Doe v. Prince George's County Public Schools

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

JANE DOES 1-22, .

Plaintiffs,

v.

BOARD OF EDUCATION OF PRINCE ,

GEORGE’S COUNTY,

DR. MONICA GOLDSON,

in her official capacity,

REX BARRETT, Civil Action No, TDC-19-2580-

individually and in his official capacity,

CESAR PACHECO,

individually and in his official capacity,

TIMOTHY GOVER, .

individually and in his official capacity, and

DR. WESLEY WATTS, JR.,

individually and in his official capacity,

Defendants. .

MEMORANDUM OPINION

Plaintiffs Jane Does 1-22, former students at Charles Herbert Flowers High School

(“Flowers High School”), a public high school within the Prince George’s County Public Schools

(“PGCPS”) in Prince George’s County, Maryland, have filed this civil action alleging that they

were improperly subjected to video recording at school without their knowledge or consent while

they were dressing for Pom and Dance Team activities. Plaintiffs allege violations of Title IX of

the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 (2018), the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution, and Article 24 of the Maryland

Declaration of Rights, as well as various state law tort claims. Defendant Board of Education of

Prince George’s County (“the BOE”) has filed an Answer to the Amended Complaint. The

remaining defendants, Dr. Monica Goldson, Rex Barrett, Cesar Pacheco, Timothy Glover, and Dr.

Wesley Watts, Jr. (collectively, the “Individual Defendants”) have filed a Motion to Dismiss,

which is fully briefed. Having reviewed the submitted materials, the Court finds that no hearing

is necessary. See D. Md. Local R: 105.6. For the reasons set forth below, the Motion will be

GRANTED IN PART and DENIED IN PART.

, BACKGROUND

The allegations in the Amended Complaint, which the Court must accept as true for

purposes of the pending Motion, include the following facts.

During both the 2016-2017 and 2017-2018 school years, Plaintiffs were students at Flowers

High School and were members of the school-sanctioned and funded Flowers High School Pom

and Dance Team (“the Pom and Dance Team”). During this time period, Plaintiffs were minor

children between the ages of 14 and 17. The faculty co-sponsor of the Pom and Dance Team was

Donna Bussey, the secretary to the principal of Flowers High School. As the faculty co-sponsor,

Bussey was responsible for the well-being, whereabouts, and safety of the Pom and Dance Team

members. Typically, Bussey met with the team in the principal’s office before performances and

competitions. After these meetings, team members changed out of their school clothes and into

their dance uniforms in the principal's office before walking together to the location of the

performance. The Pom and Dance Team changed into their dance uniforms in the principal’s

office because both of the school’s locker rooms were typically in use by other athletic teams, it

was close enough to Bussey that she could provide supervision, it was large enough to

accommodate the entire team, and it was believed to be a safe and private space.

On or about July 29, 2016, Deféndant Rex Barrett, the Deputy Director of the PGCPS

Department of Security Services; Defendant Cesar Pacheco, the PGCPS Assistant Director of

Security Services; and Defendant Captain Timothy Gover, the PGCPS Deputy Director for Safety

and Security Services, authorized and ordered the installation of a hidden camera in the Flowers

High School principal’s office. The hidden camera was installed by a PGCPS employee at the

- direction of Defendant Dr. Wesley Watts, Jr., the PGCPS Chief Information and Technology

Officer. The camera was disguised as asmoke detector. There were no signs or notices placed in

or near the principal's office to notify or warn individuals that they would be subject to video

recording when they were in the principal’s office. .

. At the time of installation, the PGCPS employee labeled the hidden camera’s IP address as

“Friendly” to conceal the identity of the camera in the event that it was discovered. Am. Compl.

36, ECF No. 37. Furthermore, despite its placement in the principal’s office, the video feed for

the hidden camera was intentionally mislabeled within the school security system as “Main

Lobby.” Id. 442. Because the hidden camera was connected to the school security system, there

was live transmission of the video feed and also automatic recording of the contents of the video

- feed. The hidden camera’s video footage could be accessed by anyone using or viewing the school -

security system, both onsite and offsite. ‘

On September 7, 2016, Plaintiffs met with Bussey in the principal’s office before the

team’s first performance of the year and then remained in the office as they changed out of their

school clothes and into their dance uniforms. In doing so, Plaintiffs were recorded on the hidden

camera in “various stages of undress that exposed their underwear as well as their breasts.” Jd. f

39. Over the course of the 2016-2017 school year, Plaintiffs were recorded in various stages of

undress on at least 28 additional occasions. They were similarly recorded at various times

throughout the 2017-2018 school year. These recordings were all made without the knowledge or

.

consent of Plaintiffs or their parents or guardians. Throughout this time period, neither Bussey

nor other Flowers High School staff were made aware of the existence of the hidden camera.

