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Jenkins v. Kurtinitis

United States District Court, D. Maryland

March 20, 2015

SANDRA KURTINITIS, et al., Defendants.



Plaintiff Brandon Jenkins, who unsuccessfully sought admission to the Radiation Therapy Program at the Community College of Baltimore County ("CCBC"), filed suit against four CCBC employees, in their official and individual capacities, pursuant to 42 U.S.C. § 1983. He alleges violations of the Free Speech Clause ("Count I") and the Establishment Clause ("Count II") of the First Amendment to the United States Constitution, as well as a violation of Article 36 of the Maryland Declaration of Rights (Religious Freedom) ("Count III"). ECF 1.

According to Jenkins, defendant Adrienne Dougherty, Program Director and Coordinator of the Radiation Therapy Program ("RTP") at CCBC, id. ¶ 11, violated his rights when she denied him admission to the RTP "on the basis of his expression of religious beliefs and viewpoint" in his admission interview. Id. ¶¶ 24-27, 60. Jenkins also alleges that defendant Sandra Kurtinitis, President of CCBC, id. ¶ 8, and defendants Mark McColloch and Richard Lilley, Vice-Presidents at CCBC, id. ¶¶ 9-10, violated his rights by "endorsing and approving" Dougherty's decision. Id. ¶ 61. Jenkins supplemented his Complaint with four exhibits: an email chain between Jenkins and Dougherty (ECF 9, "Dougherty Chain"); an email chain between Jenkins and Miriam Milsom, another CCBC official (ECF 9-1, "Milsom Chain"); a demand letter from Jenkins's counsel to Kurtinitis and Dougherty, outlining Jenkins's concerns (ECF 9-3, "Demand Letter"); and CCBC's response, through counsel (ECF 9-2, "CCBC Response").

Now pending is defendants' Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) (ECF 23, "Motion"), supported by a memorandum of law. ECF 23-1 ("Memo").[1] Defendants argue that many of Jenkins's claims for relief against defendants in their official capacities are barred by the Eleventh Amendment; that plaintiff fails to allege facts sufficient to push any of his claims from possible to plausible; and that, as to Count III, plaintiff failed to "satisfy conditions precedent" under the Local Government Tort Claims Act ("LGTCA"), Md. Code (2013 Repl. Vol.), § 5-304(a) of the Courts & Judicial Proceeding Article ("C.J."). Plaintiff opposes the Motion (ECF 26, "Opposition"), [2] and defendants have replied. ECF 27 ("Reply").

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will limit the relief available to plaintiff against defendants in their official capacities, as required by the Eleventh Amendment. I will grant the Motion, in part, and deny it, in part.

I. Factual Background

Jenkins alleges that in January 2013 he applied for admission to CCBC's Radiation Therapy Program for the Fall 2013 semester. ECF 1 ¶ 15. It appears from the Complaint that Jenkins was already a student at CCBC when he applied to the RTP. See id. ¶ 18 (indicating grades in prerequisite courses without specifying awarding institution). According to Jenkins, CCBC's catalogue describes the program as follows: "Radiation Therapy utilizes radiation and radioactive isotopes in the treatment of disease, primarily cancer. [A] Radiation Therapist provides services for treatment of malignant and non-malignant disease. [A] Radiation Therapist is responsible for localizing the tumor, implementing the treatment plan, observing and evaluating clinical progress of the patient.'" Id. ¶ 17 (alterations in Complaint) (quoting catalogue).[3]

