Scott

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

KINJI SCOTT,

Plaintiff,

v. Civil No.: 8:25-cv-01587-JRR

ERIKA MALONE, et al.,

Defendants.

MEMORANDUM OPINION

Pending before the court is Plaintiff’s Motion for Equitable Tolling of Filing Deadline

(ECF No. 7) and Defendants’ Motion to Dismiss. (ECF No. 21; the “Motion.”) The court has

reviewed all papers; no hearing is necessary. Local Rule 105.6 (D. Md. 2025). For the reasons

set forth below Plaintiff’s Motion for Equitable Tolling of Filing Deadline will be denied as moot,

and Defendants’ Motion will be granted.

I. BACKGROUND1

Pro se Plaintiff Kinji Scott is a 55-year-old African American resident of Baltimore,

Maryland. (ECF No. 1 ¶ 1.) Plaintiff asserts he is disabled and receives Social Security Disability

Insurance (“SSDI”) benefits for his disability. Id. ¶ 5. A letter attached to Plaintiff’s Complaint

from his doctor indicates that he has been treated for depression, “which has been disabling” and

that Plaintiff has “multiple functional limitations related to his depression,” including difficulty

performing self-care activities, routine tasks, and “difficulties with memory, attention and

concentration[.]” (ECF No. 1-3 at p. 1.) Plaintiff is a “graduating student” of Mercer County

1 For purposes of resolving the Motion to Dismiss, the court accepts as true all well-pled facts set forth in the Complaint

at ECF No. 1 and supplements thereto at ECF Nos. 9, 14, and 17. Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d

193, 208 (4th Cir. 2017).

Community College’s Funeral Service program. (ECF No. 1 ¶ 5.) As part of the program, Plaintiff

arranged to complete a “barter-based apprenticeship with a licensed Maryland funeral director,

John Williams” of John Williams Funeral Home. Id. ¶ 9.

Plaintiff completed his apprenticeship with Mr. Williams “by exchanged services instead

of receiving wages.” Id. ¶ 10. He alleges that a barter arrangement was necessary because his

SSDI disability status limits his ability to engage in full-time paid employment without risk of loss

of his housing and healthcare benefits. Id. On or about September 27, 2024, Plaintiff submitted

his final apprenticeship paperwork to Licensing Coordinator Ashley Combs for review by

Defendant the Maryland Board of Morticians and Funeral Directors (the “Board”), the licensing

authority for funeral directors in Maryland. Id. ¶¶ 7, 11. The Board operates under the Maryland

Department of Health, also a named Defendant. Id. ¶ 7.

On September 28, 2024, Defendant Erika Malone, Executive Director of the Board,

informed Plaintiff that “student apprentices are not recognized in Maryland[.]” (ECF No. 1 ¶ 12.)

Plaintiff alleges that Defendant Malone later cited “an alleged employment issue” as the basis for

declining to recognize his apprenticeship. Id. Plaintiff asserts that Maryland law “permits student

apprenticeships and does not prohibit barter-based arrangements.” Id. ¶ 13. Plaintiff further

alleges that, notwithstanding his completion of all academic and apprenticeship requirements,

Defendants “failed to provide a reasonable accommodation for Plaintiff’s disability” by failing to

recognize his apprenticeship and denying him eligibility to proceed in the licensure process,

including sitting for the National Board Examination (“NBE”). Id. ¶¶ 14–15.

On May 16, 2025, Plaintiff filed the instant Complaint (ECF No. 1), which asserts the

following claims:

Count I: Violation of Title II of the Americans with Disabilities Act (42 U.S.C. § 12132);

Count II: Violation of Section 504 of the Rehabilitation Act (29 U.S.C. § 794);

Count III: Violation of Maryland Anti-Discrimination Law (MD. CODE ANN., STATE GOV’T

§ 10-1103).

(ECF No. 1 ¶¶ 16–24.) Plaintiff seeks declaratory and injunctive relief, compensatory damages of

not less than $150,000, punitive damages against Defendant Malone in her individual capacity,

costs, expenses, and attorneys’ fees, and other relief “as the [c]ourt deems just and proper.” Id. at

p. 4.2

On May 21, 2025, Plaintiff filed a Motion for Equitable Tolling of Filing Deadline (ECF

No. 7) seeking equitable tolling of any statutory or administrative deadlines. On June 30, 2025,

Defendants filed their Motion. (ECF No. 21.) Plaintiff filed a response on July 21, 2025. (ECF

No. 23.). Defendants filed their reply on August 4, 2025. (ECF No. 24.)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

“Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of

subject matter jurisdiction.” Barnett v. United States, 193 F. Supp. 3d 515, 518 (D. Md. 2016).