On or about April 13, 2018, an assistant principal at Flowers High School discovered the ~

video feed connected to the hidden camera. The assistant principal immediately reported the

hidden camera to the head principal and the resident principal. Upon further investigation, the

principals found that almost two years of video footage from the hidden camera remained stored,

even though video footage from other cameras at the school was automatically deleted after a 30-

day period. The same day, Gover instructed a technician to go to Flowers High School, remove

the hidden camera, and collect the stored recordings. Initially, the head principal denied the

technician access to the camera until additional information could be obtained about how and why

the camera was installed.

On April 16, 2018, two principals from Flowers High School, three employees from the

PGCPS Department of Information and Technology, and three members of the Prince George’s

County Police Department (“PGCPD”) attended a meeting to discuss the hidden camera. After

the meeting, the camera and recorder were removed and turned over to the PGCPD for further

investigation, The same day, PGCPS held a press conference at which it revealed that the hidden

camera had been found. Flowers High School students and parents were then notified. Plaintiffs

have alleged that Defendants, as well as PGCPS security personnel assigned to Flowers High

School, had actual knowledge that the hidden camera in the principal’s office was recording

Plaintiffs and their fellow Pom and Dance Team members in various stages of undress, and that

the video feed was “accessible to anyone accessing or using” the school’s security system, whether

on school grounds or not, but that despite this knowledge, Defendants “failed to take any corrective

measures” to remove the hidden camera and the video feed or to protect these underaged, female

students from being recorded. Id. 955,58. Plaintiffs also contend that the only reason □□□

recording them in various stages of undress was a sexual motivation.

Upon learning about the hidden camera, Plaintiffs became “incredibly anxious” about what

recordings existed and who had seen them. /d. 70. Plaintiffs feel “objectified” and “violated on

a sexual level” because they were apparently. watched by school officials while they were

undressed. Jd. 70. Plaintiffs also assert that they have suffered emotional and psychological .

trauma, including “great mental anguish and distress,” from the potential that there are ‘copies of

the recordings that could be released to the public and thus cause them reputational harm. Id. {

- 72. Plaintiffs continue to suffer from anxiety, stress, nightmares, difficulty in social interactions,

embarrassment, and reputational damage. Asa result, some of Plaintiffs have sought mental health

counseling from sexual assault services.

II. Procedural History

In the now operative Amended Complaint, filed on April 20, 2022, Plaintiffs named as

. Defendants (1) Prince George’s County (“the County”); (2) the BOE (originally identified in the

pleading as PGCPS); and (3) the Individual Defendants in both their official and individual

capacities. The Amended Complaint alleged the following causes of action, in the following

numbered counts, against all Defendants except as otherwise specified: (1) a violation of Title IX

against the BOE, Barrett, Pacheco, Gover, and Watts; (2) a cause of action under 42 U.S.C. § 1983

alleging violations of the Fourth, Fifth, and Fourteenth Amendments to the Constitution against

the BOE, Barrett, Pacheco, Gover, and Watts; (3) a § 1983 claim based on supervisory liability

against the County; (4) a § 1983 claim based on municipal liability against the County: (5) a

violation of the Fourth Amendment; (6) a violation of Article 24 of the Maryland Declaration of

Rights; (7) invasion of privacy or intrusion upon seclusion; (8) gross negligence; (9) negligent

5 .

supervision against the County and the BOE; (10) respondeat superior against the County and the

BOE; and (11) intentional infliction of emotional] distress.

On May 27, 2022, the parties entered a Stipulation agreeing to the dismissal of all claims

against Dr. Goldson in her individual capacity. On July 18, 2022, pursuant to a Motion to Dismiss,

the Court dismissed all claims against the County. The BOE has filed an Answer. The Individual

Defendants have filed the pending Motion to Dismiss.