According to Jenkins, "CCBC's admission policy" to the RTP is "based on a three-part point system with the following weighted areas: (1) Prerequisite GPA - 30%; (2) Interview & Observation Day - 40%; and (3) Writing Sample and Critical Thinking Exam - 30%." Id. ¶ 20. As to the first weighted area, Jenkins alleges his GPA exceeded the prerequisite GPA. CCBC's catalogue states that the "academic credentials of the most competitive candidates for CCBC's [RTP] include a minimum of 2.5 overall GPA and completion of select courses (including BIOL 109 or BIOL 220 & BIOL 221, MATH 135, PHYS 101 and RTTT 101) with a grade of C' or above." Id. ¶ 16. When Jenkins applied, he "had completed each of the required courses and had obtained the following grade in each course: "B" in BIOL 109, "A" in MATH 135, "C" in PHYS 101, and "A" in RTTT." Id. ¶ 18. And, he had an overall GPA of 3.2. Id. As to the second weighted area, Jenkins alleges that he "scored the maximum points allowed during his observation." Id. ¶¶ 1, 29. As to the third weighted area, Jenkins states he completed a "writing sample and critical thinking exam on or about March 21, 2013, " and was "invited to interview with program officials to compete for a spot...." Id. ¶ 21. Jenkins believes that his application for admission was denied because of comments he made during his admission interview, discussed, infra.

CCBC has a "Nondiscrimination and Equal Opportunity Policy, " "published on CCBC's website, " that Jenkins reproduces in his Complaint as follows, id. ¶ 14 (emphasis in ECF 1):

Nondiscrimination and Equal Opportunity
The Community College of Baltimore County does not discriminate against any individual for reason of race, sex, color, religion, national or ethnic origin, age, sexual orientation or conditions of handicap in the admission and treatment of students, educational programs and activities, scholarship and loan programs, hiring of faculty and staff, or any terms and conditions of employment. CCBC recognizes the value of a diverse work force that is reflective of the students and of the community we serve, and as such, the college is committed to welcoming, respecting and embracing the differences and similarities of our employees and our students.
We acknowledge the richness of multiculturalism and diversity. We hold each member of the college community responsible and accountable for fostering a climate of acceptance, inclusion, respect and dignity of all persons.
Jenkins interviewed for admission to the RTP sometime between March 21, 2013, and April 19, 2013, see id. ¶¶ 21, 28, with "a panel of five representatives of CCBC, which included Defendant Dougherty...." Id. ¶ 23. Jenkins alleges that Dougherty "is responsible for overseeing and coordinating the processing of applications for the [RTP], academic advising, testing, and evaluation, and admissions to the program." Id. ¶ 11. Jenkins does not identify the other panelists or their roles. Nor does it appear that the three other defendants attended Jenkins's interview.

Jenkins recounts the details of his interview as follows, ECF 1:

23. Mr. Jenkins recalls that during the interview, he was asked what led him to pursue a career in radiation therapy, to which Mr. Jenkins responded that he first considered pursuit of a degree in the medical field following the suggestion of a friend and mentor that his skills made him an ideal candidate for nursing or a similar profession in the medical field.
24. At the time Mr. Jenkins applied..., Mr. Jenkins served as the Director of Harvest House, Inc., a faith-based home for men working to overcome life-controlling problems, whose purpose is to help residents achieve spiritual, emotional, mental, and physical well-being through counseling, mentoring, job and financial training programs, and the development of supportive networks designed to help men set and reach goals, and overcome generational cycles of poverty, lack of education and unemployment.
25. Mr. Jenkins communicated to the panelists that two of his greatest strengths include that he is a "people person" and a "team player."
26. Also during the interview, the panelists asked Mr. Jenkins the broad question, "What is the most important thing to you?" Mr. Jenkins simply answered, "My God."
27. The panel did not follow up with further questions regarding Mr. Jenkins religious beliefs....

