Melissa and Daniel Willey v. Board of Education of St. Mary's County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

MELISSA AND DANIEL WILLEY, et al., *

Plaintiffs, *

v. * Case No.: PWG-20-161

BOARD OF EDUCATION OF *

ST. MARY’S COUNTY, et al.,

*

Defendants.

*

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

MEMORANDUM OPINION AND ORDER

On March 20, 2018, Austin Rollins, a student at Great Mills High School (“GMHS”) in St.

Mary’s County, Maryland, shot and killed a fellow student, Jaelynn Willey. Her parents, Melissa

and Daniel Willey, individually, and as Personal Representative of the Estate of Jaelynn Willey

(“the Estate”), bring multiple claims against Defendants: Board of Education of St. Mary’s County

(“Board”); Board of County Commissioners of St. Mary’s County (“County”); Board individual

members Karin Bailey, Cathy Allen, Mary Washington, James Davis, Rita Weaver (“Individual

Board Members”); Jane/John Does 1-10 (administrators, teachers, counselors, and/or school

employees); James Scott Smith, Ph.D., Superintendent of St. Mary’s County Public Schools; F.

Michael Wyant, Chief of Safety and Security of St. Mary’s County Public Schools (“Central Office

Defendants”); Jake Heibel, Ph.D., GMHS Principal; Troy Kroll, GMHS teacher and girls’ swim

coach (“GMHS Defendants”); and Blaine Gaskill, Deputy Sheriff and School Resource Officer.1

Am. Compl., ECF No. 15. Plaintiffs allege that Defendants failed to take meaningful action to

protect Jaelynn and prevent her murder, and they bring claims of federal civil rights violations

1 The individuals were generally sued in both their individual and official capacities.

under 42 U.S.C. § 1983; violations of Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681(a); state-law tort claims of Negligence, Premises Liability, Wrongful Death, Survival

Action, and Respondeat Superior; and violations of Maryland Declaration of Rights Articles 24

and 26. Id.

Defendants move to dismiss the Plaintiffs’ claims: (1) Motion to Dismiss or, in the

Alternative, for Summary Judgment by the Board of Education of St. Mary’s County (“Mot. I”),

ECF No. 22; (2) Motion to Dismiss by Karin Bailey, Cathy Allen, Mary Washington, James Davis,

and Rita Weaver (“Individual Board Members”), and J. Scott Smith and F. Michael Wyant (Central

Office Defendants”) (“Mot. II”), ECF No. 23; (3) Motion to Dismiss by Jake Heibel and Troy

Kroll (“GMHS Defendants”) (“Mot. III”), ECF No. 24; and (4) a letter request by Board of County

Commissioners of St. Mary’s County and Blaine Gaskill to join their Co-Defendants’ motions,

ECF No. 32. I have reviewed the filings2 and find a hearing unnecessary. See Loc. R. 105.6 (D.

Md. 2021). For the reasons stated below, the Board’s motion to dismiss is GRANTED IN PART

and DENIED IN PART; the Individual Board Members and Central Office Defendants’ motion to

dismiss is GRANTED, and the GMHS Defendants’ motion to dismiss is GRANTED. Count IV

(the Title IX claim) may proceed against the Board, and Counts VI, VII, VIII, and IX (state-law

tort claims) may proceed against the Board and the County.

2 Mot. I, ECF No. 22; Resp. I, ECF No. 25; Reply I, ECF No. 29; Mot. II, ECF No. 23; Resp.

II, ECF No. 26; Reply II, ECF No. 31; Mot. III, ECF No. 24, Resp. III, ECF No. 27, Reply III,

ECF No. 30; the accompanying memorandums; exhibits as discussed below; and Amended

Complaint, ECF No. 15.

BACKGROUND3

Jaelynn Willey and Austin Rollins both attended Great Mills High School in St. Mary’s

County, Maryland. Am. Compl. 4-5. Beginning in 2017, they entered a romantic relationship. Id.

at ¶ 66. But Rollins began to physically and verbally pressure Jaelynn to engage in sexual activity,

which she did not want; he became possessive, controlling, and manipulative, and the relationship

quickly soured. Id. at ¶¶ 67-68. At school, after school, and during school events, Rollins would

text Jaelynn and contact her over social media even though she repeatedly requested that he stop

contacting her. Id. He also texted and harassed her friends at school. Id. at ¶ 70.

Rollins’ behavior escalated. He grabbed, pushed, and yelled at Jaelynn outside her

classrooms, and stalked her on school property by following her to her vehicle after school, and

by showing up after each class, and following her around the hallways. Id. at ¶¶ 71-76. He

frequently harmed her physically, causing pain by grabbing and squeezing her arms and wrists.

Id. at ¶¶ 71, 77. Rollins also smashed his hands against the walls to make his hands bleed. Id. And

he texted Jaelynn’s friends indicating that he was planning on killing himself. Id.

Jaelynn’s parents advised her swim coach and teacher, Mr. Kroll, whom they trusted, that

they were concerned about their daughter’s well-being because of Rollins’ behavior. Id. at ¶ 80.

In the mornings at school, Jaelynn and her friends would meet in Mr. Kroll’s classroom, frequently

discussing Rollins and his behavior. Id. at ¶ 81. Plaintiffs allege that they believe Mr. Kroll heard

Jaelynn’s conversations and was aware not only that Rollins was sexually harassing Jaelynn but

also that Rollins was becoming increasingly violent. Id. at ¶¶ 81-82. Plaintiffs believe that Mr.

Kroll followed the school’s reporting policies and requirements and reported these concerns to his

3 For purposes of considering a motion to dismiss, this Court accepts the facts that Plaintiffs

alleged in their Complaint as true. See Aziz v. Alcoac, 658 F.3d 388, 390 (4th Cir. 2011).

superiors. Id. at ¶ 83. However, no one reached out to Jaelynn to see if she needed help or advise

her, and no one confronted Rollins or took any steps to stop the stalking, harassment, abuse, and

violent behaviors. Id. at ¶¶ 86-90, 111-12. Plaintiffs allege that on several occasions, Rollins

physically attacked a fellow student and threatened multiple students. Id. at ¶ 99.

On February 20, 2018, a month before Jaelynn was killed, GMHS had a threat of a shooter

at the school. Id. at ¶ 95. Additional security was added for that day only. Id. at ¶ 96. A day

before Jaelynn was killed, the school again received a threat of mass violence. Id. at ¶ 97. Plaintiffs

allege that no additional security was added as a result of the threat, despite the school having

available to it metal detecting wands as well as safety vestibules and surveillance cameras. Id. at

¶¶ 98, 100-103. On March 20, 2018, Blaine Gaskill, Deputy Sheriff and School Resource Officer,

was present at the school but did not screen the students entering the school, even though there

had been a threat the day before. Id. at ¶¶ 120-21. Incoming students were not checked for

weapons, and no precautionary actions were taken regarding Rollins. Id.

On March 20, 2018, “at the beginning of the school day, Rollins entered Great Mills High

School with a 9mm handgun, proceeded all the way to hallway F, and shot Jaelynn in the head

outside classroom F06.” Id. at ¶ 122. The bullet exited Jaelynn and hit another student in the leg.

Id. at ¶ 123. Rollins then continued to walk around the school with the gun. Id. at ¶ 124. Rollins

was ultimately confronted by Deputy Gaskill in Hallway D near rooms D01 and D02. Id.

Plaintiffs assert that “[t]here is a contract and a commitment that when students are

mandated to attend public schools, that the school will in turn appropriately and adequately care

for its most precious resources – this nation’s children.” Id. at 4. One of those children, Jaelynn,

was harassed and murdered at her school by a fellow student. Plaintiffs allege that Defendants

were aware of the risks, took no actions to prevent this loss of life, and actively increased the

danger to her.