DISCUSSION

In their Motion, the Individual Defendants seek dismissal of the claims against them based

on the following arguments: (1) as to Count 1, individuals, including school officials, may not be □

held liable for violations of Title [X; (2) as to Count 2, individuals may not be held liable in their

official capacities under 42 U.S.C. § 1983; (3) as to Count 4, individuals may not be held liable

under § 1983 based ona municipal custom or policy; (4) as to Counts 2, 5, 6, and 7, the claims of

violations of the Fourth Amendment and Article 24 of the Maryland Declaration of Rights, as well

as the claim for an invasion of privacy, all fail because Plaintiffs had no reasonable expectation of

privacy when they were changing clothes in the principal’s office; and (5) as to Counts 8 and 11,

Plaintiffs have failed to state plausible claims of gross negligence and intentional infliction of

emotional distress. The Individual Defendants also seek dismissal of any claim for punitive

damages on the grounds that Plaintifis have failed to allege sufficient facts to support such a claim, ~

Because Count 4 was asserted against the County only, and not against any of the

Individual Defendants, the Court need not and will not address the argument relating to Count 4. □

OL Legal Standard

To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts

to state a plausible claim for relief. Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). A claim is

plausible when the facts pleaded allow “the court to.draw the reasonable inference that the □□

defendant is liable for the misconduct alleged.” Jd. Legal conclusions or conclusory statements

do not suffice. Jd The Court must examine the complaint as a whole, consider the factual

allegations in the complaint as true, and construe the factual allegations in the light most favorable

to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of

Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). .

II. Title IX

In Count 1, Plaintiffs have alleged that the BOE, Barrett, Pacheco, Gover, and Watts have

violated Title [X. The Individual Defendants argue that the Title LX claims against Barrett,

Pacheco, Gover, and Watts must be dismissed because individuals may not be held liable for

violations of Title IX. Under Title IX, “[n]o person . . . 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.” 20 U.S.C. § 1681(a). Title IX provides

individuals subject to discrimination in violation of Title IX with a private right of action-against

the offending institution. Cannon v. Univ. of Chicago, 441 U.S. 677, 709 (1979). However,

because school officials are not themselves recipients of federal funds, they may not be sued in

their individual capacities for violations of Title IX. Jennings v. Univ. of N. Carolina at Chapel

Hill, 444 F.3d 255, 268 n.9 (4th Cir. 2007). Thus, the Motion will be granted as to the Title IX

claims against the Individual Defendants in their individual capacities.

As for the Title IX claims against the Individual Defendants in their official capacities, □

such claims “generally represent only another way of pleading an action against an entity of which

an officer is an agent.” Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995). The real “party in interest”

is the government entity itself, Jd. The Title IX claims against the Individual Defendants in their

7 .

official capacities are therefore the same as the Title IX claim against the BOE, to which the BOE

has filed an Answer and which remains in the case. See, e.g., Edwards v. City of Goldsboro, 178

F.3d 231, 244 n.8 (4th Cir. 1999) (finding that the plaintiff's § 1983 claims against city officials

in their official capacities must be treated as claims against the city itself). Because the Title Ix

claims against the Individual Defendants in their official capacities are duplicative of the Title IX

claim against the BOE, they will be dismissed.

Il. Section 1983 Official Capacity Claims

. The Individual Defendants argue that the § 1983 claims against them in their official

capacities should be dismissed because government officials may not be sued in their official

capacities under § 1983. Under § 1983, individuals may sue in federal court “[e]very person” who,

under color of state law, deprives them of “any rights, privileges, or immunities secured by the

Constitution and laws” of the United States, 42 U.S.C. § 1983. A state is not a “person” within

the meaning of § 1983 and is therefore not a proper defendant in a § 1983 case. See Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71 (1989). In turn, because an official capacity suit against a

government official “is no different from a suit against.the State itself,” the claims against the

Individual Defendants in their official capacities are likewise not claims against a “person” under

§ 1983 and therefore must be dismissed. See id. . Thus, the Motion will be granted as to the § 1983

. claims against the Individual Defendants in their official capacities.

