Jackson v. Baltimore Curriculum Project, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

L.J., *

*

Plaintiff, *

v. * Civil Case No. SAG-20-2433

*

BALTIMORE CURRICULUM PROJECT, *

et al., *

*

Defendants. *

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

Plaintiff L.J.1 (“Plaintiff”), as Mother and Next Friend of T.G., a Minor, filed a Complaint

against Defendants Baltimore Curriculum Project, Inc. d/b/a City Springs Elementary School

(“BCP”); Baltimore City Board of Schools Commissioners (“BCBSC”); Laura Doherty,

Individually and in her Official Capacity as Chief Executive Officer of BCP; Rhonda Richetta,

Individually and in her Official Capacity as Principal of City Springs Elementary School; and

Timothy Randall Korr. ECF 8. BCBSC and Richetta (the “BSBSC Defendants”) moved to

dismiss together, as did Korr, separately.2 ECF 16, ECF 18-1. Plaintiff opposed both motions.

1 Plaintiff filed suit using her initials, L.J. While it is undoubtedly appropriate to allow her minor

son to proceed anonymously per Fed. R. Civ. P. 5.2(a)(3), it is not clear what justification she has

for proceeding anonymously herself. With the stated exception of cases involving minors, “[e]very

action shall be prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 17. While the

Fourth Circuit has recognized exceptions to this rule in “exceptional circumstances,” proceeding

by pseudonym is a “rare dispensation.” Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014).

This does not appear to be a case warranting such treatment, particularly since there has been

extensive news coverage of the incident underlying her Complaint, much of which identifies

Plaintiff by name. As such, the Court will order Plaintiff to show cause as to why she should be

permitted to proceed anonymously in light of the Federal Rules of Civil Procedure and Fourth

Circuit case law suggesting that such an approach is generally disfavored.

2 BCP and Doherty have answered, ECF 17, and all claims against those Defendants will proceed

to discovery.

ECF 2, ECF 25. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that

follow, both BCBSC’s and Korr’s motions to dismiss will be granted in part and denied in part.

I. FACTUAL BACKGROUND

These facts are derived from Plaintiff’s Complaint and are taken as true for purposes of

adjudicating the motions to dismiss. During the 2016-2017 school year, T.G. was a seven-year-

old first grader at City Springs Elementary School. ECF 8 ¶ 9. T.G. suffers from various

disabilities such as Intellectual Disability, Attention Deficit Hyperactivity Disorder, and anger

issues. Id. On November 28, 2016, Korr was summoned to T.G.’s classroom because T.G. was

misbehaving. Id. ¶ 31. Korr began walking T.G. to the principal’s office. Id. Korr then grabbed

T.G. and slung him over his shoulder. Id. T.G. resisted briefly before submitting. Id. ¶ 32.

With T.G. on his shoulder, Korr continued walking and descended to the first-floor

stairwell. Id. ¶ 35. At that point, Korr smashed T.G.’s face into the wall. Id. T.G. went limp and

unresponsive. Id. ¶ 42. This incident was observed by three different school officials. Two of

those individuals saw Korr carry T.G. on his shoulder and did not intervene. Id. ¶ 31, 34. Another

saw Korr smash T.G.’s face into the wall or, at a minimum, was present for the aftermath. Id. ¶

37-39. This man also failed to render aid to the injured T.G. Id.

The police were called to the school to investigate, at which point Richetta had already

viewed a recording of the incident via the school’s CCTV system. Id. ¶ 51. Richetta then showed

the video to an officer on the scene and told the officer that Korr fell down the steps or lost his

footing and that T.G. threw himself into the wall. Id. ¶ 51, Fig. 4. Johns Hopkins Hospital was

ultimately advised that T.G. had a gun at the time of the incident. Id. ¶¶ 46, 143.

Following the incident, Korr was charged with Second Degree Child Abuse. A number of

individuals at City Springs Elementary supported Korr throughout the trial, filling the courtroom

during Korr’s sentencing wearing shirts in his support and publishing an anonymous document

indicating how school officials were devastated by Korr’s absence. Id. ¶ 55, 115.

II. LEGAL STANDARDS

Defendants’ motions to dismiss allege that Plaintiff has failed to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6). ECF 17, 18. A defendant is permitted to test the legal sufficiency of a

complaint by way of a 12(b)(6) motion. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir.

