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Keerikkattil v. Hrabowski

United States District Court, Fourth Circuit

September 23, 2013



WILLIAM M. NICKERSON, Senior District Judge.

Before the Court is Plaintiff's Motion for Preliminary Injunction, ECF No. 2, and a Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) filed by Defendants Freeman A. Hrabowski, Nancy L. Young, Jeffrey E. Cullen, Paul Dillon, William E. Kirwan (collectively referred to as the "UMBC Defendants") and the Board of Regents of the University System of Maryland. ECF No. 6. The motions have been fully briefed by the parties and are ripe for review. Also pending is Plaintiff's Motion to Strike Defendant Soutry De's Affirmative Defenses, ECF No. 18, to which no Opposition was filed. For the reasons that follow, the Court determines that no hearing is necessary, Local Rule 105.6, the motion to dismiss will be granted in part and denied in part, the motion for preliminary injunction will be denied, and the motion to strike will be granted.


On October 1, 2012, Defendant Soutry De, [1] who was at that time a student at the University of Maryland, Baltimore County ("UMBC"), filed a report with the University Police against Plaintiff, Ranjith Keerikkattil, alleging that he was stalking her. Specifically, De alleged that Plaintiff, who was her former co-worker, followed her home in April 2012, showed up to her home unannounced in June 2012, looked at her multiple times while in the Physics building, and, most recently, approached her in the library and said "Hello. How are you doing?" De was very upset, and stated that she felt uncomfortable and feared that she was being stalked. De petitioned for a peace order against Plaintiff with the District Court of Baltimore County that same day, and was granted an Interim Peace Order. Following a hearing on October 3, however, the peace order was dismissed.

Although Plaintiff was not enrolled in classes at UMBC at the time of De's report, he had been accepted into a UMBC graduate program in summer 2012. On October 2, the University Counsel at UMBC, Christopher Tkacik, sent Plaintiff a letter banning him from campus as a non-student under Md. Code Ann., Educ. § 26-102, as a result of De's report.

Pursuant to UMBC policy, Plaintiff filed a written request for a hearing and met with Mr. Tkacik, Defendant Deputy Chief of UMBC Police Paul Dillon, De, and De's mother on October 9. Plaintiff argued that, as a student at UMBC, he could not be banned from campus under § 26-102. Tkacik explained that the ban was appropriate because Plaintiff was not registered for classes, but that, upon registering for classes, Plaintiff's status would be changed from "non-student" to "student." At that point, De's allegations would be subject to review under the Student Judicial Program. Further, Tkacik noted the possibility that Plaintiff could be suspended after review.

When Plaintiff attempted to register for Spring 2013 classes shortly thereafter, he discovered that a judicial hold had been placed on his account. As a result of his change in status, De's allegations were reviewed by the Office of Student Judicial Programs ("SJP"), headed by Defendant Jeffrey E. Cullen. On November 1, Plaintiff received notification that, due to his alleged course of stalking behavior against De, he was charged with violating Rule 2 of the Code of Student Conduct. Rule 2 generally prohibits a student from engaging in behavior that jeopardizes the health or safety of others. Plaintiff alleges that the charges "were vague and ambiguous and contained no information regarding the date and time of the incidents that contributed to the alleged violations [of] Rule 2." Compl. ¶ 30.

At some point, De allegedly began to exhibit harassing behavior toward Plaintiff. Plaintiff sought and received a Peace Order against De in late November 2012. He alleges that, after informing UMBC that De was harassing him, no action was taken by the University. He wrote a letter to Cullen, copied to Defendants Hrabowski and Young, stating that he was worried that he was being unfairly discriminated against. In response to Plaintiff's concerns, Cullen allegedly told Plaintiff that "it is perfectly normal for Ms. De to be treated differently, " Id. at ¶ 36, and that she "is more believable since she is a woman." Id. at ¶ 31.

A Pre-Hearing Conference was held on November 5, which was attended by Plaintiff, Cullen, and Dillon. At the conference, Plaintiff denied all charges against him. Plaintiff alleges that, after he asked why the charges were being applied against him, Dillon began whispering the word "ban" to Cullen, and Plaintiff was asked to leave the room. Approximately thirty minutes later, Plaintiff states that he was asked to return to the room, received a one-sided "Order of No Contact with Soutry De, " and was banned, as a student, from UMBC pending an investigation of and hearing on De's allegations.

The UMBC Hearing Board met to adjudicate the allegations against Plaintiff on December 12, 2012. Immediately prior to the hearing, Plaintiff alleges that Cullen, Dillon, and De met in a closed room and, shortly thereafter, Plaintiff received an e-mail, "minutes before the Hearing started, " that De had been conferred "victim status" by Cullen[2] and that a witness, David Sweigart, would be testifying on De's behalf. Compl. ¶¶ 37, 40. After receiving the e-mail, Plaintiff allegedly requested that the hearing be rescheduled and that he wanted an attorney to be present. Cullen stated that the hearing would proceed regardless of his presence.

Cullen served as advisor at the hearing. Pursuant to UMBC's policies, Plaintiff was permitted to bring witnesses, make statements in his defense, and ask questions of the witnesses. Plaintiff alleges that Cullen interrupted him multiple times during the hearing, prevented effective crossexamination of the witnesses, provided his own definition of Rule 2 rather than providing the Hearing Board with a copy from the Student Handbook, and unilaterally determined the appropriate sanction. Additionally, he contends that Dillon testified that, although he originally sought a six-month suspension for Plaintiff, he instead wanted an indefinite suspension because Plaintiff had challenged his claims. The Hearing Board deliberated in private, and determined that there was sufficient evidence to find that Plaintiff engaged in a course of conduct toward De that would cause a reasonable person to feel threatened and fear for their immediate safety, and thus, Plaintiff was in violation of Rule 2. As a result, Plaintiff was suspended, effective December 14, 2012. Under the terms of his sanctions, Plaintiff may reapply for Spring 2014 classes, but no sooner. Additionally, Plaintiff is no longer an enrolled student; is banned from the UMBC campus until December 14, 2015, or until he regains student status, whichever is sooner; has a "Disciplinary Suspension" notation on his transcript; and must perform 100 hours of community restitution. Plaintiff appealed to the Appellate Board.