IV. Reasonable Expectation of Privacy

The Individual Defendants seek dismissal of the claims in Counts 2, 5, 6, and 7 based on

the argument that Plaintiffs had no reasonable expectation of privacy when they changed clothes

in the principal’s office. Because § 1983 is the avenue through which plaintiffs may allege

constitutional violations against state actors, Counts 2 and 5 are effectively the same claim: a

claim under § 1983 that Defendants violated the Fourth Amendment by video recording them

while they were changing. Count 6 is a claim that the same conduct violated Article 24 of the

Maryland Declaration of Rights. Count 7 is a common law invasion of privacy or intrusion upon

seclusion claim. See Hollander v. Lubow, 351 A2d 421, 425 (Md. 1976) (holding that invasion

of privacy includes “intrusion upon the seclusion of another,” which occurs when someone

“intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his

_ private affairs or concerns. . . if the intrusion would be highly offensive to a reasonable person”);

Harleysville Preferred Ins. Co, v. Rams Head Savage Mill, LLC, 187 A.3d 797, 808-09 (Md. Ct.

Spec. App. 2018) (finding that the nonconsensual video surveillance of women while in a

restaurant restroom constituted an intrusion upon-seclusion).

The Fourth Amendment provides that the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

U.S. Const. amend. IV. The Fourth Amendment protects students attending public schools, such

as Plaintiffs, from unreasonable searches and seizures conducted by school officials. See New

Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985); DesRoches by DesRoches v. Caprio, 156 F.3d 571,

574 (4th Cir, 1998). Unauthorized video recording by government officials constitutes a search

within the meaning of the Fourth Amendment. See United States v. Vankesteren, 553 F.3d 286,

289-91 (4th Cir. 2009) (evaluating the reasonableness of the warrantless installation of a video

camera as a search under the Fourth Amendment); Norwood v. Bain, 166 F.3d 243, 247-51 (4th

Cir. 1999) (evaluating the reasonableness of video recording of individuals and searching bags at

a roadside checkpoint as a search within the Fourth Amendment);:Brannum v. Overton Cnty. Sch.

Bd., 516 F.3d 489, 496 (6th Cir. 2008) (finding that “there can be no dispute” that videotaping

students in a locker room constituted a search under the Fourth Amendment).

In 7.£.0., the United States Supreme Court established a two-part test for determining

whether a search conducted by school personnel is reasonable. 7.£.0., 469 U.S. at 341. Courts

must consider (1) whether the action was “justified at its inception”; and (2) whether the search

“as actually conducted” was “reasonably related in scope to the circumstances which justified the

interference in the first place.” /d. (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)); see DesRoches

by DesRoches, 156 F.3d at 574—75. Here, the Individual Defendants have not offered, and the

pleadings do not support, any justification for the installation of the hidden camera in the

principal’s office and the surreptitious video recording of Plaintiffs and their fellow Pom and

Dance Team members while they were undressed. Specifically, the Individual Defendants have

not alleged that the hidden camera was installed for a purpose identified in the case law as

potentially permissible, such as to “turn up evidence” that a student had violated or was violating

the “law or the rules of the school” or because students were in “imminent danger of injury on

school premises.” 7.L.0., 469 U.S. at 341-42; Brannum, 516 F.3d at 496. Even before considering

Plaintiffs’ allegation that the Individual Defendants’ motivation was sexual in nature, there is no

to conclude that the video recording was either justified at the inception or conducted in a

manner reasonably related in scope to circumstances that would justify the search.

The Individual Defendants’ only argument against the Fourth Amendment and related

claims in Counts 2, 5, 6, and 7 is that Plaintiffs had no reasonable expectation of privacy when

they were changing clothes in the principal’s office. The protections of the Fourth Amendment

attach only when the individual alleging a violation had a legitimate, reasonable expectation of

privacy in the place searched or item seized. See Rakas v. Illinois, 439 U.S. 128, 143 (1978); Doe

v. Broderick, 225 F.3d 440, 450 (4th Cir. 2000). Although the Supreme Court has stated that

student athletes may have a lesser expectation of privacy than the general public or even other

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students, it did so in the context of a claim that a drug test violated the Fourth Amendment and □

_ notably did not find that they had no reasonable expectation of privacy in a locker room,

particularly on the issue of whether they could dress in a locker room free from video surveillance.