Plaintiffs assert eleven causes of action against Defendants, as follows:

• Count I – Federal Civil Rights Violations 42 U.S.C. § 1983 (Special Relationship)

– against Individual Board Members, GMHS Defendants, and John/Jane Does in

their individual capacities; and against Deputy Gaskill in his individual capacity

and in his official capacity with the County.

• Count II – Federal Civil Rights Violations 42 U.S.C. § 1983 (State-Created Danger)

– against Individual Board Members, GMHS Defendants, and John/Jane Does in

their individual capacities; and against Deputy Gaskill in his individual capacity

and in his official capacity with the County.

• Count III – Federal Civil Rights Violations 42 U.S.C. § 1983 (Arbitrary or

Conscience-Shocking Conduct) – against Individual Board Members, GMHS

Defendants, and John/Jane Does in their individual capacities; and against Deputy

Gaskill in his individual capacity and in his official capacity with the County.

• Count IV – Deliberate Indifference and/or Actual Knowledge Under Title IX – by

the Estate against Board of Education; Individual Board Members, GMHS

Defendants, and John/Jane Does in their official capacities; and Deputy Gaskill in

his official capacity with the Board.

• Count V – Failure to Train – Violation of Equal Protection Under Fourteenth

Amendment – 42 U.S.C. § 1983 – against the County; Deputy Gaskill in his official

capacity with the County; and John/Jane Does in their official capacities with the

County.

• Count VI – Negligence – against all Defendants (Individual Board Members and

Central Office Defendants in individual capacities).

• Count VII – Premises Liability – against all Defendants (Individual Board Members

and Central Office Defendants in individual capacities).

• Count VIII – Wrongful Death – by Daniel Willey and Melissa Willey against all

Defendants (Individual Board Members and Central Office Defendants in

individual capacities).

• Count IX – Survival Action – by the Estate against all Defendants (Individual Board

Members and Central Office Defendants in individual capacities).

• Count X – Respondeat Superior – against Board of Education and County.

• Count XI – Violation of Maryland Declaration of Rights Articles 24 and 26 –

against all Defendants (Individual Board Members and Central Office Defendants

in individual capacities).

Am. Compl.; see also Mot. Mem. II, ECF No. 23-1, at 3 n.4.4

Defendants, by their motions, seek to dismiss the complaint in its entirety with prejudice,

for failure to state any claims upon which relief can be granted, or in the alternative, for summary

judgment in Defendants’ favor.

STANDARD OF REVIEW

I. Dismissal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it

fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, Civil Action No.

RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test

the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a

claim, or the applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d

480, 483 (4th Cir. 2006)).5 To that end, the Court bears in mind the requirements of Rule 8, Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when

considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain

“a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ.

4 Not all Counts contain clear statements, so this summary is based not only on the Amended

Complaint, but statements made in the motions as well as my interpretation based on the

underlying law.

5 Generally, a Rule 12(b)(6) motion to dismiss does not “permit an analysis of potential

defenses a defendant may have to the asserted claims.” J&J Sports Prods., Inc. v. Pro Street Shop,

LLC, t/a Pro St. Cafe, No. DKC 18-1000, 2019 WL 3290161, at *2 (D. Md. July 22, 2019).

Nonetheless, dismissal may be appropriate when a meritorious affirmative defense is clear from

the face of the complaint. Brooks v. City of Winston–Salem, 85 F.3d 178, 181 (4th Cir. 1996)

(citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 250 (4th Cir. 1993)).

P. 8(a)(2), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at

678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 663.

II. Rule 12(d) Conversion

When reviewing a motion to dismiss, “[t]he court may consider documents attached to the

complaint, as well as documents attached to the motion to dismiss, if they are integral to the

complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB–12–

1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see also CACI Int’l v. St. Paul Fire &

Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009). However, if the Court considers matters

outside the pleadings, the Court must treat the motion as a motion for summary judgment under

Rule 56. Fed. R. Civ. P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Grp., Inc., 916 F.

Supp. 2d 620, 622-23 (D. Md. 2013).

Under Fourth Circuit law, proper conversion under Rule 12(d) requires two things: (1) that

all parties “be given some indication by the court that it is treating the 12(b)(6) motion as a motion

for summary judgment;” and (2) that all parties “be afforded a reasonable opportunity for

discovery.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). Notably, “the Federal Rules do not

prescribe that any particular notice be given before a Rule 12 motion is converted to a Rule 56

motion.” Ridgell v. Astrue, DKC–10–3280, 2012 WL 707008, at *7 (D. Md. Mar.2, 2012). Thus,

this requirement “can be satisfied when a party is ‘aware that material outside the pleadings is

before the court.’” Walker v. Univ. of Md. Med. Sys. Corp., No. CCB-12-3151, 2013 WL 2370442,

at *3 (D. Md. May 30, 2013) (quoting Gay, 761 F.2d at 177). Indeed, while the Court “clearly has

an obligation to notify parties regarding any court-instituted changes in the pending proceedings,

[it] does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports

Auth., 149 F.3d 253, 261 (4th Cir. 1998). Here, the title of the motion itself, “Motion to Dismiss

or, in the Alternative, Motion for Summary Judgment,” makes it obvious that the Court might

construe it as seeking summary judgment, and thereby provides sufficient notice to Plaintiff. See

Ridgell, 2012 WL 707008, at *7; see Laughlin, 149 F.2d at 260-61.

Generally, however, summary judgment is inappropriate “where the parties have not had

an opportunity for reasonable discovery.” E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc.,

637 F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 F. App’x 632, 639-40 (4th Cir.

2016) (per curiam); McCray v. Md. Dep’t of Transp., 741 F.3d 480, 483 (4th Cir. 2015). Certainly,

“the party opposing summary judgment ‘cannot complain that summary judgment was granted

without discovery unless that party has made an attempt to oppose the motion on the grounds that

more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d

214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th

Cir. 1996)). To that end, Federal Rule of Civil Procedure 56(d) unambiguously provides that:

If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the

court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take

discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).

Here, Plaintiffs filed a declaration pursuant to Federal Rule of Civil Procedure 56(d) and

identified discovery needed to fully respond to a summary judgment motion. Pls.’ Resp. I Ex. B,

Decl., ECF No. 25-2; Pls.’ Resp. III, Ex. B, Decl., ECF No. 27-3. There has not yet been an

opportunity for discovery in this case, and Plaintiffs declare that “Defendants’ Counsel specifically

instructed Plaintiffs’ counsel to refrain from communicating with ‘the Board [of Education], its

members, administrators, or any other school system employees regarding your clients’ claims,

the unfortunate occurrence of March 20, 2018, or any other related matters.’” Id. ¶ 3 (citing Ex. E:

Correspondence Feb. 25, 2019, ECF Nos. 25-5, 27-4). Plaintiffs also declare that they require

statements from individuals represented by Defendants’ counsel, id. ¶ 5, and much of the

documentation required is in the exclusive control of Defendants, id. ¶ 6. Although Plaintiffs have

copies of criminal investigation reports, many of the individual’s names and contact information

is redacted, and subpoenas will be required. Id. ¶¶12, 15-16. Plaintiffs also believe Defendants

possess digital evidence that they cannot seek until discovery has commenced. Id. ¶¶ 17-18 20. A

list of topics was identified on which Plaintiffs require information. Id. ¶ 21.

Defendants argue that Mrs. Willey has personal knowledge of specific facts that could be

pleaded to state a Title IX claim, but she did not provide an affidavit in response to Mr. Kroll’s

affidavit. Reply I, ECF No. 29, at 3, 6-7, 9. Defendants also note that Plaintiffs have access to

student files, have demonstrated the ability to obtain police investigation reports and conduct

interviews with Jaelynn’s friends, and they have access to Jaelynn’s social media posts and text

messages. Id. at 10-11. And Defendants argue that Plaintiffs’ claims of cameras and digital

evidence is speculative. Id. at 11-12. Defendants assert that the evidence Plaintiffs seek would

not create a genuine dispute of material fact sufficient to defeat summary judgment. Id.