“The plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject

matter jurisdiction.” Mayor & City Council of Balt. v. Trump, 416 F. Supp. 3d 452, 479 (D. Md.

2019). Subject matter jurisdiction challenges may proceed in two ways: a facial challenge or a

factual challenge. Id. A facial challenge asserts “that the allegations pleaded in the complaint are

insufficient to establish subject matter jurisdiction.” Id. A factual challenge asserts “that the

jurisdictional allegations of the complaint [are] not true.” Id. (quoting Kerns v. United States, 585

2 In a supplement to the Complaint, Plaintiff states that he “withdraws any prior fixed monetary demand, including

the request for $150,000 in compensatory damages” and his “primary and preferred form of relief” is the issuance of

a Maryland Funeral Service License. (ECF No. 17-1 at p. 1.) Plaintiff has submitted several supplements to his

Complaint. (ECF Nos. 9, 14, 17.)

F.3d 187, 192 (4th Cir. 2009)). “In a facial challenge, ‘the facts alleged in the complaint are taken

as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject

matter jurisdiction.’” Id. (quoting Kerns, 585 F.3d at 192 (instructing that in a facial challenge to

subject matter jurisdiction the plaintiff enjoys “the same procedural protection as . . . under a Rule

12(b)(6) consideration”)). “[I]n a factual challenge, ‘the district court is entitled to decide disputed

issues of fact with respect to subject matter jurisdiction.’” Id.

Defendants raise a facial challenge to the court’s subject matter jurisdiction, asserting that

Eleventh Amendment sovereign immunity bars Plaintiff’s claim under Title II of the ADA against

Defendants. (ECF No. 6-1 at pp. 7–9.) The defense of sovereign immunity is a jurisdictional bar

because “sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court

finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-

matter jurisdiction.” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir.

2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). “Given the

unique attributes of sovereign immunity, we have held that the burden of proof falls to an entity

seeking immunity as an arm of the state, even though a plaintiff generally bears the burden to prove

subject matter jurisdiction.” Williams v. Big Picture Loans, LLC, 929 F.3d 170, 176 (4th Cir.

2019) (citing Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014)).

B. Federal Rule of Civil Procedure 12(b)(6)

A motion asserted under Rule 12(b)(6) “test[s] the sufficiency of a complaint;” it does not

“resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”

Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Therefore, “a Rule 12(b)(6) motion should only

be granted if, after accepting all well-pleaded allegations in the plaintiff’s complaint as true and

drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it appears certain

that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.”

Edwards, 178 F.3d at 244.

“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “Factual

allegations must be enough to raise a right to relief above the speculative level on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). “[A] complaint that provides

no more than ‘labels and conclusions,’ or ‘a formulaic recitation of the elements of a cause of

action,’ is insufficient.” Bourgeois v. Live Nation Ent., Inc., 3 F. Supp. 3d 423, 434 (D. Md. 2014)

(quoting Twombly, 550 U.S. at 555). “The [c]ourt must be able to deduce ‘more than the mere

possibility of misconduct’; the facts of the complaint, accepted as true, must demonstrate that the

plaintiff is entitled to relief.” Evans v. 7520 Surratts Rd. Operations, LLC, No. 8:21-CV-01637-

PX, 2021 WL 5326463, at *2 (D. Md. Nov. 16, 2021) (quoting Ruffin v. Lockheed Martin Corp.,

126 F. Supp. 3d 521, 526 (D. Md. 2015)).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court generally does not

consider evidence outside of the complaint. The court may, however, consider “documents

integral to and relied upon in the complaint, ... so long as the plaintiff does not question their

authenticity.” Fairfax v. CBS Corp., 2 F.4th 286, 292 (4th Cir. 2021). “An integral document is

a document that by its ‘very existence, and not the mere information it contains, gives rise to the

legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.

Supp. 2d. 602, 611 (D. Md. 2011) (quoting Walker v. S.W.I.F.T. SCRL, 517 F. Supp. 2d 801, 806

(E.D. Va. 2007)). “In addition to integral and authentic exhibits, on a 12(b)(6) motion the court

‘may properly take judicial notice of matters of public record.’” Id. (quoting Philips v. Pitt Cnty.

Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Specifically, the court may take judicial notice

of publicly available information on state and federal government websites without converting the

motion to one for summary judgment. See U.S. v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017) (“This

court and numerous others routinely take judicial notice of information contained on the state and

federal government websites.”).