In his Opposition, plaintiff also states that he "indicated during the admissions process that one of the reasons he was pursuing a career in radiation therapy was that God led him to it.'" ECF 26 at 15 (quoting CCBC Response, ECF 9-2 at 4); see also ECF 26 at 22.[4]

On April 19, 2013, Jenkins received notice that he had not been selected for the RTP. Id. ¶ 28. Two days later, on April 21, 2013, Jenkins emailed Dougherty "requesting the reason(s) [he] was not chosen" for the RTP. Id. ¶ 30 (quoting Dougherty Chain, ECF 9 at 2) (alterations in Complaint). Forty-five minutes later, Dougherty "identified two areas in which Mr. Jenkins scored lower than other candidates: (1) his GPA and (2) his interview." ECF 1 ¶ 33. Dougherty stated that "there were other students who had higher GPA scores, which [accounts for] 30% of the evaluation process.'" Id. ¶ 34 (quoting Dougherty Chain, ECF 9 at 1) (alterations in Complaint). As to the interview, Dougherty said the following, id. ¶ 35 (quoting same):

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

Dougherty's email also stated that "the other reason [for lost points]'" was Jenkins's "desire to stay in Maryland, '" given his prior criminal conviction. Id. ¶ 36 (quoting Dougherty Chain).

Jenkins alleges that "[e]arly in the admissions process, " he had "specifically inquired of Defendant Dougherty whether a single criminal charge he received more than ten (10) years ago would interfere with his ability to obtain a job following completion of" the RTP. ECF 1 ¶ 41. He claims that Dougherty told him another student "had successfully obtained a job in Washington, D.C., despite his criminal record, " id. ¶ 42, and "that any uncertainty regarding his ability to obtain a job in Maryland would not be a reason not to accept him into the program." Id. ¶ 43 (emphasis in Complaint). He also notes that "neither these areas of his past nor Mr. Jenkins's willingness to work outside the State of Maryland following completion of the [RTP] were raised in his admissions interview." Id. ¶ 38.

Nonetheless, in Dougherty's email to Jenkins setting forth the reasons she believed he was not selected for the program, Dougherty explained that she "didn't want'" Jenkins "to waste 2 years pursuing a career'" he "won't be able to work in.'" Id. She explained that she "had seen it in the past, '" and that although "jobs are opening in the near future, it is primarily through employers in Maryland and it is highly likely these insitiutions [sic] will not hire you based on your past.'" Id. (alterations in Complaint).

In the same email, Dougherty did offer "to put [Jenkins] in contact with a director of another department program that might be more suitable for him than the Radiation Therapy Program." Id. ¶ 44. Specifically, she stated, Dougherty Chain, ECF 9 at 1:

I don't know if you are interested, but our mental health program at CCBC offers a degree and certificate... programs. Based on your background, current working environment, and your recommendation letters, you would be a great candidate. I could put you in contact with the director of that program, she is doing... things with it.[5]
Jenkins forwarded Dougherty's email to Miriam Milsom, "Executive Director of CCBC Human Resources, " on April 30, 2013. ECF 1 ¶ 45; see also Milsom Chain, ECF 9-1. He told Milsom that he was "not admitted in part for [his] religion" and stated that he was "not sure what to do seeing that, from what [Dougherty] said in the email, there is no way for [him] to get in now." ECF 9-1 at 2. He asked Milsom to "look into the email" and to tell him what she thought of it. Id. He also informed her that he was in touch with attorneys at "ACLJ" and that one of them suggested that he "contact someone about the appeals process" while he awaited a response from ACLJ. Id.

Further, Jenkins alleges that, "[u]pon information and belief, " Jenkins's email to Milsom "was forwarded to the Vice President of Student Services, Defendant Richard Lilley." Id. ¶ 46. According to Jenkins, he "never received any response from Defendant Lilley." Id. ¶ 47. The Complaint does not include any other factual allegations supporting Lilley's alleged liability.

Milsom responded to his email of April 30, 2013, by "explain[ing] that she had discussed his complaint with Vice President of Instruction, Mark McColloch, and that religion was not a factor in any decision regarding your course of study at CCBC.'" Id. ¶ 48 (quoting Milsom Chain, ECF 9-1 at 1). The Complaint does not include any other factual allegations supporting McColloch's alleged liability.