However, a formal request for discovery is “broadly favored and should be liberally

granted because the rule is designed to safeguard non-moving parties from summary judgment

motions that they cannot adequately oppose.” Greater Balt. Center for Pregnancy Concerns, Inc.

v. Mayor and City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Raby v. Livingston,

600 F.3d 552, 561 (5th Cir. 2010)). Therefore, I shall not convert any of the motions to a summary

judgment motion, and I will not consider any documents or exhibits that are not explicitly

incorporated into the complaint by reference or relied on in the complaint. See Goines v. Valley

Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016); see also Sposato, 2013 WL 1308582, at *2

(“The court may consider documents attached to the complaint, as well as documents attached to

the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.”);

CACI Int’l, 566 F.3d at 154; Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an

exhibit to a pleading is a part of the pleading for all purposes.”).6

The Amended Complaint has no attached exhibits, and the only exhibit attached to a motion

is Mr. Kroll’s affidavit, which I will not consider. The Amended Complaint references the GMHS

2016-17 Handbook, which Plaintiffs attached to a response in opposition, but it is not integral to

their complaint, and I did not find it necessary to consider it. Am. Compl. ¶¶ 53, 104, 152; Resp.

I, Ex. C, ECF No. 25-3. The Amended Complaint did not contain references to, nor did it rely on,

the St. Mary’s County Sheriff’s Office Incident Reports that Plaintiffs attached to a response.

Resp. I, Ex. A, ECF No. 25-1. Therefore, although I may consider the Handbook but not the

Incident Reports, I have not considered either exhibit.

6 Moreover, where the allegations in the complaint conflict with an attached written

instrument, “the exhibit prevails.” Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462,

1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970,

at *2-3 (D. Md. Apr. 12, 2011).

ANALYSIS

I. Title IX Claim (Count IV)

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, provides:

No person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or activity

receiving Federal financial assistance . . . [stating exceptions].

20 U.S.C. § 1681(a). The Supreme Court has held that for purposes of Title IX, unlawful sex

discrimination includes sexual harassment and sexual assault. See Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 281-82 (1998); Franklin v. Gwinnett County Public Schools, 503 U.S.

60, 75 (1992). And relevant to this matter, “student-on-student sexual harassment, if sufficiently

severe, can . . . rise to the level of discrimination actionable under” Title IX. Davis v. Monroe Cty.

Bd. of Educ., 526 U.S. 629, 650 (1999).

To state a Title IX claim based on student-on-student sexual harassment, a plaintiff must

plausibly allege that:

(1) they were a student at an educational institution receiving federal

funds;

(2) they suffered sexual harassment that was so severe, pervasive,

and objectively offensive that it deprived them of equal access to the

educational opportunities or benefits provided by their school;

(3) the school, through an official who has authority to address the

alleged harassment and to institute corrective measures, had actual

notice or knowledge of the alleged harassment; and

(4) the school acted with deliberate indifference to the alleged

harassment.

Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257, 263-64 (4th Cir. 2021) (citations omitted). All

Defendants contend that Plaintiffs have failed to state a claim in Count IV under Title IX.7 I shall

address each element in turn.

A. Receipt of Federal Funds

The Board of Education has not disputed that it is an educational institution receiving

federal funds or that Jaelynn was a student. But the individual Defendants contend that even if

this claim arguably survives against the Board of Education as a recipient of federal funds, it is

improperly brought against the Individual Board Members and the Central Office Defendants who

are not recipients of federal funds, and they cannot be held in the case for duplicative recovery

against them even in their official capacities. Mot. II Mem., ECF No. 23-1, at 2 n.2; Mot. III

Mem., ECF No. 24-1, at 6-7; Reply III, ECF No. 30, at 5-6.

Title IX claims can be brought only against institutions and programs that are the recipients

of federal funds, “but it has consistently been interpreted as not authorizing suit against school

officials, teachers, and other individuals.” Fitzgerald v. Barnstable School Committee, 555 U.S.

246, 257 (2009); see also Feminist Majority Foundation v. Hurley, 911 F.3d 674, 700 (4th Cir.

2018) (“Title IX allows for lawsuits against only educational institutions and programs.”).

Plaintiffs argue that “Title IX claims are actionable against individual defendants in their official

capacities,” Resp. III Mem., ECF No. 27-1, at 5, but even if the individuals were subject to suit in

their official capacities, such suits “generally represent only another way of pleading an action

against an entity of which an officer is an agent,” Kentucky v. Graham, 473 U.S. 159, 165 (1985)

7 Defendants also note that Jaelynn’s parents do not have standing to assert a personal claim

under Title IX. Mot. I Mem., ECF No. 22-1, at 4 n. 1. The Title IX claim can be asserted only by

the Estate. See Dunlap v. Monroe Cty. Bd. of Educ., CIVIL ACTION NO. 1:16-11535, 2017 WL

4684181, at *5 (S.D.W. Va. Oct. 18, 2017) (citing cases).

(quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)). “[T]he

real party in interest is the entity.” Id. at 166. Since Plaintiffs have sued the entity, the claims

against individuals in their official capacities are redundant. Therefore, the Title IX claim against

all the individual Defendants shall be dismissed with prejudice.

B. Severe, Pervasive, and Objectively Offensive Sexual Harassment

The Board argued that Plaintiffs failed to plead facts that Rollins’ harassment was sufficient

to create a hostile or abusive educational environment. Mot. I Mem., ECF No. 22-1, at 11 n.7

(citing Jennings v. Univ. of N. Carolina, 482 F.3d 686, 699 (4th Cir. 2007)). In Jennings, the

Fourth Circuit reviewed the evidence needed to show sexual harassment at the summary judgment

stage, stating that

a sexual harassment victim “can be said” to have been deprived of

access to educational opportunities or benefits in several

circumstances, including when the harassment (1) results in the

physical exclusion of the victim from an educational program or

activity; (2) “so undermines and detracts from the victim[’s]

educational experience” as to “effectively den[y her] equal access to

an institution’s resources and opportunities”; or (3) has “a concrete,

negative effect on [the victim’s] ability” to participate in an

educational program or activity.

482 F.3d at 699 (citing Davis, 526 U.S. at 650-51, 654).

Here, Plaintiffs allege that Rollins sexually harassed Jaelynn, which created a “hostile and

abusive education environment,” and ultimately, Rollins killed her, which unarguably denied her

equal access to the school’s resources and opportunities. Resp. I Mem., ECF No. 25-6, at 9 n.7

(citing Davis, 526 U.S. 651, 653-54). Under the facts as pleaded, there is no credible basis for

disputing that the Plaintiffs’ allegations demonstrate a concrete, negative, and substantial effect on

the victim’s ability to participate in a program or activity. See, e.g., Am. Compl. ¶¶ 67-68, 70-78.

Therefore, Plaintiffs have sufficiently alleged the sexual harassment element of a Title IX claim.

C. Actual Notice or Knowledge

The Board argues that no “appropriate person” had actual notice or knowledge of the

alleged harassment. Mot. I Mem. at 4-11. More specifically, the Board asserts that the most

specific factual allegation of notice is that Plaintiffs informed Mr. Kroll, Jaelynn’s teacher and

swim coach, but it argues that a classroom teacher is not an appropriate person under Title IX. Id.

at 8-9; Reply I at 4-5. The Board also asserts that Mr. Kroll refutes the allegation that he was

notified. Mot. I Mem. at 10-11; Reply I at 2-3.

The Fourth Circuit recently addressed and clarified “[w]hat establishes a school’s actual

notice in Title IX cases.” Fairfax, 1 F.4th at 264.8 The Court held “that when a school official

with authority to address complaints of sexual harassment and to institute corrective measures

receives a report that can objectively be construed as alleging sexual harassment, that receipt

establishes actual notice of such harassment for Title IX purposes.” Id. at 265. Constructive notice

is not sufficient. Id.