2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). Such a motion

constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the

complaint fails as a matter of law “to state a claim upon which relief can be granted.”

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to

provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state

a claim to relief that is plausible on its face.” Id. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684

(2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions.’”); see

also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed

factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal

pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal

theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per

curiam).

Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly,

550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a

complaint provides no more than “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the

minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken

as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is

improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks

omitted).

In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual

allegations contained in the complaint” and must “draw all reasonable inferences [from those facts]

in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440

(4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567

(4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However,

a court is not required to accept legal conclusions drawn from the facts. Papasan v. Allain, 478

U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the

legal conclusions from the factual allegations, assuming the truth of only the factual allegations,

and then determining whether those allegations allow the court to reasonably infer” that the

plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d

342, 346 (4th Cir. 2011), cert. denied, 566 U.S. 937 (2012).

III. ANALYSIS

A. Immunity and Respondeat Superior

Before delving into the substance of the various claims, the Court must first address the

several immunity arguments put forth by the BSBSC Defendants at various points in their Motion.

First, they allege that BCBSC, as an arm of the state, enjoys immunity against state constitutional

torts alleged by Plaintiff and against vicarious liability for torts committed by Korr and Richetta.

See ECF 18-1 at 18 (citing Baltimore Police Dep’t v. Cherkes, 140 Md. App. 282 (2001)).3

Plaintiff, on the other hand, attempts to distinguish Cherkes by arguing that BCBSC is a local

government entity, not a state entity, and therefore is liable for civil damages resulting from State

constitutional violations. ECF 25 at 15-16 (citing Prince George’s County v. Longtin, 19 A.3d

859, 885 (2011)). Despite Plaintiff’s contention, “it is well established that the relationship

between local boards of education and the State of Maryland is sufficiently close to make the

boards an arm of the state.” Downing v. Baltimore City Bd. of Sch. Comm'rs, No. CIV.A. RDB-

12-1047, 2012 WL 6615017, at *4 (D. Md. Dec. 18, 2012) (compiling cases). To that end, BCBSC

“is undoubtedly a state agency because it bears all of the key indicia—state law creates and controls

the Board, it serves a state purpose, and the Mayor and Governor appoint the Board members from

a list of individuals submitted by the State Board of Education.” Id.; see also Baltimore City Bd.

of Sch. Comm'rs v. Koba Inst., Inc., 194 Md. App. 400, 411 (2010) (referring to BCBSC as a “state

agency”).

As a state agency, BCBSC is immune from state constitutional tort claims under Cherkes.

780 A.2d at 428-429 (explaining that common law sovereign immunity for state agencies is total

and covers both common law and constitutional torts). Nothing in Longtin suggests otherwise.

Rosa v. Bd. of Educ. of Charles County, Md., 2012 WL 3715331 at 10 (D. Md. Aug. 27, 2012)

(“The Longtin court neither stated nor intimated that plaintiffs could institute pattern or practice

3 BCBSC and Richetta also make the related assertion throughout their Motion that they are entitled

to Eleventh Amendment immunity as an arm of the state, such that any § 1983 claims made by

Plaintiff must be dismissed. Plaintiff does not make any § 1983 claims against BCBSC or Richetta,

however, so these arguments are inapposite.

claims against state government agencies . . . [and it is] exceedingly unlikely that the Court of

Appeals of Maryland would have ushered in such a radical change in legal landscape sub

silentio.”). Therefore, to the extent that Plaintiff seeks to hold BCBSC liable for state

constitutional torts or common law torts, Defendants’ motion to dismiss will be granted on

common law sovereign immunity grounds.

Next, Defendants assert that Richetta individually is entitled to qualified immunity for any

constitutional violations alleged arising out of the statements she made to police during their

investigation, because she was a public official performing a discretionary function. ECF 18-1 at

6-9. Defendants’ brief does not specify the claims they allege to be affected by such immunity.

The portions of the Complaint against Richetta individually do not allege constitutional violations

but rather two types of civil conspiracy, defamation, and intentional infliction of emotional

distress. Each of these claims against Richetta is a state law claim, rendering Defendants’

invocation of § 1983 case law on qualified immunity unavailing. Instead, Maryland’s common

law qualified immunity applies. “[T]he Maryland common law qualified immunity enjoyed by

public officials in the performance of discretionary acts is quite limited and is generally applicable

only in negligence actions or defamation actions based on allegedly negligent conduct.” Smith v.

