Hunton’s

underlying report and that there would be no way to effectively

redact this investigative report while having it maintain

coherence. The motion to seal is granted.

University Defendants also filed Exhibits 2, 3, 4, 5, 8, 9,

10, 11, 12, 13 and 16 of their motion to dismiss under seal,

without an accompanying motion to seal. (ECF No. 87). Although

numbered differently, these exact same Exhibits were attached to

their previous motion to dismiss (ECF No. 47), and a motion to

seal was granted. (ECF No. 48). For the reasons previously stated

for sealing these exhibits, Borkowski, 414 F.Supp.3d at 822, they

may remain under seal.

V. Conclusion

For the foregoing reasons, the motions to dismiss filed by

the University Defendants and Bernadette Hunton will be granted

and the motions to dismiss filed by the County and SAO Defendants

will be granted in part and denied in part. A separate order will

follow.

/s/

DEBORAH K. CHASANOW

United States District Judge