“[A] school has actual notice or knowledge when it is informed or notified of the alleged

harassment.” Id. at 266 (citing Gebser, 524 U.S. at 290). This may include being “‘alerted’ to the

‘possibility’ of sexual harassment occurring,” id. (citing Gebser, 524 U.S. at 291), “complaints,

allegations, or reports” of harassment, id. at 267 (citing Davis, 526 at 649, 653-54), or by

witnessing it or receiving a report of it, id. (citing Doe v Galster, 768 F.3d 611, 614 (7th Cir.

2014)), but it does not require receipt of “a clearly credible report of sexual abuse from the

plaintiff-student,” id. The Court further stated that “common sense and public policy

considerations further counsel us to hold that a school’s receipt of a report or complaint alleging

8 The Board submitted a letter of supplemental authority informing the Court about this case

and the impact to its argument regarding actual notice. ECF No. 35.

sexual harassment is sufficient to satisfy the actual-notice requirement.” Id. Actual notice does

not mean that a claim has been accepted as credible or substantiated, but rather, it is an objective

inquiry that asks whether an appropriate official in fact received a report or complaint and whether

a reasonable official would determine that the report alleges misconduct. Id. at 268.

An appropriate official is described as “a school official with authority to address

complaints of sexual harassment and to institute corrective measures.” Id. at 265; see also Gebser,

524 U.S. at 290 (“An ‘appropriate person’ . . . is, at a minimum, an official of the recipient entity

with authority to take corrective action to end the discrimination.”). Certainly, principals and

assistant principals are considered appropriate officials. See Fairfax, 1 F.4th at 270-72. In the

context of peer-on-peer sexual harassment, informing a classroom teacher or physical education

teacher also may be considered adequate notice. See Davis, 526 U.S. at 634, 646-47 (observing

the ability to control and influence behavior that exists in the classroom and commenting on notice

to district employees).9

Here, Plaintiffs allege that Jaelynn’s parents warned the school by directly advising Mr.

Kroll, Jaelynn’s teacher and swim coach, that they were concerned about Jaelynn because of

Rollins’ behavior both in and out of school, and they also expressed concerned about her safety.

Am. Compl. ¶¶ 80, 112. Plaintiffs also allege that Mr. Kroll overheard conversations between

Jaelynn and her friends in his classroom prior to the start of school that related to Rollins’

9 The Board cites Md. Code Ann., Educ. § 7-305(a) to assert that a teacher lacks the power

to impose formal student discipline. Mot. I Mem. at 8. However, particular “remedies,” such as

expulsion, are not required on notification of harassment. Davis, 526 U.S. at 648-49. Rather, a

response needs to be “reasonable” under the circumstances, and certainly the cited Maryland

statute does not divest teachers of the authority to report harassment to higher-ups in the school,

or to request that an investigation be initiated. See id. at 649-50; Fairfax, 1 F.4th at 268 (noting

that actual notice is what triggers a duty to investigate).

harassment and violent behavior, such that they believe Mr. Kroll knew that Rollins was violent

and sexually harassing Jaelynn. Id. at ¶¶ 81-82, 202. That Mr. Kroll denies that he was advised

or that he overheard or observed any harassment is not relevant at this stage, particularly as I am

declining to accept evidence outside the Amended Complaint or convert the motion to dismiss into

a motion for summary judgment; Plaintiffs’ allegations are accepted as true for purposes of

considering a motion to dismiss.

Plaintiffs further allege that Mr. Kroll passed on this information to his superiors, including

the Deputy Sheriff and School Resource Officer as well as the GMHS Superintendent, pursuant to

school reporting policy, and they, in turn, passed it on to their superiors. Id. at ¶¶ 59-60, 83.

Plaintiffs also allege that Defendants would have specifically observed Rollins’ harassment,

stalking, and increasing violence. Id. at ¶¶ 74-79, 89, 196-201. Jaelynn’s tragic death renders her

unable to verify or provide further factual details, so Plaintiffs are left with little recourse except

to plead their allegations “on information and belief,” which they are permitted to do if they are

likely to obtain evidentiary support for them upon being afforded an opportunity for further

investigation or discovery. See, e.g., Fed. R. Civ. P. 11(b)(3). I am satisfied that the facts alleged

by Plaintiffs—a report and witnessing the behavior—are sufficient to support Plaintiffs’ claim that

at least one “appropriate” school official had actual notice that Jaelynn was sexually harassed by

Rollins, a fellow student, and that they should be afforded the opportunity for further investigation

and discovery to buttress these allegations.

D. Deliberate Indifference

The Board also contends that Plaintiffs have failed to allege that it acted with deliberate

indifference even assuming it had actual notice. Mot. I Mem. at 4. But this is an empty contention

because the Board does not claim that it took any action, since it relies on not having actual notice

of any misconduct.

“Under Title IX, a school acts with deliberate indifference where its response to the alleged

harassment or the lack of any such response is clearly unreasonable in light of the known

circumstances.’” Fairfax, 1 F.4th at 271 (quoting Davis, 526 U.S. at 648 (internal quotation marks

omitted and cleaned up)). It is a high standard, requiring more than a showing of negligence. Id.

However, a “half-hearted investigation or remedial action will [not] suffice to shield a school from

liability.” Id. (quoting S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 77 (4th Cir.

2016)). Further, a school can be liable not only where its deliberate indifference effectively causes

the harassment, but also where a school’s deliberate indifference made a plaintiff more vulnerable

to future harassment. Id. (citations omitted).

Here, accepting that there are sufficient allegations of actual notice to survive dismissal,

Plaintiffs allege that the school did nothing at all in response: it did not investigate; it did not

counsel; it did not confront; it did not intervene; it did not take the report seriously; it did not

discipline; it did not contact Rollins’ parents; it did not take meaningful action; it did not take any

remedial action; it did not warn; it did not formulate a plan; it did not train; it did not take

precautions; it did not implement protective measures; it did not follow its own policies and

procedures; it did not take a single step to ensure Jaelynn’s safety and wellbeing. Am. Compl. ¶¶

86, 93, 106-107, 109, 111-20; 155, 225-26, 228-29, 231, 266-69. Plaintiffs also alleged that the

school’s inaction increased the danger and made Jaelynn more vulnerable to harassment. Id. at ¶¶

174-76, 229. These allegations are abundantly sufficient to plead that the school acted with

deliberate indifference.

In sum, assuming Plaintiffs’ allegations are true, they have plausibly stated a Title IX claim

against the Board, but as stated above, the Title IX claim against all the individual Defendants

shall be dismissed with prejudice.

II. Section 1983 Claims (Counts I, II, III, V)

Section 1983 provides a remedy for individuals who have been deprived of their

constitutional rights under color of state law. See 42 U.S.C. § 1983; City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 707 (1999). The statute provides:

Every person who, under color of any statute, ordinance,

regulation, custom or usage of any State or Territory or the District

of Columbia, subjects or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege (1) that a right secured

by the Constitution or laws of the United States was violated, and (2) that the alleged violation was

committed by a ‘person acting under the color of state law.’” Bost v. Wexford Health Sources, Inc.,

No. 15-cv-3278-ELH, 2018 WL 3539819, at *19 (D. Md. July 23, 2018) (quoting West v. Atkins,

487 U.S. 42, 48 (1988)). “Section 1983 also requires a showing of personal fault based upon a

defendant’s own conduct.” Id. at *20 (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).

Plaintiffs have asserted § 1983 claims (in Counts I, II, and III) against the Individual Board

Members, GMHS Defendants, Central Office Defendants, and John/Jane Does, all in their

individual capacities, and against Deputy Gaskill in his individual capacity and in his official

capacity with the County.10 These Defendants argue, generally, that there is a lack of specific

10 GMHS Defendants noted in their motion that the § 1983 claims were necessarily brought

against them in their individual capacities because when acting in their official capacities, they are

not “persons” subject to suit for damages under § 1983. Mot. III Mem. at 4 n.1. In their Response

allegations against them as individuals sufficient to subject them to claims under § 1983. Mot. II

Mem. at 3-5; Mot. III Mem. at 3-4. The Individual Board Members also argue that they cannot be

sued under § 1983 because they lacked authority to act individually. Mot. II Mem. at 6.

