# Borkowski v. Dever

> District Court, D. Maryland · September 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10204228

## Case

- **Court:** District Court, D. Maryland
- **Decided:** September 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10204228

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

:
ANNA BORKOWSKI, et al.
:

v. : Civil Action No. DKC 18-2809

:
BALTIMORE COUNTY, MARYLAND,
et al. :

MEMORANDUM OPINION
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10204228. Public record. Not legal advice.