The Appellate Board, with Davonya L. Hall, Assistant Director of SJP as Conduct Officer, convened on January 11, 2013. The Appellate Board upheld the findings and sanctions of the Hearing Board, and found that the Hearing Board did not substantially depart from or deny rights or provisions in the Code of Student Conduct.

As a result of the proceedings and suspension, Plaintiff alleges that he has suffered mental anguish, severe emotional distress, injury to reputation, past and future economic loss, loss of educational opportunities, and loss of future career prospects. For example, he asserts that, in order to defend against De's allegations, he had to decline a job offer.

Proceeding pro se, Plaintiff filed suit against, both individually and in their official capacities, Freeman A. Hrabowski, President of UMBC; Nancy L. Young, Vice-President for Student Affairs at UMBC; Jeffrey E. Cullen, Director of the Office of Student Judicial Programs at UMBC; Paul Dillon, Deputy Chief of Police at UMBC; William E. Kirwan, Chancellor of the University System of Maryland on behalf of University of Maryland, Baltimore County; and the Board of Regents of the University System of Maryland. De is also a named defendant. Plaintiff asserts the following twelve counts: (1) violation of due process under 42 U.S.C. § 1983; (2) First Amendment retaliation under 42 U.S.C. § 1983; (3) breach of contract; (4) promissory estoppel; (5) negligence; (6) negligence per se; (7) gross negligence; (8) negligent training and supervision; (9) intentional infliction of emotional distress; (10) civil conspiracy and concert of action; (11) malicious use of civil process; and (12) defamation. Plaintiff seeks a preliminary and permanent injunction restraining enforcement of UMBC's sanctions, an order declaring that the Defendants violated his right to due process, the expungement of all University records relating to the disciplinary proceeding, an order requiring the University to update its records to reflect that the Plaintiff is in good standing without a disciplinary record, compensatory and punitive damages, and attorneys' fees.


The Board of Regents and UMBC Defendants have moved to dismiss all claims under Fed.R.Civ.P. 12(b)(1), for a lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon which relief can be granted. When, as here, a defendant makes a facial challenge to subject matter jurisdiction by contending that Plaintiff failed to allege facts upon which subject matter can be based by virtue of immunity, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982)). Therefore, "the facts alleged in the complaint are taken as true, " and, if the complaint alleges sufficient facts to invoke subject matter jurisdiction, the 12(b)(1) motion must be denied. Id.

Generally, in considering the sufficiency of a complaint to survive a 12(b)(6) motion to dismiss, the Court considers first whether the complaint contains "factual allegations in addition to legal conclusions." Robertson v. Sea Pines Real Estate Cos. , 679 F.3d 278, 288 (4th Cir. 2012). Specifically, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action, " without "further factual enhancement, " is not enough. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 557 (2007). Secondly, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). In order to state a plausible claim for relief, the 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." Robertson , 679 F.3d at 288 (quoting Twombly , 550 U.S. at 555).

A. § 1983 Claims (Counts I & II)

1. "Persons" Under § 1983

Defendants assert that Plaintiff's federal claims against the Board of Regents and the UMBC Defendants in their official capacities are barred because the Defendants are not "persons" capable of being sued within the meaning of 42 U.S.C. § 1983. Alternatively, Defendants claim that they are entitled to Eleventh Amendment immunity.

Section 1983 provides, in relevant part, that "[e]very person who, under color of any statute... 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...." (emphasis added). Thus, although individuals acting under color of law may be sued under § 1983, the statute does not provide "a federal forum for litigants who seek a remedy against a State, " or state officials acting in their official capacities, "for alleged deprivations of civil liberties." Will v. Michigan Dep't of State Police , 491 U.S. 58, 66, 71 (1989). Because "official-capacity actions for prospective relief are not treated as actions against the State, " a state official may be sued in his or her official capacity for prospective relief under § 1983. Id. at 71 n.10 (quoting Kentucky v. Graham , 473 U.S. 159, 167 n.14 (1985)).

Here, Plaintiff asserts claims under § 1983 against the Board of Regents, [3] in addition to the UMBC Defendants individually and in their official capacities. Defendants allege that, because the Board of Regents is a unit of state government, it cannot be sued under § 1983, a claim which Plaintiff does not appear to dispute. The Court finds that, because the Board is the governing body of the University System of Maryland, Md. Code Ann., Educ. § 12-102(b), with members appointed by the Governor and confirmed by the Senate, id. at (e), it is "an instrumentality of the State" and an "independent unit of State government." See id. at (a)(3)-(4). It is not, therefore, a "person" within the meaning of § 1983, nor are its officials, and cannot be sued under that provision.

To the extent that Plaintiff seeks prospective relief against the UMBC Defendants in their official capacities, however, neither § 1983 nor the Eleventh Amendment bars his suit. See, e.g., Cobb v. Rector & Visitors of Univ. of Va. , 69 F.Supp.2d 815, 824 (W.D. Va. 1999) (noting that federal courts are generally empowered to "enjoin state officials to conform their future conduct to the requirements of federal law") (quoting Quern v. Jordan , 440 U.S. 332, 337 (1979))). Thus, the motion to dismiss is granted for Counts I and II in their entirety as to the ...

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