Judge Chasanow addressed this issue in Smith-Hosch v. Bramble:

Surely no individual board member or board employee may

be held liable for the actions of a board as a whole. If, however, a

plaintiff can make 1) specific allegations regarding the individual

conduct of a member of board, and 2) that individual action is found

to have deprived the plaintiff of a federal right, then the individual

member of that board may be held liable for his or her actions under

§ 1983.

Civil Action No. DKC 18-3659, 2019 WL 4060017, at *4 (D. Md. Aug. 28, 2019). This case was

cited by both Plaintiffs and Defendants as support for their position. And it certainly recognizes

the viability of a claim under § 1983 against individual board members for their own conduct while

a member of the board. Id. But, importantly, the plaintiff must do more than make conclusory

claims of individual member conduct; specific allegations of individual conduct are required. Id.

Here, none of the individual board members are mentioned in any factual allegations, and their

names appear only in the paragraphs identifying them as parties in the Amended Complaint or as

to the GMHS Defendants’ motion, Plaintiffs indicate that their suit against Mr. Kroll and Dr.

Heibel should have been in their official capacities and seek leave to amend to assert Counts I, II,

and III against the GMHS Defendants solely in their official capacity. Resp. III Mem. at 2 n.1.

Such an amendment would be futile, because “the law is clear that a State and ‘official capacity’

defendants are not susceptible to suit under 42 U.S.C. § 1983 because they are not ‘persons’ within

that statute’s meaning.” N.T. v. Baltimore City Bd. of School Comm’rs, CIV. JKB-11-356, 2012

WL 3028371, at *2 (D. Md. Jul. 24, 2012) (citing Will v. Michigan Dep’t of State Police, 491 U.S.

58, 64 (1989); Rosenfeld v. Montgomery Cty. Public Schools, 41 F. Supp. 2d 581, 585-86 (D. Md.

1999) (“Neither states nor state officials, sued in their official capacities, are considered ‘persons’

for purposes of § 1983.”). Therefore, I will not allow the requested amendment and shall review

the § 1983 claims against the GMHS Defendants in their individual capacities only. Although

Deputy Gaskill has joined in the GMHS Defendants’ motion, his arguments related to the effect

of suing him in his official capacity as a deputy sheriff and County employee have not yet been

developed. See ECF Nos. 32, 33.

listed under the claim being asserted. There are a few allegations alleging that, as a group, they

discriminated against females and voted against initiatives to protect females from sexual

harassment based on discriminatory animus, but such allegations that refer generally to the group,

without identifying specific individuals or conduct, are insufficient to state a claim against any

individual board member. See Johnson v. Dore, No. RWT–12–3394, 2013 WL 5335626, at *4

(D. Md. Sept. 20, 2013) (granting Rule 12(b)(6) motion to dismiss claims as to two defendants

because the “Complaint d[id] not include any allegations concerning [those defendants] to support

a plausible claim against them” but rather “repeatedly refer generally to ‘Defendants,’ without

identifying specific Defendants or conduct”).

Similarly, there is a lack of specific allegations against the Central Office Defendants and

GMHS Defendants. Neither Dr. Heibel nor Mr. Wyant is mentioned in any factual allegations,

and their names appear only in the paragraphs identifying them as a party in the Amended

Complaint or as listed under the claim being asserted. There are individualized allegations against

Mr. Kroll, which relate either to him being advised by Jaelynn’s parents about their concerns over

Rollins’ harassment and her safety, or that he was aware of the harassment because he overheard

conversations about, or witnessed, harassing behavior. See, e.g., Am. Compl. ¶¶ 80-83, 85, 112,

202-204, 223. Plaintiffs allege that Mr. Kroll relayed these concerns to his superiors, who included

Deputy Gaskill and Dr. Smith. Id. at ¶ 83. There are no other allegations referring to Dr. Smith.

Plaintiffs argue that they made multiple allegations about the Central Office Defendants’ violations

of the Equal Protections Clause of the Fourteenth Amendment, but each one of the referenced

allegations refers only to Defendants generally. See Resp. II Mem., ECF No. 26-1, at 7-9. As

stated above, such allegations are insufficient to state a claim against Dr. Smith, Mr. Wyant, or Dr.

Heibel.11

Plaintiffs argue, however, that they clearly allege that Mr. Kroll knew of the harassment

and acted with deliberate indifference towards Jaelynn, resulting in a violation of the Equal

Protection Clause of the Fourteenth Amendment. Resp. III Mem. at 3.12 They contend that Mr.

Kroll, as a government official, may be held liable under § 1983 based on deliberate indifference

to student-on-student sexual harassment. Id. at 2 (citing Feminist Majority Found. v. Hurley, 911

F.3d 674, 702-703 (4th Cir. 2018)).

In Feminist Majority, the Fourth Circuit described such a claim, stating that the following

elements must be pleaded:

To state an equal protection claim for deliberate indifference

to known student-on-student sexual harassment, a plaintiff must first

allege that she “was subjected to discriminatory peer harassment.”

Secondly, the plaintiff must allege that the school administrator

“responded to the discriminatory peer harassment with deliberate

indifference, i.e. in a manner clearly unreasonable in light of known

circumstances.” In other words, the plaintiff must allege that the

school administrator knew about harassment of the plaintiff “and

acquiesced in that conduct by refusing to reasonably respond to it.”

Third, the plaintiff must allege that the school administrator’s

deliberate indifference was motivated by a discriminatory intent.

911 F.3d at 702-703 (internal citations omitted). Plaintiffs do not allege that Mr. Kroll was a

school administrator, and there are no allegations against him that show Mr. Kroll was “motivated

11 Additionally, Plaintiffs “decline to proceed further” with their claim under Count I against

Dr. Smith and Mr. Wyant. Resp. II Mem. at 9.

12 Plaintiffs acknowledged that there is no separate count labeled for this claim but argue that

they have sufficiently pleaded the claim. Resp. III Mem. at 2 n.1. Also, Plaintiffs argue that they

have adequately pleaded a cause of action against Mr. Kroll based on supervisory liability, id. at

3, but Plaintiffs have not alleged that Mr. Kroll was a supervisory official, but rather, a classroom

teacher and swim coach, Am. Compl. ¶¶ 17-18. Therefore, no supervisory claim may be asserted

against Mr. Kroll. See Shaw v. Stroud, 13 F.3d 791, 798-99 (4th Cir. 1994).

by a discriminatory intent.” Id. at 703. Therefore, this claim against Mr. Kroll does not survive

and will be dismissed with prejudice.

Deputy Sheriff Gaskill has joined in his co-Defendants dismissal motions and argues that

Plaintiffs fail to sufficiently allege individual wrongdoing on his part, they fail to allege any of the

DeShaney exceptions, and he raises the affirmative defense of qualified immunity. ECF No. 32 at

1. Plaintiffs allege that Deputy Gaskill was present at the school on the date of the shooting but

did not screen the students entering the school despite the previous day’s threat of violence, and

he did not confront Rollins until “long after” the shooting. Id. at ¶¶ 120, 124-25. Plaintiffs also

allege that Deputy Gaskill was responsible for school security, keeping watch and safety over

GMHS students, and he acted under the color of state or local law. Id. at ¶¶ 243, 341. It is not

clear whether Plaintiffs seek to assert the Equal Protection claim against Deputy Gaskill, but to the

extent that they do, it will be dismissed because there are also no allegations that Deputy Gaskill

was motivated by discriminatory intent. And although there are allegations that he was responsible

for school security, there are no allegations that clearly state he held a supervisory position, so a

supervisory claim against him does not survive dismissal.