Danielczyk, 400 Md. 98, 129 (2007) (internal citations omitted). It does not apply to the sort

intentional conduct Richetta is alleged to have carried out, id., nor does the statutory immunity for

school board employees embodied in MD. CODE ANN., CTS. & JUD. PROC. § 5-518(e). See also

Neal v. Baltimore City Bd. of Sch. Commissioners, 467 Md. 399, 406 (2020) (“[A] board employee,

acting within the scope of her employment, is shielded from personal liability if she was not acting

with malice or gross negligence. . . .”).

The same result is true of Defendants’ apparent attempt to invoke public official immunity.

Once again, Defendants’ brief is unclear as to the specific claims for which they wish to invoke

public official immunity, leaving it up to Plaintiff and the Court to decipher their argument.

Maryland does not recognize public official immunity as a defense to intentional torts alleged

against individual officials. See Ashton v. Brown, 339 Md. 70, 117 (Md. 1992) (stating that

“[p]ublic official immunity is not a defense to these intentional torts,” including assault, battery,

false imprisonment, and intentional infliction of emotional distress). Likewise, public official

immunity does not protect state officials from state constitutional torts. See Ritchie v. Donnelly,

324 Md. 344, 370 (1991) (“[A] public official who violates the plaintiff’s right under the Maryland

Constitution is personally liable for compensatory damages.”). Because the claims asserted

against Richetta lie outside the purview of public official immunity, the BCBSC Defendants’

attempt to invoke such immunity fails.

B. Count I – Unlawful Seizure & Excessive Force

Plaintiff’s first claim is against Defendant Korr individually, alleging that he violated 42

U.S.C. § 1983 and the Maryland constitution when he allegedly seized T.G., threw T.G. over his

shoulder, and slammed T.G. against a wall. ECF 8 ¶¶ 75-85. In response, Korr contends that

minors have limited liberties as to their physical freedom and are, by law, regularly subject to the

control of school administrators like Korr. ECF 16 at 3. According to Korr, this reduced liberty

for minors, combined with public schools’ “custodial and tutelary” powers over their students,

allows school administrators to seize students like T.G. for disciplinary and safety reasons. Id.

Importantly, however, the seizure power that Korr cites is not unconstrained. Seizures of students

must “reasonably related in scope to the circumstances which justified [it] in the first place.”

Wofford v. Evans, 390 F.3d 318 (4th Cir. 2004) (discussing seizure of students in the context of

Fourth Amendment claims). Here, Plaintiff alleges that, in response to a request to escort T.G. to

the principal’s office due to T.G.’s behavioral difficulties, Korr “picked T.G. up and slung him

over his shoulder like a sack of potatoes,” before “grab[bing] T.G. with both hands from his

shoulder . . . and then smash[ing] T.G.’s face into the wall.” ECF 8 ¶¶ 31, 35. At this early stage

of the proceedings and drawing all factual inferences in Plaintiff’s favor, such factual allegations

plausibly suggest that Korr’s seizure of T.G. exceeded its reasonable scope, given the lack of

apparent justification for Korr’s alleged brutal handling of T.G.4

C. Count II – Conspiracy to Commit Deprivation of Civil Rights

Count II of the Complaint alleges that Richetta conspired with Korr to deprive T.G. of his

civil rights under the Maryland constitution by attempting to influence the police to abandon their

criminal investigation into Korr through their misleading statements about the incident and the

video recording. ECF 8 ¶¶ 86-93. Richetta moves to dismiss on the grounds that Plaintiff failed

to sufficiently allege an “agreement or understanding to accomplish an unlawful act” between Korr

and herself. ECF 18-1 at 9-10. While it is true that there are no factual allegations in the Complaint

asserting that Richetta and Korr ever discussed the incident or agreed to plan a coverup, Maryland

law requires only an “understanding” between two or more people in order to allege a civil

conspiracy. Marshall v. James B. Nutter & Co., 758 F.3d 537, 541 (4th Cir. 2014) (quoting

Hoffman v. Stamper, 385 Md. 1 (2005)).

4 Korr argues that he had been told that T.G. claimed to have a gun and that a toy gun was later

found in his possession, suggesting that his rough handling of T.G. was justified. ECF 16 at 4.