On June 28, 2013, Jenkins, through counsel, "and in accordance with Maryland's Local Government Tort Claims Act, " sent a letter to Kurtinitis, CCBC President, and Dougherty that "recited the facts regarding the conduct by CCBC and its employees during the admissions and interview process, and informed them that such conduct violated the First Amendment and CCBC's nondiscrimination policy." Id. ¶ 49; see also Demand Letter, ECF 9-3.

CCBC, through counsel, responded to Jenkins's letter on July 18, 2013, and, "fully supporting Defendant Dougherty's decision and explanation, denied any wrongdoing and offered additional discriminatory explanation for CCBC's decision not to admit Mr. Jenkins" to the RTP. Id. ¶ 50 (citing CCBC Response, ECF 9-2). In his Complaint, Jenkins points to certain "discriminatory" excerpts from CCBC's Response, such as statements that Dougherty's advice to "leave your thoughts and beliefs out of the interview process'" was "stated bluntly... not bad advice, '" and that "Defendant Dougherty was simply suggesting that Mr. Jenkins not wear [his religious views] on his sleeve.'" Id. ¶ 51 (quoting CCBC Response, ECF 9-2 at 5) (alterations in Complaint). He adds: "CCBC concluded its letter by stating that while Dr. Dougherty's words may have been inartfully stated, ' they were justified because the fact is that in any secular job or program interview it is better to have a concrete reason for wanting to undertake the training at hand than to say only that God directed one to do it. That is true for every job from astronaut to attorney.'" Id. ¶ 53 (quoting CCBC Response, ECF 9-2 at 6).

Jenkins asserts that, as "a result of CCBC's discrimination and retaliation against [him] for his expression of his religious beliefs, " he was "unable to receive the proper training and education required at CCBC for a career in radiation therapy;" that he "was deterred from submitting a new application for admission" to the RTP for the Fall 2014 semester; and that he "has suffered, and continues to suffer, economic injury and irreparable harm and is therefore entitled to an award of monetary damages, including punitive damages, and equitable relief." Id. ¶¶ 54-56.

Additional facts are included in the Discussion.

II. Standard of Review

Defendant's Motion is predicated on Fed.R.Civ.P. 12(b)(6). A defendant may test the sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted." Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). Rule 8 provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).

A plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, ___ U.S. ____, 135 S.Ct. 346, 346 (2014) (per curiam). But, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). To satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if... [the] actual proof of those facts is improbable and... recovery is very remote and unlikely." Twombly, 550 U.S. at 556. In other words, the complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Id. at 570; see Iqbal, 556 U.S. at 684; Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint, '" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert. denied, ___ U.S. ____, 132 S.Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 991 (2010). However, a complaint that provides no more than "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action, " is insufficient. Twombly, 550 U.S. at 555. Moreover, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe, 579 F.3d at 385-86.

A Rule 12(b)(6) motion will be granted if the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679 (citation omitted). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert. denied, ___ U.S. ____, 132 S.Ct. 1960 (2012). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'" Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted).

Generally, a court's consideration of a Rule 12(b)(6) motion is confined to facts alleged in the operative pleading. So, a court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein." Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). However, a court may properly consider documents "attached or incorporated into the complaint, " as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir.2014) (quoting Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see also Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.2014). To be "integral, " a document must be one "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) (citation omitted) (emphasis in original).

A motion asserting failure to state a claim typically "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses, " Edwards, 178 F.3d at 243 (quotation marks omitted), unless such a defense can be resolved on the basis of the facts alleged in the complaint. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). "This principle only applies, however, if all facts necessary to the affirmative defense clearly appear [ ] on the face of the complaint, '" or in other documents that are proper subjects of consideration under Rule 12(b)(6). Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis in Goodman ).

III. Discussion

A. Official Capacity Claims

Plaintiff has sued each of the defendants in both his or her personal and official capacities. E.g. ECF 1 at 1. As the Supreme Court explained in Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)) (citations omitted): "Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.'" See also, e.g., Huggins v. Prince George's Cnty., 683 F.3d 525, 532 (4th Cir. 2012) (treating suit against individuals in official capacity as suit against County). Thus, official capacity claims are subject to the same immunities the employing entity itself enjoys, such as sovereign immunity under the Eleventh Amendment. Graham, 473 U.S. at 167; accord Hafer v. Melo, 502 U.S. 21, 25 (1991).