In DeShaney v Winnebago County Department of Social Services, the Supreme Court

stated that “[a]s a general matter, . . . a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process Clause.” 489 U.S. 189, 197

(1989). However, if the state has a special relationship with an individual, it has an affirmative

duty to protect the individual from harm inflicted by third parties. The Individual Board Members

and Central Office Defendants argued that there is no “special relationship” based on the Fourth

Circuit’s holding that no special relationship exists between the student and the school because the

student is not in physical custody. Mot. II Mem. at 8 (citing Stevenson ex rel. Stevenson v. Martin

Cty. Bd. of Educ., 3 F. App’x 25, 31, 2001 WL 98358, at *5 (4th Cir. 2001)). Plaintiffs concede

that they did not properly plead such a relationship vis-à-vis the Central Office Defendants. Id. at

9. It is not clear whether they intend to pursue this claim in Count I against Deputy Gaskill, but

for purposes of this dismissal motion, I do not find that Plaintiffs have properly pleaded this claim

against any of the individual Defendants. Therefore, Count I shall be dismissed with prejudice.

A second exception to the general rule occurs when the state itself creates the danger. See

DeShaney, 489 U.S. at 201. Plaintiffs assert this exception in Count II (State-Created Danger). To

create such a danger, the state must take some affirmative action that gives rise to liability. Id. at

203. Standing by and doing nothing in the face of danger or failing to provide protection from

danger does not implicate the state in the harm caused by third parties—a more active role is

required. Pinder v. Johnson, 54 F.3d 1169, 1175-76 (4th Cir. 1995); Stevenson, 2001 WL 98358,

at *6. Plaintiffs have not alleged that Deputy Gaskill took affirmative action to create the danger.

Just the opposite, they allege that he did nothing and failed to protect Jaelynn from Rollins. Thus,

I shall also dismiss this claim against Deputy Gaskill without prejudice.

In Count III, Plaintiffs allege that Defendants’ conduct was “arbitrary or conscious-

shocking.” Am. Compl. ¶ 181. Defendants argue that a necessary predicate for invoking the

“shocks the conscience test” is an intent to cause harm. Mot. II Mem. at 9 (citing cases). To rise

to a conscience-shocking level, conduct must be intended to injure or result from deliberate

decisions of a government official to deprive a person of life, liberty or property, or possibly, the

conduct must show a high level of recklessness or gross negligence. Cty. of Sacramento v. Lewis,

523 U.S. 833, 849 (1998) (citations omitted). Plaintiffs have not made such allegations against

Deputy Gaskill, and this claim shall also be dismissed without prejudice. Since I am dismissing

these claims as to Deputy Gaskill, there is no need to review his defense of qualified immunity.

Finally, in Count V, Plaintiffs assert a “Failure to Train” claim under § 1983 against the

County, Deputy Gaskill in his official capacity, and the John/Jane Does in their official capacities

with the County. The County and Deputy Gaskill joined their co-Defendants’ motions, but their

additional arguments have not yet been briefed. See ECF Nos. 32, 33. Certainly, the County, as

a unit of local government, is a “person” subject to suit under 42 U.S.C. § 1983, to the extent

allowed in Monell, 436 U.S. at 690-91. DiPino v. Davis, 729 A.2d 354, 368 (Md. 1999). But,

“[u]nder Monell, a municipality’s liability ‘arises only where the constitutionally offensive actions

of employees are taken in furtherance of some municipal ‘policy or custom.’” Walker v. Prince

George’s Cty., Md., 575 F.3d 426, 431 (4th Cir. 2009) (quoting Milligan v. City of Newport News,

743 F.2d 227, 229 (4th Cir. 1984)). Since no claims survive against the individuals, the County’s

claim will also be dismissed, without prejudice.

III. State-law Tort Claims (Counts VI to X)

Plaintiffs have asserted state-law tort claims of Negligence, Premises Liability, Wrongful

Death, Survival Action, and Respondeat Superior. Except for Respondeat Superior, which appears

to be asserted against only the Board and the County, Plaintiffs have asserted each of these claims

against the Board, the County, and all the individual Defendants in their individual capacities.

The individual Defendants, sued in their individual capacity, generally argue that Plaintiffs’

pleadings do not sufficiently allege any causes of action against them. Mot. II Mem. at 3-5; Mot.

III Mem. at 3-4. As discussed above under the § 1983 claims, Plaintiffs have failed to provide

sufficient specific factual allegations that describes what any individual defendant did or failed to

do. Further, under Maryland law, state officials are “immune from suit . . . for a tortious act or

omission that is within the scope of [their] public duties,” so long as the officials did not act with

malice or gross negligence. See Md. Code Ann., Cts. & Jud. Proc. § 5-522(b). To survive a motion

to dismiss, a plaintiff must allege facts and circumstances showing that the state official acted with

malice or gross negligence, and there are no such allegations here. See Baltimore Police Dep’t v.

Cherkes, 780 A.2d 410, 438 (Md. Ct. Spec. App. 2001). Thus, Plaintiffs have failed to make

plausible allegations about the individual Defendants that “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 570.

I shall briefly address each claim against the Board13 and County14 in turn, although the

parties’ arguments relate only to the failure of the state-law tort claims generally.

A. Negligence (Count VI)

To state a claim for negligence, Plaintiffs must allege “(a) a duty owed by the defendant[s]

to the plaintiff, (b) a breach of that duty, and (c) injury proximately resulting from that breach.”

Barclay v. Briscoe, 47 A.3d 560, 574 (Md. 2012).

The Board contends that all the Plaintiffs’ state tort claims focus on failures to provide

school security and failure to maintain good order and student discipline, and these negligence-

based claims are not viable when asserted against educators because they are essentially

educational malpractice claims that are barred under the Hunter line of cases. Mot. I Mem. at 12

(citing Hunter v. Bd. of Educ. Of Montgomery Cty., 439 A.2d 582 (Md. 1982), and Gurbani v.

Johns Hopkins Health Sys. Corp., 185 A.3d 760 (Md. Ct. Spec. App. 2018)). Plaintiffs respond

that the claims are not based in educational malpractice or educational negligence but are solidly

rooted in the tort of negligence, specifically “Defendants breached their duty to exercise reasonable

13 The Board contends that Plaintiffs’ state law tort claims cumulatively seek damages

exceeding $400,000, which exceed the applicable sovereign immunity cap. Mot. I Mem. at 20

(citing Md. Code Ann. Educ. § 4-105(d), Md. Code Ann., Cts. & Jud. Proc. § 5-518(b)). Plaintiffs

clarified that they do not seek damages exceeding the applicable sovereign immunity cap. Resp.

I Mem. at 20.

14 The County has joined in the Board’s motion. ECF No. 32. However, the County’s

additional arguments have not been briefed and are not considered.

care to protect a student from harm . . . .” Resp. I Mem. at 13-14. Plaintiffs attempt to distinguish

their claims from the claims in the Hunter line of cases by confirming that their allegations are not

questioning academic decisions. Id. at 14. Recently, in Gambrill v. Board of Education of

Dorchester County, the Maryland Court of Special Appeals held that although the Hunter line of

cases mostly consider academic decisions, the scope is broader and includes claims of negligent

school discipline and resulting physical injuries. No. 0886, Sept. Term, 2019, 2021 WL 2769810,

at *7 (Md. Ct. Spec. App. July 1, 2021) (unpublished). The Court reasoned that the same obstacles

discussed in Hunter also applied in Gambrill: “There is no standard of care against which to

measure the adequacy of disciplinary procedures; there is no obvious measure of ascertaining

damages; and the entire exercise would place unwarranted stress on the already overburdened

resources of our schools, and the judiciary.” 2021 WL 2769810, at *9. The Board submits that

these issues, identified in Hunter, are present in this case; specifically, there is no measurable

standard of care in providing school security or imposing student discipline. Reply I at 12.