See Vernonia Sch. Dist. 47] v. Acton, 515 U.S. 646, 657-60 (1995). Rather, courts have held that

students have a reasonable expectation of privacy while dressing in a school locker room that they

will not be subjected to video recording because they “retain a significant privacy interest in their

unclothed bodies.” See Brannum, 516 F.3d at 496 (quoting Beard v. Whitmore Lake Sch. Dist.,

402 F.3d 598, 604 (6th Cir. 2008)). In Brannum, 34 middle school students asserted a § 1983

claim alleging that school officials violated the Fourth Amendment by installing and operating

video surveillance equipment in the boys’ and girls’ locker rooms without their knowledge or

consent and by viewing and retaining the recorded images. Jd at 491-92. Although the

defendants asserted that the video surveillance was justified by school security needs, the court

found that surveillance of school hallways and “other areas in which students mingle in the normal

_ course of student life” was distinct from “camera surveillance of students dressing and undressing

in the locker room” and concluded that the video recording was an unreasonable search that

violated the Fourth Amendment. /d. at 498.

Here, although the principal’s office was not a formal locker room, the allegations in the

Amended Complaint support the reasotiable inference that it was the functional equivalent of a

locker room for the Pom and Dance Team. In particular, Plaintiffs have alleged facts

demonstrating that the formal locker rooms were used by other athletic teams, that the faculty co-

sponsor of the Pom and Dance Team held team meetings in the principal’s office immediately

before performances and competitions, and that she was aware that the team members used it as a

locker room. By all outward appearances, it was a “safe and private” place. Am. Compl. □ 31.

11

Based on these facts, the Court concludes that Plaintiffs had a reasonable expectation of privacy

while using the principal’s office as a locker room, particularly in their own unclothed bodies. See

Brannum, 516 F.3d at 496, 498. Accordingly, the Court rejects the Individual Defendants’

argument that the claims in Counts 2, 5, 6, and 7 should be dismissed because Plaintiffs have not

properly alleged facts demonstrating a reasonable expectation of privacy.

Although the Individual Defendants briefly reference qualified immunity and claim that

the right at issue was not clearly established at the time of the relevant events, they provide.no

meaningful analysis of this defense. See Meyers v. Balt. Cnty., 713 F.3d 723, 731 (4th Cir. 2013)

(“The burden of proof and persuasion with respect to a defense of qualified immunity rests on the

official asserting that defense.”) In any event, the Court will not dismiss these claims on qualified

immunity grounds because it finds that the Fourth Amendment right at issue was clearly

established by a consensus of cases of persuasive authority. See Harlow v. Fitzgerald, 457 U.S.

818-19 (1982) (“If the law was clearly established, the immunity defense ordinarily should

fail.”); Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538-39 (4th Cir. 2017) (“In conducting the

clearly established analysis... we may look to a consensus of cases of persuasive authority from

other jurisdictions . . .”’) (citations omitted). Specitically, multiple United States Courts Appeals

have found that the Fourth Amendment protects an individual’s right to be free from observation

or video surveillance by government officials while undressed in a private location on government

Property. See Brannum, 516 F.3d at 498 (holding that students had a reasonable expectation of

privacy in not being video recorded while undressing in a school locker room); Amzen v. Palmer,

713 F.3d 369, 373 (8th Cir. 2013) (holding that video surveillance of individuals in single-

occupancy bathrooms in a civil commitment unit violated a reasonable expectation of privacy

under the Fourth Amendment); United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991) (holding .

12

that warrantless video surveillance of a government employee in a colleague’s private office

violated the Fourth Amendment). The Motion will therefore be denied as to the claims in Counts

2, 5, 6, and.7.

Vv. Gross Negligence

The Individual Defendants also argue that the Amended Complaint fails to state a claim

.for gross negligence. Under Maryland law, gross negligence is “something more than simple

negligence, and likely more akin to reckless conduct.” Barbre v. Pope, 935 A.2d 699, 717 (Md.