Defendants argue that CCBC is an agency of the State of Maryland and therefore plaintiff's claims are barred by the Eleventh Amendment. They assert that all of plaintiff's claims against them in their official capacities-"to the extent that they seek monetary damages"-must be dismissed because defendants, as State officials, are entitled to sovereign immunity in federal court, and have never waived that protection. ECF 23-1 at 24.

In his Opposition, plaintiff is critical of defendants' arguments on this point. But, in the end, plaintiff appears to agree with them. In his Opposition, plaintiff states, inter alia, ECF 26 at 30 (emphasis added): "[W]hile CCBC is considered an arm of the state' entitled to Eleventh Amendment immunity, CCBC officials are not entitled to the same protection when sued in their official capacity for prospective relief. "

The Eleventh Amendment provides: "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." The Eleventh Amendment did not create sovereign immunity; rather, it preserved the sovereign immunity that the states enjoyed prior to the formation of the Union. See Alden v. Me., 527 U.S. 706, 724 (1999); see also Sossamon v. Tex., ___ U.S. ____, 131 S.Ct. 1651, 1657-58 (2011). For this reason, states enjoy sovereign immunity from private suits brought by their own citizens.

Sovereign immunity precludes a private individual from suing an unconsenting state or an instrumentality of a state (also referred to as an "arm of the state") in federal court, absent waiver or a valid Congressional abrogation of sovereign immunity. See Coleman v. Ct. of Appeals of Md., ___ U.S. ____, 132 S.Ct. 1327, 1333 (2012) ("A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense."); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54-55 (1996) ("For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States was not contemplated by the Constitution when establishing the judicial power of the United States.") (internal quotation marks and citation omitted)); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (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."); see also Bland v. Roberts, 730 F.3d 368, 389 (4th Cir. 2013). The preeminent purpose of state sovereign immunity is to accord states the dignity that is consistent with their status as sovereign entities. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).

However, the doctrine of Ex parte Young, 209 U.S. 123 (1908), creates an exception to the bar of sovereign immunity, applicable in suits for declaratory and injunctive relief against individual state officers in order to prevent ongoing violations of federal law. See generally Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002); Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Edelman v. Jordan, 415 U.S. 651, 662-65 (1974) (holding that although the Eleventh Amendment permits "prospective relief, " it does not permit a "monetary award"); McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). Of course, the individual whose conduct is at issue must also qualify as an arm of the state. Bland, 730 F.3d at 390. "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon, 535 U.S. at 645 (internal quotation marks omitted).

A state may waive its sovereign immunity. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999). But, there is no contention here of waiver.

It is clear that CCBC is an arm of the State. See Adams v. Montgomery Coll., DKC-09-02278, 2010 WL 2813346, at *4 (D. Md. July 15, 2010) (holding Montgomery County Community College "is a state entity for the purpose of sovereign immunity" under Eleventh Amendment). In Williams v. Board of Trustees of Frederick Community College, CCB-03-02123, 2004 WL 45517, at *4 (D. Md. Jan. 8, 2004), Judge Blake observed:

[A]ll the individual defendants are immune from liability for damages in their official capacities. Because a Maryland community college and its board of trustees are state agencies, see Samuels v. Tschechtelin, 135 Md.App. 483, 763 A.2d 209, 230 (Md. Ct. Spec. App. 2000), the Eleventh Amendment precludes an unconsented federal court suit seeking damages or other retrospective remedies against [State] officials. See, e.g., Lewis v. Bd. of Educ. of Talbot County, 262 F.Supp.2d 608, 612 (D. Md. 2003); Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). The only remedy that this court has jurisdiction to impose on these officers in their official capacity is an injunction, if proved appropriate, barring future violations of federal law.