Here, Plaintiffs allege that the Defendants had a duty to use reasonable measures to protect

students and supervise them on school grounds, which includes enforcing rules and regulations

necessary for protection of students to ensure a safe school campus, but also includes taking

reasonable precautions to protect students from reasonably foreseeable criminal attacks on school

premises. Am. Compl. ¶¶ 282-87. Plaintiffs allege that Defendants were aware of shooting threats,

from a month prior and a day prior to the incident, and were warned specifically about Rollins’

violent behavior, and they failed to take reasonable measures to address a foreseeable risk. Id. at

¶¶ 288-92. And more specifically, Plaintiffs allege that Defendants failed to provide adequate

security, failed to warn, failed to implement proper procedures, failed to install and use security

measures such as metal detectors and security guards in visible areas, failed to provide an overall

security plan to meet industry standards and customs for safety in schools, failed to properly train

and supervise security personnel, and failed to screen for presence of weapons. Id. at ¶ 295.

Plaintiffs have adequately pleaded that the Board owed a duty to Plaintiffs. “Although

there is generally no duty to protect others from third parties’ conduct, such a duty may arise in

the presence of a special relationship.” Doe v. Bd. of Educ. of Prince George’s Cty., 888 F. Supp.

2d 659, 669 (D. Md. 2012) (citing Rhaney v. Univ. of Md. E. Shore, 880 A.2d 357, 364 (Md.

2005)). The Court observed that “a special relationship exists between a school district and its

students,” largely because “as a general matter, school districts assume significant responsibility

for the ‘welfare and guidance’ of children within their purview.” Id. (citations omitted). Further,

Maryland courts have recognized “the doctrine that the relation of a school vis à vis a pupil is

analogous to one who stands in loco parentis, with the result that a school is under a special duty

to exercise reasonable care to protect a pupil from harm.” Eisel v. Bd. of Educ. of Montgomery

Cty., 597 A.2d 447, 451-52 (Md. 1991) (quoting Lunsford v. Bd. of Educ., 374 A.2d 1162, 1168

(Md. 1977)). Plaintiffs also have alleged that the Board breached its duty by failing to implement

reasonable security measures considering the threats and warnings about which it allegedly was

aware, including specific examples. Am. Compl. ¶¶ 295-96. Plaintiffs have alleged that because

of these failures, a student not only endured prolonged sexual harassment on school premises but

was physically assaulted there, resulting in her death. Id. at ¶ 297. In sum, Plaintiffs have stated

a facially plausible negligence claim against the Board.

As Plaintiffs note in their response to the Board’s motion, under the circumstances alleged

here, the court “is not called upon to act as an ‘overseer’ of the Defendants’ classroom

methodology, academic decisions, or discretionary student disciplinary decisions.” Resp. I Mem.

at 15 n.17. The standard of care to protect students is one of reasonableness and is not a matter of

educational policymaking to which courts have deferred to educational institutions’ decisions.15

The obstacles identified by the Hunter Court in educational negligence cases do not apply here.

Plaintiffs’ negligence claim against the Board shall survive dismissal. I have not considered any

County-specific arguments, so the negligence claim against the County also survives.

B. Premises Liability (Count VII)

“Premises liability is based on common-law principles of negligence, so a plaintiff must

establish the four elements required in any negligence action.” Macias v. Summit Mgmt., Inc., 220

A.3d 363, 375 (Md. Ct. Spec. App. 2019) (citing Troxel v. Iguana Cantina, LLC, 29 A.3d 1038,

1038 (Md. 2011)). However, the duty that is owed by the property-owner is determined by the

injured person’s legal status at the time of the incident. See id. at 375-76 (describing the general

common-law classifications of invitee, social guest, and trespasser). While the alleged status is

not clearly stated in the Amended Complaint, it refers to “students and invitees.” Am. Compl. ¶

305. “A property owner will be liable to an invitee in negligence if (1) the owner ‘controlled the

dangerous or defective condition;’ (2) the owner knew or should have known of the dangerous or

defective condition; and (3) ‘the harm suffered was a foreseeable result of that condition.’” Id.

(quoting Hansberger v. Smith, 142 A.3d 679, 691 (Md. Ct. Spec. App. 2016)). If the injured person

was a business invitee, the highest duty is owed; “one invited or permitted to enter another’s

property for purposes related to the landowner’s business.” Rybas v. Riverview Hotel Corp., 21 F.

Supp. 3d 548, 561 (D. Md. 2014) (quoting Norris v. Ross Stores, Inc., 859 A.2d 266, 273 (Md. Ct.

Spec. App. 2004)).

15 I note the Board’s reference to the Safe to Learn Act, Md. Code Ann., Educ. § 7-1501 et

seq. This Act took effect June 1, 2018, which was after the events at issue in this case.

Judge Bennett of this Court recently considered whether a premises liability claim related

to sexual harassment at a school could survive a dismissal motion. He determined that the

dangerous conditions related to serious allegations of sexual harassment in the school environment,

which, while serious and alarming, “are not suited for a premises liability claim.” Buettner-

Hartsoe v. Baltimore Lutheran High School Ass’n, Civil Action No. RDB-20-3132, Civil Action

No. RDB-20-3214, Civil Action No. RDB-20-3229, Civil Action No. RDB-20-3267, Civil Action

No. RDB-21-0691, 2021 WL 2580385, at *18 (D. Md. June 23, 2021). He reasoned that “[i]n

Maryland, the tort of premises liability relates specifically to an injury as a result of a physical

defect on property,” and the plaintiff’s allegations did not reflect a defective physical condition.

Id. (citing Rhaney v. Univ. of Md. Eastern Shore, 388 Md. 585, 600 (2005)). He further noted that

“[w]hile there is a lack of case law in this Circuit addressing this particular issue, federal courts in

other districts (applying their respective state laws) have consistently rejected premises liability

claims against schools based on allegations of bullying or sexual harassment.” Id. at n.9.

However, I note that Plaintiffs’ premises-liability allegations are not focused on the

occurrence of sexual harassment on the school property but on the lack of security policies,

measures, and procedures on the school property despite knowledge of prior threats of violence,

prior acts of violence, and the foreseeability of an act of violence. See Am. Compl. ¶¶ 311-19. In

Hansberger, the Maryland Court of Special Appeals stated that “landowners who open their land

to the public for business are required to use reasonable care in the supervision, maintenance, or

control of the premises, and may even be required to protect against the criminal acts of third

persons.” 142 A.3d at 690-91. Such property owners may be liable for an injury resulting from

their failure to protect their patrons by taking reasonable measures to control the premises from

known risks of criminal activity. Traxel, 29 A.3d at 1048-49; see also Corinaldi v. Columbia

Courtyard, Inc., 873 A.2d 483 (2005) (setting out three general theories under which a landowner

may be held liable when someone is injured by third-party criminal activities on the premises).

Plaintiffs’ allegations, accepted as true—that the school, owing a duty to its students as

invitees, failed to take reasonable precautionary measures such as screening for weapons on their

property despite a threat of violence a month earlier and a day earlier and despite specific notice

about Rollins’ threatening behavior, and the failure resulted in a student’s assault and death—are

distinct from the types of allegations that Judge Bennett found insufficient to state a premises

liability claim in the Buettner-Hartsoe case discussed above. Therefore, although it remains to be

seen whether this claim can survive summary judgment, at this stage of the proceedings, the

allegations are sufficient for this claim to survive a motion to dismiss.