Plaintiff attaches numerous exhibits to his Complaint and supplements thereto. In response

to Plaintiff’s allegations that he is disabled and that Defendants failed to reasonably accommodate

his disability, Defendants rely on a letter from Plaintiff’s treating physician attached to Plaintiff’s

Complaint describing his disability and its functional limitations. (ECF No. 1-3 at p. 1.) The court

finds that this letter is integral to the Complaint because Plaintiff relies on it to describe and

demonstrate his ADA qualifying disability (a requirement to recover under the ADA), and Plaintiff

does not question its authenticity. The court does not discern that the other exhibits attached to

Plaintiff’s Complaint or supplements are integral to Plaintiff’s Complaint, and declines to consider

them to evaluate the Motion under Rule 12(b)(6).

III. ANALYSIS

As an initial matter, the court is ever mindful that pro se filings “must be construed

liberally, . . . so as to do substantial justice,” and are held to less stringent standards than filings

drafted by lawyers. Elijah v. Dunbar, 66 F.4th 454, 460 (4th Cir. 2023) (quoting Erickson v.

Paradus, 551 U.S. 89, 94 (2007); FED. R. CIV. P. 8(f); Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“In practice, this liberal construction allows courts to recognize claims despite various formal

deficiencies, such as incorrect labels or lack of cited legal authority.” Wall v. Rasnick, 42 F.4th

214, 218 (4th Cir. 2022). Such liberal construction, however, does not absolve Plaintiff from

pleading a plausible claim, and this court “may not act as an advocate for a self-represented

litigant” by “conjur[ing] up” issues not presented. Desgraviers v. PF-Frederick, LLC, 501 F.

Supp. 3d 348, 351 (D. Md. 2020) (quoting Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310,

314 (D. Md. 2014), aff’d, 584 F. App’x 135 (4th Cir. 2014); Beaudett v. City of Hampton, 775

F.2d 1274, 1278 (4th Cir. 1985)).

A. Plaintiff’s Motion for Equitable Tolling of Filing Deadline

Plaintiff’s Motion for Equitable Tolling of Filing Deadline seeks equitable tolling of any

statutory or administrative deadlines to permit the filing of his Complaint. (ECF No. 7.) Plaintiff

asserts that he was misled “by representatives of the Maryland Department of Health’s Equal

Employment Opportunity Office . . . into believing that he was participating in a formal [federal]

Equal Employment Opportunity (‘EEOC’) investigation.” Id. ¶ 1. He now seeks equitable tolling

of the deadline to file a timely charge of discrimination with the EEOC. Id. ¶ 5. Defendants did

not file a response to the motion.

“Title II of the ADA does not contain an administrative exhaustion requirement.”

Pathways Psychosocial v. Town of Leonardtown, MD, 223 F. Supp. 2d 699, 713 (D. Md. 2002);

see also Magness v. Harford Cnty., No. CV ELH-16-2970, 2018 WL 1505792, at *10 (D. Md.

Mar. 27, 2018) (finding that “Title II of the ADA does not require administrative exhaustion.”)

(collecting cases). Moreover, the Rehabilitation Act does not require administrative exhaustion

by non-federal employees. See Bowman-Cook v. Wash. Metro. Area Transit Auth., DKC-14-1877,

2017 WL 3592450, at *5 n.4 (D. Md. Aug. 21, 2017) (“Non-federal employees are not required to

exhaust any administrative remedies under the Rehabilitation Act[.]”); Harris v. O'Malley, WDQ-

13-2579, 2015 WL 996557, at *5 (D. Md. Mar. 4, 2015) (“‘[C]ourts have uniformly held that non-

federal employees need not exhaust administrative remedies before bringing a private action under

Section 504’” of the Rehabilitation Act.) (citation omitted). Whereas Plaintiff is not a federal

employee, his ADA and Rehabilitation Act claims are not subject to administrative exhaustion,

and he need not file a charge with the EEOC to proceed with those claims (Counts I and II) in this

court.

With respect to statutes of limitation for filing a court action:

The ADA and Rehabilitation Act do not provide a statute of

limitations. Accordingly, courts “borrow” the most appropriate or

analogous state statute of limitations and apply it to the federal cause

of action. See A Soc’y Without A Name v. Virginia, 655 F.3d 342,

347 (4th Cir. 2011), cert. denied, 566 U.S. 937, 132 S.Ct. 1960, 182

L.Ed.2d 772 (2012). Maryland courts apply the three-year

limitations period governing general civil actions to ADA and

Rehabilitation Act claims. Schalk v. Associated Anesthesiology

Practice, 316 F.Supp.2d 244, 251 (D. Md. 2004); Kohler v.

Shenasky, 914 F.Supp. 1206, 1211 (D. Md. 1995).

Jeandron v. Bd. of Regents of Univ. Sys. of Maryland, 510 F. App’x 223, 226 (4th Cir. 2013).

Here, the alleged discrimination occurred on September 28, 2024, and Plaintiff filed his Complaint

less than a year later, on May 16, 2025. Therefore, Plaintiff did not miss the applicable three-year

statutory deadline for filing his ADA and Rehabilitation Act claims.