While the Complaint notes that Johns Hopkins was notified of the presence of a gun in T.G.’s

possession and suggests that this was a manufactured threat to justify Korr’s actions post-incident,

it does not include any factual allegations regarding the actual existence of a gun. Therefore, such

allegations are not appropriate for consideration at the motion to dismiss phase. Edwards v. City

of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Korr may, of course, continue to argue the

reasonableness of his conduct as the case proceeds.

Plaintiff provided sufficient factual allegations regarding Richetta’s conduct to plausibly

allege an understanding with Korr to cover up his allegedly tortious handling of T.G., including

Richetta’s claiming “that Korr had lost his footing,” “that T.G. ‘hit himself’ on the wall,” and “that

T.G. had brought a gun to school and was brandishing the gun.” ECF 8 ¶ 46. These alleged facts

align with the allegations regarding Korr’s “[false] claim that T.G. was in possession of a gun,” id.

¶ 49, and his contemplation of “various false statements that he would tell other school staff in an

effort to conceal his odious conduct,” Id. ¶ 42. While additional facts would no doubt be required

to prove understanding sufficient to constitute a conspiracy between Richetta and Korr, the Court

must draw all factual inferences in Plaintiff’s favor at this early stage of the litigation. As such,

the Court concludes that Korr and Richetta’s alleged parallel false statements support a plausible

claim of a civil conspiracy to cover up Korr’s conduct.

D. Count III – Eighth Amendment Violation

In Count III, Plaintiff alleges that Korr violated T.G.’s Eighth Amendment protection

against “cruel and unusual punishment.” ECF 8 ¶¶ 94-102. The Supreme Court has unequivocally

held that the Eighth Amendment does not apply to school students. Ingraham v. Wright, 430 U.S.

651, 651 (1977). Plaintiff urges the Court to depart from Ingraham based on a variety of policy

arguments, ECF 8 ¶ 98, but provides no legal justification for doing so. This Court is not

empowered to disregard such clearly established Supreme Court precedent merely because

Plaintiff thinks it would be a good idea to do so. Count III will therefore be dismissed for failing

to state a claim, because the Eighth Amendment does not apply to the treatment of schoolchildren.

E. Count IV – Failure to Train

Count IV alleges that Defendants BCP and BCBSC violated the Maryland Declaration of

Rights via its alleged policy or practice of failing to adequately train and supervise its employees

in relation to their contact with students. ECF 8 ¶¶ 103-110. As noted above in Section III(A),

BCBSC is a state agency and as such has common law sovereign immunity against state

constitutional tort claims. Cherkes, 780 A.2d at 424. Count IV is therefore dismissed as to

BCBSC.

F. Count V – Custom of Unconstitutional Conduct

In Count V, Plaintiff alleges that BCP and BCBSC permitted a custom of unconstitutional

conduct to exist at City Springs Elementary School in violation of the Maryland Declaration of

Rights. While the Complaint does not identify what, precisely, the unconstitutional custom in

question is alleged to be, the factual allegations suggest that it is a custom allowing the seizure and

physical abuse of children in the name of discipline and school safety. ECF 8 ¶¶ 111-117. Once

again, BCBSC is shielded from liability as a matter of law because it is a state agency and enjoys

common law sovereign immunity against state constitutional tort claims. Cherkes, 780 A.2d at

424. Count V will be dismissed as to BCBSC.

G. Count VI – State-Created Danger

Count VI alleges that BCP and BCBSC violated their special duty to assure T.G.’s safety

and well-being, a duty allegedly arising out of Korr’s seizure of T.G. implicating the so-called

“state-created danger” doctrine. ECF 8 ¶¶ 118-23. The state-created danger doctrine imposes

liability on the state for harm caused by private actors in situations where 1) the private conduct

would have violated a constitutional right had it been carried out by the state and 2) the state

increased the risk of harm to its citizens through its own affirmative acts. See DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. 189, 200-01 (1989). Put differently, a state

entity can be held liable under this theory, even though the harm was inflicted by a private party,

if the state’s actions or policies played a part in the creation of the danger or otherwise made the

victim more vulnerable to it. While this doctrine is well-established in the context of federal

constitutional claims, Plaintiff here alleges only state-created danger in the context of violations

of the Maryland Declaration of Rights. ECF 25 at 21.

Maryland “has not adopted [the state-created danger doctrine] as a basis upon which to

recover for violations of Maryland’s Constitution.” McNack v. State, 398 Md. 378, 392-93 (2007).