C. Wrongful Death and Survival Action (Counts VIII, IX)

Maryland’s wrongful death statute created a new and independent cause of action, which

can be distinguished from a decedent’s own personal injury action during his or her lifetime,

known as a survival action. Spangler v. McQuitty, 141 A.3d 156, 168-69 (Md. 2016). “The

wrongful death statute allows the decedent’s beneficiaries or relatives to recover damages for loss

of support or other benefits that would have been provided, had the decedent not died as a result

of another’s negligence.” Id. at 168 (citing 1852 Md. Laws ch. 299; Cts. & Jud. Proc. § 3–

904(a)(1)–(b)). In a survival action, the personal representative of the victim may sue to recover,

for the estate of the victim, damages for the economic and non-economic losses suffered by the

victim prior to his or her death—the damages that the victim would have been able to recover had

he or she survived. Smith v. Borello, 804 A.2d 1151, 1154 (Md. 2002). Thus, the wrongful death

statute confers a right of action to a decedent’s beneficiaries, whereas a survival action is brought

by a decedent’s personal representatives. Spangler, 141 A.3d at 170.16

To plead a wrongful death claim under Maryland law, a plaintiff must allege: (1) the

victim’s death; (2) that the victim’s death was proximately caused by the negligence of the

defendant; (3) that the victim’s death resulted in injury to the plaintiff, who falls within the

category of beneficiaries defined by the statute; and (4) that the claim is brought within the

applicable statutory period. Osunde v. Lewis, 281 F.R.D. 250, 260 (D. Md. 2012) (citing Paul

Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland 396 (4th ed.2008)).

In a survival action,

a personal representative “stands in the place of the decedent” and

that recovery is limited to the loss actually caused to the deceased

prior to that person’s death. Thus, “[d]amages in Survival Statute

actions are limited to compensation for pain and suffering sustained,

expenses incurred, and loss of earnings, by the deceased from the

time of the infliction of the injury to the time of death.”

Johnson v. Golden, No. 939, Sept. Term, 2019, 2020 WL 3412935, at *7 (Md. Ct. Spec. App. June

22, 2020) (unpublished) (quoting Jones v. Flood, 702 A.2d 440, 442 (Md. Ct. Spec. App. 1997)).

Inasmuch as the Plaintiffs have adequately pleaded negligence claims that survive

dismissal, Plaintiffs’ wrongful death and survival action also may proceed.

D. Respondeat Superior (Count X)

“Under the doctrine of respondeat superior, an employer is jointly and severally liable for

the torts committed by an employee acting within the scope of his employment.” Jordan v. Western

Distributing Co., 286 F. Supp.2 d 545, 548 (D. Md. 2003) (quoting Baltimore Police Dep’t v.

Cherkes, 780 A.2d 410, 439 (Md. Ct. Spec. App. 2001)). Certainly, it is well established that the

16 Here, although not clearly alleged, the wrongful death action is necessarily brought by

Melissa Willey and Daniel Willey, and the survival action is brought by the Estate.

doctrine of respondeat superior does not apply in § 1983 claims. Love-Lane v. Martin, 355 F.3d

766, 782 (4th Cir. 2004) (citing Monell, 436 U.S. at 691). But the Maryland Court of Appeals has

held that, notwithstanding the inapplicability of respondeat superior liability in the § 1983 context,

such a theory of liability is available for state constitutional violations. DiPino v. Davis, 729 A.2d

354, 372 (Md. 1999) (“[L]ocal governmental entities do, indeed, have respondeat superior liability

for civil damages resulting from State Constitutional violations committed by their agents and

employees within the scope of the employment.”).

However, the respondeat superior theory of liability rests upon a plaintiff sufficiently

alleging a tort or state constitutional violation by an employee, which I found Plaintiffs here have

failed to do. Accordingly, the respondeat superior claim fails.

IV. Maryland Article 24 (Count XI) 17

Article 24 of the Maryland Declaration of Rights is construed in pari materia, or in

connection with, the Fourteenth Amendment of the United States Constitution and is generally

interpreted and analyzed the same way. Dua v. Comcast Cable of Maryland, Inc., 805 A.2d 1061,

1071 (Md. 2002). Because Plaintiffs § 1983 claims failed, the Article 24 claim also fails.

V. Leave to Amend

Under the circumstances, some of Plaintiffs’ claims are dismissed with prejudice, and some

without prejudice. Plaintiffs may file a motion seeking to request leave to amend those claims that

were not dismissed with prejudice to the extent that the claims would not be futile. Pursuant to

Rule 15, “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2). But the Court should deny leave to amend if doing so “would prejudice the opposing

17 Plaintiffs voluntarily withdrew their claim under Article 26 of the Maryland Declaration of

Rights. Resp. I Mem. at 17.

party, reward bad faith on the part of the moving party, or . . . amount to futility.” MTB Servs., Inc.

v. Tuckman–Barbee Constr. Co., No. RDB–12–2109, 2013 WL 1819944, at *3 (D. Md. Apr.30,

2013); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that whether to grant a motion

for leave to amend is within this Court’s discretion, and failure to cure deficiencies in prior

amendments is a reason to deny leave).

Plaintiffs shall be given this opportunity before scheduling any further briefing of dismissal

arguments by the County and Deputy Gaskill. Should Plaintiffs choose to file a motion for leave

to amend, it must be filed on or before September 13, 2021; the memorandum in support of their

motion shall not, unless otherwise allowed by the court, exceed 25 pages (exclusive of table of

contents and list of cases cited, or exhibits); and they shall attach as an exhibit the proposed

amended complaint and a redline complaint as required by Local Rule 103.6 (c). The Defendants

must respond by September 27, 2021, and the same page limits apply to their opposition

memorandum, unless otherwise ordered by the court; and Plaintiffs may file a reply by October

11, 2021, the memorandum in support of which shall not exceed 12 pages.

With regard to the remaining counts, Defendants shall file an Answer on or before

September 13, 2021, after which a Scheduling Order and Discovery Order will be entered.

ORDER

For the foregoing reasons,

1. The Motion to Dismiss or, in the Alternative, for Summary Judgment by

the Board of Education of St. Mary’s County (“Mot. I”), ECF No. 22, is

GRANTED IN PART and DENIED IN PART;

a. The Board’s motion to dismiss is GRANTED without prejudice

with regards to Counts X and XI, but DENIED with regards to the

remaining counts;

b. This case shall proceed against the Board on the Title IX claim

(Count IV); the Negligence claim (Count VI); the Premises

Liability claim (Count VII); and the Wrongful Death and Survival

Actions (Counts VIII and IX);

c. The Respondeat Superior claim (Count X) and the Maryland

Article 24 claim (Count XI) shall be dismissed without prejudice,

but the Maryland Article 26 claim, which was voluntarily

withdrawn, is dismissed with prejudice;

2. The Motion to Dismiss by Karin Bailey, Cathy Allen, Mary Washington,

James Davis, and Rita Weaver (“Individual Board Members”), and J.

Scott Smith and F. Michael Wyant (Central Office Defendants”) (“Mot.

II”), ECF No. 23, is GRANTED. All claims asserted against the

Individual Board Members and Central Office Defendants are

DISMISSED as follows:

a. Counts I and IV are dismissed with prejudice;

b. Counts II and III are dismissed without prejudice;

c. Counts VI through IX (state-law torts) are dismissed without

prejudice;

3. The Motion to Dismiss by Jake Heibel and Troy Kroll (“GMHS

Defendants”) (“Mot. III”), ECF No. 24, is GRANTED. All claims

asserted against the GMHS Defendants are dismissed without prejudice;

4. Counts V, X, and XI against the Board of County Commissioners of St.

Mary’s County are dismissed without prejudice; all remaining counts

asserted against the County (Counts VI, VII, VIII, and IX) may proceed;

5. Counts I and IV against Blaine Gaskill are dismissed with prejudice; all

remaining Counts asserted against Blaine Gaskill (II, III, V, VI, VII, VIII,

IX, and XI) are dismissed without prejudice;

6. If Plaintiffs choose to file a motion for leave to amend, it is due on or

before September 13, 2021;

7. The Board shall file its Answer to Counts IV, VI, VII, VIII, and IX on or

before September 13, 2021; and

8. The County shall file its Answer to Counts VI, VII, VIII, and IX on or

before September 13, 2021.

Date: August 30, 2021 ______/S/_____________________

Paul W. Grimm

United States District Judge