Accordingly, Plaintiff’s Motion for Equitable Tolling of Filing Deadline will be denied as

moot.3

B. Defendants’ Motion to Dismiss

Defendants argue that all of Plaintiff’s claims should be dismissed because: (1) Plaintiff’s

ADA and Rehabilitation Act claims (Counts I and II) fail to state claims upon which relief can be

granted; (2) Plaintiff’s ADA and Rehabilitation Act claims are precluded as against Defendant

Malone in her individual capacity; (3) Plaintiff’s state law claim (Count III) fails to state a claim

3 The court does not discuss whether Count III of Plaintiff’s Complaint under MD. CODE ANN., STATE GOV’T § 10-

1103 is subject to a statute of limitations or administrative exhaustion. As discussed infra, Plaintiff effectively

abandons this claim, and the record suggests that Plaintiff may not have intended to rely on the cited statute.

upon which relief can be granted; (4) Eleventh Amendment sovereign immunity bars Plaintiff’s

ADA claim; and (5) Plaintiff has failed to effectuate service on Defendants. (ECF No. 21-1 at pp.

4–12.)

The court begins by addressing Defendants’ arguments as to Plaintiff’s ADA and

Rehabilitation Act claims.

1. Counts I and II – ADA and Rehabilitation Act Claims

a. Eleventh Amendment Sovereign Immunity

Defendants argue that Plaintiff’s ADA claim (Count I) is barred by Eleventh Amendment

sovereign immunity. (ECF No. 21-1 at pp. 8–11.) Plaintiff responds that Defendants are not

entitled to Eleventh Amendment sovereign immunity or qualified immunity because he “seeks

prospective injunctive and declaratory relief to correct ongoing violations.” (ECF No. 23 at p. 11.)

The Eleventh Amendment provides that “the Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

CONST. AMEND. XI. Under the Eleventh Amendment, states generally enjoy immunity from suit

unless a state waives its immunity, or the immunity is abrogated by Congress. See Bd. of Tres. v.

Garrett, 531 U.S. 356, 363–64 (2001) (“The ultimate guarantee of the Eleventh Amendment is

that nonconsenting States may not be sued by private individuals in federal court. We have

recognized, however, that Congress may abrogate the States’ Eleventh Amendment immunity

when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional

authority.” (citations omitted)); Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019) (“[S]tate

sovereign immunity bars all claims by private citizens against state governments and their

agencies, except where Congress has validly abrogated that immunity or the state has waived it.”).

A finding that a defendant enjoys sovereign immunity on a claim presents a jurisdictional bar to

the court’s adjudicative power over such a claim. Cunningham v. General Dynamics Info. Tech.,

888 F.3d 640, 649 (4th Cir. 2018).

Sovereign immunity also operates to bar suit against state agencies. McCray v. Maryland

Dep’t of Transp., Maryland Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014); see Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–102 (1984) (“It is clear, of course, that in the

absence of consent a suit in which the State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment.”). As relayed above, MDH is a “principal

department” of Maryland state government and the Board operates within MDH. MD. CODE ANN.,

HEALTH-GEN. § 2-101; MD. CODE ANN., HEALTH OCC. § 7-201 (“There is a State Board of

Morticians and Funeral Directors in the Department.”). MDH is therefore a state agency entitled

to sovereign immunity.

Plaintiff asserts Defendant Erika Malone is Executive Director of the Board and is being

sued in both her official and individual capacities. (ECF No. 1 ¶ 6.) Relevant here, “[l]awsuits

against state officials in their official capacities . . . are the equivalent of suits against the state

itself.” Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 167 (D. Md. 2022); see

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (instructing that “a suit against a

state official in his or her official capacity is not a suit against the official but rather is a suit against

the official’s office”) (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)); Bruce & Tanya &

Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty., Virginia, 355 F. Supp. 3d 386, 399–400 (E.D.

Va. 2018) (explaining that “because a state official sued in his official capacity stands in for the

entity he represents, he is equally entitled to assert that entity’s sovereign immunity from suit.”).

“In contrast, the Eleventh Amendment does not bar ‘an award of damages against an official in his

personal capacity [that] can be executed only against the official’s personal asserts.’” Adams v.

Ferguson, 884 F.3d 219, 224–25 (4th Cir. 2018) (quoting Kentucky v. Graham, 473 U.S. 159, 166

(1985)).