What is more, the McNack court specifically noted that the state-created danger theory “has only

been discussed in the context of claims brought under 42 U.S.C. § 1983” for alleged violations of

rights protected by federal law, and read DeShaney to indicate that “it is up to the state legislatures

and courts to establish the parameters for liability, if any, of each states’ governmental actors with

respect to civil remedies for alleged violations of an individual’s state constitutional rights.” Id.

at 393. Thus, while McNack did not foreclose future adoption of the state-created danger theory

as a basis for recovery under the Maryland Constitution, it also expressly stated that 1) the theory

has not yet been adopted and 2) if it is to be adopted, it would be done so by the state legislatures

and courts. Against this backdrop, this Court concludes that Plaintiff has failed to state a claim as

to the state-created danger theory, since the McNack court explicitly held that such a theory has

not yet been adopted by the Maryland courts or legislature. Count VI will therefore be dismissed.

H. Count IX – False Imprisonment

Count IX of the Complaint is a state law tort claim alleging that Korr falsely imprisoned

T.G.5 ECF 8 ¶¶ 132-34. Korr moves to dismiss, arguing that school administrators are authorized

to detain students for disciplinary action for up to two hours, and that his detaining of T.G. was

both temporally brief and otherwise appropriate for the behavioral difficulties T.G. was exhibiting.

ECF 16 at 7-9. Under Maryland law, the elements for false imprisonment are “a deprivation of

5 Korr did not move to dismiss Counts VII or VIII.

the liberty of another without his consent and without legal justification.” Great Atl. & Pac. Tea

Co. v. Paul, 261 A.2d 731, 738 (Md. 1970).

Plaintiff has plausibly alleged that Korr lacked legal justification for his handling of T.G.

While Korr focuses his arguments on the duration of T.G.’s detention, the thrust of Plaintiff’s

claim is not that the seizure was too long or that school administrators do not have the authority to

seize students without consent for disciplinary reasons generally, but rather that this seizure—and

in particular the manner it was carried out—lacked legal justification. Specifically, the Complaint

alleges that the tortious imprisonment involved Korr “pick[ing] T.G. up and [slinging] him over

his shoulder like a sack of potatoes,” and then “grab[bing] T.G. with both hands from his shoulder

. . . and then smash[ing] T.G.’s face into the wall.” ECF 8 ¶¶ 31, 35. While the Complaint does

note that T.G. was experiencing “behavioral difficulties” and that he initially resisted Korr after

being thrown over his shoulder, id. ¶¶ 10, 31-32, such facts cannot conclusively support a finding

that Korr’s seizure of T.G. was justified as a matter of law, particularly at this early stage of the

litigation in which all factual inferences—regarding the extent of T.G.’s behavioral issues and the

severity of Korr’s handling of T.G. in response—must be resolved in Plaintiff’s favor.

I. Count X – Defamation

Count X alleges that Korr, Richetta, BCP, and BCBSC defamed Plaintiff via statements

Korr and Richetta made during the police investigation surrounding the incident with T.G. ECF

¶¶ 135-149. Plaintiffs must establish four elements in a prima facie case of defamation: “(1) that

the defendant made a defamatory statement to a third person, (2) that the statement was false, (3)

that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby

suffered harm.” Offen v. Brenner, 402 Md. 191, 198 (2007) aff'd, 450 Md. 468 (2016) (citing Smith

v. Danielczyk, 400 Md. 98 (2007)). BCBSC and Richetta6 contend that the “plain and natural

meaning” of Richetta’s statements was not defamatory, that she did not make the statements to the

public, and that her alleged statements are not her own words but rather those of the police officer

authoring the police report containing them. ECF 18-1 at 23-24. Additionally, Defendants assert

that Plaintiff has not established that she (via T.G.) suffered any actual damages. Id.

Each of these arguments is unsuited for resolution at the motion to dismiss phase of this

litigation. The Complaint plausibly alleges several specific, false statements made by Richetta.

Any contention about whether Richetta’s statements were genuinely false, whether she knew or

recklessly disregarded their falsity, or whether she in fact said those false statements to the police

officer authoring the report, are points of factual dispute better addressed as the litigation proceeds.