2007) (quoting Taylor v. Harford Cnty. Dep't of Soc. Servs., 862 A.2d 1026, 1035 (Md. 2004). It

is “an intentional failure to perform a manifest duty in reckless disregard of the consequences as

affecting the life or property of another, and also implies a thoughtless disregard of the

consequences without the exertion of any effort to avoid them.” /d. (quoting Liscombe v. Potomac

Edison Co., 495 A.2d 838, 846 (Md. 1985)). An individual acts with gross negligence when that

person “inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as

if such rights did not exist.” Jd Under this standard, courts have found gross negligence

- adequately pleaded in cases in which a plaintiff has alleged that a defendant has displayed utter

indifference or thoughtless disregard to the rights of others by failing to take certain actions to

address clear warning signs so as to prevent the harm. See, e.g., Doe v. Bd. of Educ. of Prince

George’s Cnty., 888 F. Supp. 2d 659, 669-70 (D. Md. 2012). :

Here, viewing the allegations in the light most favorable to Plaintiffs, the Court finds that

they support the conclusion that the Individual Defendants were “utterly indifferent” to Plaintiffs’

privacy rights when they arranged for or, at a minimum, were aware of but failed to end, the

nonconsensual recording of Plaintiffs while undressed. Barbre, 935 A.2d at 717. By allowing for

the filming of Plaintiffs in the outrageous manner alleged, the Individual Defendants arguably

13

acted as if Plaintiffs’ privacy rights “did not exist.” Jd Furthermore, as alleged in the Amended

Complaint, the Individual Defendants knew that Plaintiffs were repeatedly being recorded while

undressing and did nothing to remedy it for over a year. Failure to remedy such repeated

misconduct provides a further basis to support a finding of gross negligence. See Doe, 888 F.

Supp. 2d at 669-70. Notably, there is presently no basis upon which to conclude that any of the

Individual Defendants, upon learning of the recording, took meaningful steps to determine who

was responsible for it and to hold anyone accountable. See id Plaintiffs have thus alleged

sufficient facts to state a claim of gross negligence against the Individual Defendants.

VI. Intentional Infliction of Emotional Distress

Finally, the Individual Defendants contend that the Amended Complaint has not alleged

sufficient facts to state a plausible claim of intentional infliction of emotional distress (“IIED”).

To establish an TED claim under Maryland law, a plaintiff must show (1) intentional or reckless

conduct; (2) that the conduct was extreme and outrageous; (3) that the plaintiff suffered severe □

emotional distress: and (4) that there was a causal connection between the conduct and the

emotional distress. Harris v. Jones, 380 A.2d 611, 614 (Md. 1977).

The Amended Complaint sufficiently alleges an IIED claim. Conduct is extreme and

outrageous if it is “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 ina civilized

community.” Jd Although this standard is high, it is patently obvious that repeatedly filming

underaged students while undressed and without their knowledge is extreme and outrageous. The

Amended Complaint also fairly alleges that the Individual Defendants acted intentionally or

recklessly. Conduct is intentional or reckless if the tortfeasor desires to inflict severe emotional

distress, knows that such distress is certain, or substantially certain, to result from his conduct, or

14

acts recklessly in deliberate disregard of a high degree of probability that emotional distress will

follow. Id. at 614. Here, the allegations support the inference that, at a minimum, the Individual

Defendants acted recklessly in deliberate disregard of the high probability that Plaintiffs,

underaged female high school students, would experience emotional distress from the video

recording of them as they were undressed. Plaintiffs have also plausibly alleged that the Individual

Defendants’ conduct caused their emotional distress. But for the actions of the Individual

Defendants—authorizing the installation of the hidden camera and allowing it to continue to record

for over a year—Plaintiffs would not have experienced the emotional distress alleged.

Finally, the Amended Complaint fairly alleges that the emotional distress was sufficiently

severe. To successfully plead a claim for ITED, a plaintiff must allege facts demonstrating

“severe” emotional distress, but the distress “need not produce total and emotional or physical

disablement.” Figueiredo-T orres v. Nickel, 584 A.2d 69, 76 (Md. 1991) (quoting B.N. v. KK,

538 A.2d 1175, 1181-82 Md. 1988)). Moreover, severity “must be measured in light of the

outrageousness of the conduct.” /d Here, Plaintiffs allege that, upon learning about the

recordings, they became “incredibly anxious about what recordings exist and who has seen them”

and that they feel “objectified” and sexually “violated.” Am. Compl. 70. They further allege

that they continue to experience anxiety, stress, nightmares, difficulty in social interactions, ~

embarrassment, and reputational damage that has required ongoing mental health counseling from

those who provide services to victims of sexual assault. They also allege “great mental anguish

and distress” from the potential that copies of the recordings could be released to the public and

cause damage to their reputations. /d. | 72. Based on these allegations, and given the nature of

the conduct against Plaintiffs and the fact that they suffered the trauma at a vulnerable age, it is

reasonable to infer that the emotional distress has been sufficiently severe to support an IIED