“The Fourth Circuit has identified three exceptions to the Eleventh Amendment’s

prohibition of suits against a state or an arm of the state.” Doe v. Cmty. Coll. of Baltimore Cnty.,

595 F. Supp. 3d 392, 409 (D. Md. 2022); Anderson v. Dep’t of Pub. Safety & Corr., No. 24-1339,

2024 WL 4814882, at *1 (4th Cir. Nov. 18, 2024) (identifying the three Eleventh Amendment

immunity exceptions). The three exceptions include:

First, Congress may abrogate the States’ Eleventh Amendment

immunity when it both unequivocally intends to do so and acts

pursuant to a valid grant of constitutional authority. Bd. of Trustees

of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 [121 S. Ct. 955, 148

L.Ed.2d 866] (2001) . . . . Second, the Eleventh Amendment permits

suits for prospective injunctive relief against state officials acting in

violation of federal law. Frew ex rel. Frew v. Hawkins, 540 U.S.

431, 437 [124 S. Ct. 899, 157 L.Ed.2d 855] (2004) . . . . Third, a

State remains free to waive its Eleventh Amendment immunity from

suit in a federal court. Lapides v. Bd. of Regents of Univ. Sys. of

Ga., 535 U.S. 613, 618 [122 S. Ct. 1640, 152 L.Ed.2d 806] (2002).

Doe., 595 F. Supp. 3d at 409 (quoting Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666 F.3d

244, 249 (4th Cir. 2012)).

By way of background, “Title II forbids public entities—including State and local

governments and their departments, agencies, or instrumentalities, 42 U.S.C. § 12131(1)—from

excluding disabled persons from programs, services, or benefits ‘by reason of’ their disabilities.”

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 488 (4th Cir. 2005)

(quoting 42 U.S.C. § 12132). “Title II also imposes an affirmative obligation to make ‘reasonable

modifications to rules, policies, or practices, the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids and services’ to enable disabled persons

to receive services or participate in programs or activities.” Id. (quoting 42 U.S.C. § 12131(2)).

As to the first immunity exception, the ADA provides that “[a] State shall not be immune

under the eleventh amendment to the Constitution of the United States from an action in Federal

or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202. “This

provision clearly and unambiguously expresses congressional intent to abrogate the States’

Eleventh Amendment immunity with respect to claims brought under the ADA.” Constantine,

411 F.3d at 484. Thus, under the first exception, the question becomes “whether Congress had the

power to give effect to its intent.” Id. (quoting Tennessee v. Lane, 541 U.S. 509, 518 (2004).

Accordingly, “Title II of the ADA abrogates the States’ Eleventh Amendment immunity only if

its enactment represents a valid exercise of authority under § 5 of the Fourteenth Amendment.”

Id. In evaluating whether Title II of the ADA validly abrogates Defendants’ sovereign immunity

under § 5 of the Fourteenth Amendment, the Supreme Court has instructed lower courts to apply

a three-part test that considers:

(1) which aspects of the State’s alleged conduct violated Title II; (2)

to what extent such misconduct also violated the Fourteenth

Amendment; and (3) insofar as much misconduct violated Title II

but did not violate the Fourteenth Amendment, whether Congress’s

purported abrogation of sovereign immunity as to that class of

conduct is nevertheless valid.

United States v. Georgia, 546 U.S. 151, 159 (2006).

Although the parties dispute whether Defendants’ sovereign immunity has been abrogated

with respect to Plaintiff’s ADA claim, the court need not resolve that issue here. Plaintiff alleges,

and Defendants do not contest, that MDH is a state agency that receives federal funding. (ECF

No. 1 ¶ 21.) The Fourth Circuit has held “that state agencies that knowingly and willingly accept

clearly conditioned federal funding validly waive their Eleventh Amendment immunity with

respect to claims for damages under § 504 of the Rehabilitation Act.” Spencer v. Earley, 278 F.

App’x 254, 259 n.3 (4th Cir. 2008) (citing Constantine, 411 F.3d at 495–96); see also 42 U.S.C. §

2000d-7(a)(1) (“A State shall not be immune under the Eleventh Amendment . . . from suit in

Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions

of any other Federal statute prohibiting discrimination by recipients of Federal financial

assistance.”) Accordingly, Plaintiff’s claim under § 504 of the Rehabilitation Act is not barred by

the Eleventh Amendment and the court has subject matter jurisdiction over this action independent

of whether Defendants are immune from Plaintiff’s ADA claim.

Here, Plaintiff asserts effectively the same claim under both statutes and seeks the same

relief. (ECF No. 1 at pp. 3–4.) “Title II of the ADA explicitly provides that ‘[t]he remedies,

procedures, and rights’ provided under § 504 of the Rehabilitation Act ‘shall be the remedies,

procedures and rights [that Title II of the ADA] provides to any person alleging discrimination on

the basis of disability . . .’” Brown v. Dep't of Pub. Safety & Corr. Servs., 383 F. Supp. 3d 519,

551 (D. Md. 2019) (quoting 42 U.S.C. § 12133). As such, “Defendants vulnerability to suit under

Section 504 of the Rehabilitation Act precludes them from asserting that defense against

[Plaintiff’s] identical Title II claims.” Id. at 554 (finding that “it would make little sense to hold,

on the one hand, that Defendants are susceptible to suit under Section 504, but on the other hand,

that they are immune to Plaintiffs’ legally indistinguishable ADA claims.”); see Bennett-Nelson v.

Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (holding that the court need not

address the issue of abrogation under Title II of the ADA because the Rehabilitation Act claim

was not barred by sovereign immunity and afforded the same rights and remedies).

The remaining question then is whether Plaintiff states a claim for prospective relief against

Defendant Malone for an ongoing violation of federal law. “[S]uits for ‘prospective injunctive

relief against state officials acting in violation of federal law’ are permitted” pursuant to the Ex

parte Young exception. Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 168 (D.

Md. 2022) (citing Ex parte Young, 209 U.S. 123 (1908)). “Under this limited exception, a federal

court may issue prospective, injunctive relief against a state official to prevent ongoing violations

of federal law, such as when the state officer is enforcing, or threatening to enforce, an allegedly

unconstitutional state law.” Id. “To invoke the exception, the plaintiff must identify and seek

prospective equitable relief from an ongoing violation of federal law.” Allen v. Cooper, 895 F.3d

337, 354 (4th Cir. 2018), aff’d, 589 U.S. 248 (2020) (emphasis in original). The exception “‘does

not apply when the alleged violation of federal law occurred entirely in the past,’ but applies when

‘(1) the violation for which relief is sought is an ongoing one, and (2) the relief sought is only

prospective.’” Wicomico Nursing Home v. Padilla, 910 F.3d 739, 747 (4th Cir. 2018) (citations

omitted); see Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002)

(same).

Here, Plaintiff may seek prospective, injunctive relief against Defendant Malone even if

sovereign immunity were to bar Plaintiff’s ADA claim for monetary damages. Plaintiff seeks

prospective mandatory injunctive relief, as he seeks “an injunction compelling Defendants to

recognize Plaintiff’s apprenticeship and permit him to take the NBE and complete licensure[.]”

(ECF No. 1 at p. 4.)

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s ADA claim on

sovereign immunity grounds will be denied.

b. Individual Liability

Defendants also argue that Plaintiff’s ADA and Rehabilitation Act claims as against

Defendant Malone in her individual capacity must be dismissed because neither statute permits

“actions against persons in their individual capacities.” (ECF No. 24 at p. 5.) Plaintiff fails to

respond to, and thus concedes, this argument. Nonetheless, “Title II of the ADA does not

recognize a cause of action for discrimination by private individuals, only public entities.”

Pathways Psychosocial v. Town of Leonardtown, MD, 133 F. Supp. 2d 772, 780 (D. Md. 2001).

Similarly, “individuals are not subject to liability under Section 504 [of the Rehabilitation Act].”

Lewis v. Bd. of Educ. of Kent Cnty., No. JFM 07-955, 2007 WL 2343659, at *1 (D. Md. Aug. 14,

2007); see also Andrews v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. 1:23-CV-00172-

JMC, 2024 WL 520038 (D. Md. Feb. 9, 2024) (finding that plaintiffs could not allege a violation

of the ADA or Rehabilitation Act against any of the individual defendants); Polido v. Crowley,

No. 8:23-CV-00459-PX, 2024 WL 263578 (D. Md. Jan. 24, 2024) (holding that the ADA and

Rehabilitation Act “do not cover individual capacity suits.”).

Accordingly, Plaintiff’s ADA and Rehabilitation Act claims (Counts I and II) against

Defendant Malone in her individual capacity will be dismissed.

c. Failure to State a Claim

Plaintiff argues that Defendants denial of his apprenticeship application was due to the

Board’s “refusal to engage in any reasonable accommodation process” after Plaintiff disclosed his

disability and despite Plaintiff meeting all statutory perquisites for apprenticeship licensure. (ECF

No. 23 at p. 14.) Defendants do not assert that Plaintiff does not have a disability. Rather,

Defendants argue that Plaintiff’s ADA and Rehabilitation Act claims “must fail because he fails

to allege that he was excluded from participation in or denied the benefits of a public service,

program, or activity or he was otherwise discriminated against on the basis of his disability.” (ECF

No. 21-1 at p. 5.) “[S]pecifically, Plaintiff fails to allege sufficient facts to show that his disability

is connected to the accommodation sought.” Id.

As discussed supra, under Title II of the ADA, “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability in the United States ... shall, solely by reason of

her or his disability, be excluded from the participation in, be denied the benefit’s of, or be

subjected to discrimination under any program or activity receiving Federal financial assistance[.]”