Additionally, Maryland law does not require a false statement to be made to the public, but rather

only “to a third person,” Offen, 402 Md. at 198, which Plaintiff clearly alleges given that Richetta

is alleged to have made the false statements to a police officer. Lastly, regarding Defendants’

assertion that Plaintiff has not plausibly alleged injury resulting from the defamation, Plaintiff is

seeking presumed damages, ECF 8 ¶ 149. In Maryland, presumed damages may be awarded in

private defamation cases where the plaintiff satisfies the “constitutional malice” standard, which

requires evidence of defendant's “knowledge of falsity or reckless disregard for truth.” Seley-

Radtke v. Hosmane, 450 Md. 468, 503 (2016). Here, Plaintiff has plausibly alleged that Richetta

knew her statements about T.G.’s injury were false, because she viewed the video before making

them. Thus, Plaintiff has sufficiently and plausibly plead a defamation claim.

Additionally, while BCBSC is generally entitled to sovereign immunity as outlined in

Section III(A), it has waived such immunity with regard alleged tortious acts of employees like

6 Korr, in his separate motion to dismiss, does not expressly contest the defamation claim.

Richetta. See MD. CODE ANN., CTS. & JUD. PROC. § 5-518; see also Neal, 467 Md. at 422 (“[W]hen

a board employee acts within the scope of employment and with malice or gross negligence, the

employee does not have immunity and the employee (as well as the board) remains liable [under

§ 5-518].”). Thus, Count X may additionally proceed against BCBSC.

J. Count XI – Civil Conspiracy

Count XI is nearly identical in scope to the Count II claim for Conspiracy to Commit

Deprivation of Civil Rights covered in Section III(B) of this opinion—the only difference being

that the conspiracy at issue in Count XI pertains to violations of Maryland common law rather than

its Declaration of Rights. Defendants’ arguments in favor of dismissing Count XI mirror their

arguments to dismiss Count II and fail for the same reasons. Drawing all factual inferences in

Plaintiff’s favor, the Court concludes that the parallel false statements Korr and Richetta are

alleged to have made support a plausible claim of a civil conspiracy to cover up Korr’s conduct.

K. Count XII – Vicarious Liability for Maryland State Law Claims Against

Korr

Count XII alleges that BCP and BCBSC should be held vicariously liable for the common

law tort claims alleged against Korr in Count VII (Negligence), VIII (Battery), and IX (False

Imprisonment). As noted above in Section III(A), BCBSC is a state agency and holds common

law state sovereign immunity from all tort claims, including those seeking to attach liability to the

agency under a theory of respondeat superior. See Cherkes, 140 Md. App. at 303-306. While

BCBSC has waived sovereign immunity to torts alleged against its employees, board members,

and volunteers pursuant to MD. CODE ANN., CTS. & JUD. PROC. § 5-518, Korr does not fit any of

those categories since he worked for BCP, not BCBSC.7 Plaintiff points out that BCP runs City

7 Plaintiff cites to Ford v. Baltimore City Sheriff’s Office, 814 A.2d 127, 133-34 (Md. App. 2002),

as evidence that the state has waived sovereign immunity. ECF 25 at 15. However, Ford involved

Springs Elementary under BCBSC’s supervision, pursuant to Maryland statute. ECF 25 at 14

(citing MD. EDUC. § 9-102(11)). She suggests that this statutory link between BCP and BCBSC

makes Korr a state actor who functionally wielded authority that BCBSC delegated to BCP and,

by proxy, him. Id. Even if one were to accept Plaintiff’s line of reasoning, waivers of sovereign

immunity are strictly construed in favor of the sovereign. Bd. of Educ. of Baltimore Cty. v.

Zimmer-Rubert, 409 Md. 200, 212 (2009). As such, this Court cannot read § 5-518 to broadly

waive immunity for tort claims against individuals like Korr who are not actual BCBSC

employees, board members, or volunteers and instead operate, at best, in a gray area of delegated

BCBSC authority. Count XII will therefore be dismissed as to BCBSC.