. . 15

claim. See Buettner-Hartsoe v. Balt. Lutheran High Sch. Assoc., No. RDB-20-3132, 2021 WL

2580385, at *20-21 (D. Md. June 23, 2021) (finding that allegations that plaintiffs who had been

subjected to sexual harassment at school experienced “anxiety and depression,” had “undergone

mental health treatment,” and could not finish their education at the school were sufficient to plead

an ITED claim against the school for failing to protect them from the harassment); Reagan v. Rider,

521 A.2d 1246, 1247, 1251 (Md. Ct. Spec. App. 1987) (finding that the plaintiff, who experienced

embarrassment, humiliation, depression, weight gain, and difficulty forming normal personal and

sexual relationships, and required multiple years of mental health treatment, had sufficiently □

alleged severe emotional distress in support of an ITED claim), The Motion to Dismiss will thus

be denied as to the claim for ITED.

VIE. Punitive Damages

Finally, the Individual Defendants argue that Plaintiffs may not pursue punitive damages

as aremedy. Although they argue that such damages are unavailable for a Title IX claim, because

the Court will grant the Motion as to the Title IX claims against the Individual Defendants, it need

not address that issue.

Punitive damages for violations of § 1983 are available only when the defendant’s conduct .

is shown to be motivated by “evil motive or intent” or when it involves “reckless or callous

indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).

Here, Plaintiffs have alleged that the Individual Defendants’ motivation to install the hidden

camera was sexual in nature, which is a fair inference under the circumstances and is sufficient to

demonstrate evil motive or intent. At a minimum, Plaintiffs’ allegations that the Individual

Defendants arranged or allowed for the video recording of female students while undressed, and

did so for over a year, certainly demonstrate reckless indifference to Plaintiffs’ federally protected

16

rights under the Fourth Amendment. See, e.g., Williams v. Kaufman Cnty., 352 F.3d 994, 1015~—

16 (Sth Cir. 2003) (finding that the defendant’s conduct, which included an unauthorized strip

search of the plaintiff, was sufficient to demonstrate reckless or callous indifference to the

plaintiff's Fourth Amendment rights); Hicks v. Ferreyra, 582 F. Supp. 3d 269, 295-97 (D. Md.

2022) (finding that punitive damages were properly awarded based on evidence that the defendant

conducted an unreasonable traffic stop in reckless disregard of the plaintiff's Fourth Amendment

rights). Thus, the Motion will be denied as to the claim for punitive damages based on the § 1983

claims. © ,

As for the state law claims, under Maryland law, punitive damages are available for “the

most heinous” of intentional torts and are awarded to punish a defendant whose conduct is

characterized by “actual malice,” such as evil motive, intent to injure, or fraud. Beall v. Holloway

Johnson, 130 A.3d 406, 419-20 (Md. 2016). Negligence alone, no matter how gross, wanton, □□

outrageous, will not satisfy the standard of actual malice. Jd Accordingly, the Motion will be

granted as to punitive damages for the claim of gross negligence. However, as discussed above,

Plaintiffs have sufficiently alleged that the Individual Defendants’ conduct was characterized by

evil motive and thus actual malice. See Summit Loans, Inc. v. Pecola, 288 A.2d 114, 118 (Md.

1972) (upholding a jury’s award of punitive damages on a claim of invasion of privacy). Thus, at

this stage, Plaintiffs will be permitted to seek punitive damages for the invasion of privacy and

Article 24 claims.

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CONCLUSION

For the foregoing reasons, the Individual Defendants’ Motion to Dismiss will be

GRANTED IN PART and DENIED IN PART. The Motion will be granted as to the Title IX

claims against the Individual Defendants and the § 1983 official capacity claims against the

Individual Defendants. The Motion will be otherwise denied. A separate Order shall issue.

=e Se

Date: December 6, 2022 ——

THEODORE D. CHUA

United States District Ju EN

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