29 U.S.C. § 794(a). Because the analysis of claims arising under either statute “is substantially

the same,” courts may consider them in tandem. White v. City of Annapolis, 439 F. Supp. 3d 522,

542 (D. Md. 2020).

To state a claim under Title II of the ADA or the Rehabilitation Act, a plaintiff must

plausibly allege: (1) he has a disability; (2) he was excluded from participation in, or denied the

benefits of, a public entity’s services, programs, or activities for which he was otherwise qualified;

and (3) the exclusion, denial of benefits, or discrimination was by reason of the disability. Nat’l

Fed’n of the Blind v. Lamone, 813 F.3d 494, 502–503 (4th Cir. 2016). The ADA and

Rehabilitation Act “differ only with respect to the third element, causation”—the ADA requires

“only that the disability was a motivating cause” of the exclusion, and the Rehabilitation Act

requires a plaintiff show exclusion “solely by reason of his disability.” Halpern v. Wake Forest

Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012). The Fourth Circuit has recognized “three

distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate

impact; and (3) failure to make reasonable accommodations.” A Helping Hand, LLC v. Baltimore

Cty., MD, 515 F.3d 356, 362 (4th Cir. 2008). Counts I and II center on Defendants’ failure to

make reasonable accommodations.

Maryland law requires an individual to be “licensed by the Board before the individual

may practice funeral direction” in the state. MD. CODE ANN., HEALTH OCC. § 7-302. To submit

an application for licensure, an individual must meet the qualifications set forth in § 7-303(b),

which requires, among other things, that the individual “[h]as completed not less than 1 year and

not more than 4 years of licensed apprenticeship[.]” Id. § 7-303(b)(2). Pursuant to § 7-306, “[a]n

individual shall obtain an apprentice license from the Board before beginning an apprenticeship in

[Maryland].” Id. § 7-306(a). Further, the statute requires a funeral director apprentice to have an

apprentice sponsor who “(I) [i]s a licensed mortician or funeral director whose license is in good

standing with the Board; and (II) [i]s employed by the same funeral establishment that employs

the apprentice.” Id. § 7-306(b)(2); see also COMAR 10.29.09.03(A)(1) (“To meet the

apprenticeship requirements set forth in in Health Occupations Article, § 7-306, Annotated Code

of Maryland, an applicant for a mortician’s or funeral director’s license shall be . . . [e]mployed in

the same Maryland establishment as the applicant’s sponsor or the sponsor’s delegate[.]”

Defendants point the court to Manson v. Maryland State Bd. of Physicians for the

proposition that “the ADA and Rehabilitation Acts require a connection between the

accommodation of modification requested and the claimed disability.” No. 1:20-CV-03345-SAG,

2021 WL 2352285, at *5 (D. Md. June 9, 2021). As Judge Gallagher explained:

[T]he purpose of a reasonable accommodation under the ADA and

Rehabilitation Act is to accommodate the seeker’s disability and

allow him to equal access an institution’s services, programs, or

benefits that he might otherwise have difficulty accessing due to his

disability. See, e.g., Brown v. Dep’t of Pub. Safety & Corr. Servs.,

383 F. Supp. 3d 519, 556 (D. Md. 2019) (stating that

accommodations under ADA Title II are provided to ensure disabled

individuals equal access to various facets of prison life);

Constantine, 411 F.3d at 488 (“In the context of public higher

education, Title II requires state colleges and universities to make

reasonable accommodations for disabled students to ensure that they

are able to participate in the educational program.”). There must,

then, be some alleged link between the accommodation requested

and the disability claimed, since the accommodation is meant to

enable the disabled individual to overcome that disability to achieve

equal access in some way. The plain language of the statute

confirms that the accommodation (or modification) sought must be

related to the disability in question.

Id. at *4.

In Manson, the plaintiff was diagnosed with autism spectrum disorder, which he asserted

was a qualifying disability under the ADA and the Rehabilitation Act. Id. at *1. The plaintiff’s

application for a medical license had been denied by the defendant due to omissions on his

licensing application, unrelated to his disability; the denial was reported to a number of national

databases. Id. The plaintiff was unable to obtain employment due to the licensure denial report.

Id. As a result, he submitted a request for reasonable accommodation under Title II of the ADA

to the defendant, explaining his autism diagnosis and requesting that the defendant void his

licensure denial reports “to allow [him] to be employed in teaching or law[.]” Id. The defendant

did not formally respond to the plaintiff’s request and he subsequently filed suit claiming, inter

alia, “that [d]efendant acted in violation of federal law when it failed to respond to [p]laintiff’s

accommodation request seeking to remove the report of his licensing denial from various

databases.” Id. at *3.