L. Count XIII – Intentional Infliction of Emotional Distress

Count XIII alleges that Richetta intentionally inflicted emotional distress upon T.G. by

lying to the police in order to interfere with the criminal investigation into Korr and the school. In

order to plausibly allege intentional infliction of emotional distress (“IIED”), the alleged conduct

must “be intentional or reckless; the conduct must be extreme and outrageous; there must be causal

connection between the wrongful conduct and the emotional distress; and the emotional distress

must be severe.” Lee v. Pfeifer, 916 F. Supp. 501, 506 (D. Md. 1996) (quoting Harris v. Jones,

281 Md. 560 (Md. 1977)). In addition, “[t]o be actionable, the conduct alleged must be ‘so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id. at 507.

the Maryland Tort Claims Act (“MTCA”), whose general waiver provision is not implicated here

because BCBSC is subject to the separate, specific waiver provision found in MD. CODE ANN.,

CTS. & JUD. PROC. § 5–518 covering the same ground. See Proctor v. Washington Metro. Area

Transit Auth., 412 Md. 691, 712 (2010) (“[T]he Legislature intended that the MTCA serve as a

‘gap-filler’ to waive [sovereign immunity] in tort when no other statute expressly waived the

agency’s immunity. If such a statute is in place . . . the MTCA shall not affect the existing

waiver.”).

“The Maryland Court of Appeals has emphasized that ‘the tort is to be used sparingly and only for

opprobrious behavior that includes truly outrageous conduct.’” Id. at 507.

Relying on the above language cabining the scope of IIED claims, Defendants argue that

the Complaint fails to allege any specific emotional distress arising out of Richetta’s statements.

ECF 18-1 at 26-27. These concerns are meritorious. Count XIII makes only conclusory mention

of emotional distress, alleging that “[T.G.] has and will continue to suffer extreme emotional

distress” and referencing “severe, painful and permanent injuries to mind and body” that caused

him to seek medical care. ECF 8 ¶¶ 167-68. Such broad and unspecific reference to distress—to

say nothing of the fact that the Complaint fails to specify which injuries were caused by Richetta’s

statements as opposed to Korr’s physical handling of T.G.—is precisely the sort of “[t]hreadbare

recital[] of the elements of a cause of action” that falls short of the notice pleading standard. Iqbal,

556 U.S. at 678. This is particularly true given the emphatically narrow scope of IIED articulated

by Maryland courts. Thus, Count XIII will be dismissed without prejudice.

M. Count XIV – Section 504 Disability Discrimination

Count XIV, the Complaint’s final claim, alleges that BCP and BCBSC discriminated

against T.G., an individual with a disability, in violation of Section 504 of the Rehabilitation Act

of 1973. Specifically, Plaintiff alleges the violation occurred when a BCP teacher asked Korr to

escort T.G. from the classroom due to manifestations of T.G.’s disability, leading to Korr’s alleged

attacking T.G. due to his poor behavior resulting from his disability and concluding with Richetta’s

cover-up of the allegedly discriminatory attack. ECF 8 ¶¶ 169-176. BCBSC moves to dismiss

based on Plaintiff’s alleged failure to exhaust administrative remedies as required by 20 U.S.C. §

1415(l). ECF 18-1 at 27-29. “§ 1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief

for the denial of a free appropriate public education,” Fry v. Napoleon Community Schools, 137

S.Ct. 743, 754 (2017), and Plaintiff responds that Count XIV does not pertain to denial of a “free

appropriate public education” (“FAPE”) but rather pertains to disability-based discrimination,

ECF 25 at 23-24.

This Court concludes that Count XIV is ultimately a claim for disability-based

discrimination as opposed to a denial of a FAPE, and thus there was no administrative exhaustion

requirement. Fry provides clear guidance to this end, suggesting that a claim sounds in something

other FAPE if 1) plaintiff could have brought the same claim if the alleged conduct occurred at

some public facility other than a school and 2) plaintiff could have pressed the same claim if T.G.

were an adult as opposed to a schoolchild. 137 S.Ct at 756. Both elements of the Fry analysis are

satisfied here. Plaintiff’s claim could have been brought if Korr’s alleged manhandling due to

Plaintiff’s behavioral difficulties had occurred somewhere other than a school, as it could have

been brought if Korr had manhandled an adult instead of a child. Nothing in Count XIV

necessarily implicates Plaintiff’s access to education specifically. Thus, there is no administrative

exhaustion requirement, per Fry.

IV. CONCLUSION

For the reasons set forth above, Korr’s Motion to Dismiss, ECF 16, will be GRANTED as

to Count III and DENIED as to the remaining Counts. The BCBSC Defendants’ Motion to

Dismiss, ECF 18-1, will be GRANTED as to Counts IV, V, VI, XII, and XIII and DENIED as to

the remaining Counts. The dismissed claims are dismissed without prejudice. A separate

implementing Order follows.

Dated: January 20, 2021 /s/

Stephanie A. Gallagher

United States District Judge