Ultimately, Manson’s ADA and Rehabilitation Act claims were dismissed because there

were “no allegations supporting the conclusion that removal of the reports from public databases

would accommodate [p]laintiff’s autism in any way, let alone a way that would facilitate his equal

access to Defendant’s programs, services, or benefits.” Manson, 2021 WL 2352285 at *4. The

court observed that the complaint relied upon a sole conclusory assertion that gainful employment

would help him manage his autism. Id. Although the court acknowledged that removal of the

licensure denial reports would aid the plaintiff’s efforts to secure employment, the court reasoned

that “the same would be true for any person with a history of licensing denial, whether that person

has a disabling medical condition or not.” Id. The court underscored the lack of connection

between the requested accommodation and the plaintiff’s disability by contrasting his claims “with

those in other cases where the link between the request and the disability is unmistakable.” Id.;

see Constantine, 411 F.3d at 499 (where the plaintiff requested additional exam time to

accommodate her severe migraines), Lamone, 813 F.3d 508 (where the plaintiff requested the

implementation of an online tool to allow disabled voters to mark their ballots electronically).

Similarly, here, Plaintiff’s Complaint fails to allege a connection between his disability and

the requested accommodation. As noted in Plaintiff’s physician’s note, functional limitations

related to Plaintiff’s depression include difficulty performing self-care activities, routine tasks, and

“difficulties with memory, attention and concentration[.]” (ECF No. 1-3 at p. 1.) There are no

allegations in Plaintiff’s Complaint (or supplements thereto) upon which a reasonable inference or

conclusion could be drawn that approval of his apprenticeship license would aid in management

of his depression, or otherwise ameliorate on same. As Defendants note, Plaintiff’s Complaint

merely asserts that due to his “SSDI disability status, he could not risk full-time employment

without losing housing and healthcare benefits.” (ECF No. 1 ¶ 10.) While understandable, seeking

an accommodation to maintain his benefits does not establish how the functional limitations of his

disability would be managed by approval of an apprenticeship license. Thus, Plaintiff fails to

allege a connection between his disability and the requested accommodation as required under

Title II of the ADA and the Rehabilitation Act.

Accordingly, Plaintiff’s claims for violation of Title II of the ADA and Section 504 of the

Rehabilitation Act (Counts I and II) against Defendants MDH, the Board, and Defendant Malone

in her official capacity will be dismissed.

2. Count III – State Law Claim

Count III of Plaintiff’s Complaint asserts that “Defendants denied Plaintiff equal access to

a professional license based on his disability[]” in violation of Maryland anti-discrimination law.

As noted by Defendants, the statute cited by Plaintiff pertains to access to public services for

individuals with limited English proficiency. (ECF No. 21-1 at p. 8.).

State Government section 10-1103 provides:

(a) Each State department, agency, or program listed or identified

under subsection (c) of this section shall:

(1) subject to subsection (b) of this section, develop a language

access plan;

(2) take reasonable steps to provide equal access to public

services for individuals with limited English proficiency who

need language assistance, including any oral, written, and sign

language services; and

(3) arrange for the translation of vital documents ordinarily

provided to the public into any language spoken by any limited

English proficient population that constitutes 3% of the

population within the geographic area served by a local office of

a State program.

MD. CODE ANN., STATE GOV’T § 10-1103(a).

Defendant argues that Count III of Plaintiff’s Complaint should be dismissed for failure to

state a claim because the “Complaint does not allege that [Plaintiff] has limited English proficiency

or that he was discriminated on that basis.” (ECF No. 21-1 at p. 8.) Again, Plaintiff failed to

respond to Defendant’s argument on this issue and thus concedes the point. Even so, the court

agrees that Plaintiff’s Complaint contains no factual allegations that Plaintiff has limited English

proficiency, that he was discriminated against on that basis, or that Defendants failed to comply

with the above statute.

Thus, Count III of Plaintiff’s Complaint will be dismissed for failure to state a claim.

IV. CONCLUSION

For the reasons set forth herein, by separate order, the Motion (ECF No. 21) shall be

granted; and Plaintiff’s Motion for Equitable Tolling of Filing Deadline (ECF No. 7) shall be

denied as moot.4,5

/S/

February 11, 2026 ______________________

Julie R. Rubin

United States District Judge

4 As the Complaint will be dismissed on the grounds discussed above, the court declines to address Defendants’

argument regarding service of process.

5 Defendants seek dismissal with prejudice. The court declines to dismiss this action with prejudice. See Adbul-Mumit

v. Alexandria Hyundai, LLC, 896 F.3d 278, 292 (4th Cir. 2018) (stating that “the nature of dismissal” is left to “the

sound discretion of the district court”).