Thus, there is no conflict between defendants' contention that the "claims against the Defendants in their official capacities, to the extent that they seek monetary damages, are barred by the Eleventh Amendment, " Memo, ECF 23-1 at 24, and plaintiff's argument that his "official capacity claims against Defendants are proper and unequivocally actionable, " to the extent they seek "prospective relief." Opposition, ECF 26 at 30. These arguments are two sides of the same coin. However, in his prayer for relief, plaintiff seeks, in relevant part, "judgment against Defendants, and... the following relief:... (C) Monetary damages (including punitive damages for Defendants' actions in their individual capacities) in an amount to be determined by the jury;...." ECF 1 at 17. To the extent that plaintiff seeks a monetary award with respect to his claims against defendants in their official capacities, those claims must be dismissed because such claims are barred by the Eleventh Amendment. See Edelman, 415 U.S. at 663-64; Hutto v. S. Carolina Ret. Sys., 773 F.3d 536, 549 (4th Cir. 2014) (citations omitted) ("State officials sued in their official capacities for retrospective money damages have the same sovereign immunity accorded to the State. Therefore, as did the district court, we hold that the plaintiffs' claim against the state officials for the return of their contributions is barred by the Eleventh Amendment.").

Nevertheless, defendants argue that plaintiff's federal claims against them in their official capacities must be dismissed in their entirety, pursuant to 42 U.S.C. § 1983. According to defendants, dismissal is warranted because they are not "persons" within the meaning of § 1983.

Section 1983 provides a cause of action in federal courts for violation of federal rights by State actors. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Baker v. McCollan, 443 U.S. 137, 140 (1979). To state a claim under § 1983, a plaintiff must: 1) "allege the violation of a right secured by the Constitution and laws of the United States"; and 2) "show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir.), cert. denied, ___ U.S. ____, 132 S.Ct. 112 (2011). Citing Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), defendants argue that "[n]either states nor state officials are persons' within the meaning of Section 1983." ECF 23-1 at 25.

Defendants have accurately quoted Will, 491 U.S. at 71. However, as plaintiff correctly points out, ECF 26 at 23-24, Will also states, in a footnote on the same page: "Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official capacity actions for prospective relief are not treated as actions against the State.'" Id. at 71 n.10 (quoting Graham, 473 U.S. at 167 n.14). Accordingly, defendants in their official capacities are "persons" within the meaning of § 1983 with respect to plaintiff's request for prospective relief.

Curiously, defendants have not asked for dismissal of the State claim (Count III) against defendants in their official capacities. Nevertheless, Count III must be dismissed against all defendants in their official capacities, as barred by the Eleventh Amendment. The Fourth Circuit has said: "[B]ecause of its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte. '" McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014) (quoting Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997)). The Supreme Court has made clear that the Eleventh Amendment entitles state officials sued in their official capacity to immunity from suit in federal court for alleged violations of state law. Pennhurst, 465 U.S. at 106, 111 n.21 ("A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law.... We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law."); accord, e.g., Equity In Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 107 (4th Cir. 2011). Accordingly, Count III must also be dismissed as against all defendants in their official capacities.

In sum, plaintiff's federal claims against defendants in their official capacities, to the extent they seek monetary damages or a monetary award, are dismissed, with prejudice. But, plaintiff may seek prospective relief for his federal claims from defendants in their official capacities. And, plaintiff's State-law claim (Count III) will be dismissed as against all defendants in their official capacities, with prejudice.

B. First Amendment Claims

With regard to Count I, defendants assert that the "lack of facts available to Mr. Jenkins makes it impossible to determine what type of Free Speech claim he is asserting." ECF 23-1 at 16. Defendants then argue that Jenkins's Complaint fails to state a claim for "Free Speech Retaliation." Id. In his Opposition, plaintiff does not address defendants' claim of confusion, but argues that his Complaint states a claim for retaliation, ECF 26 at 12-21, i.e., that defendants retaliated against him "for his expression of speech that was protected by the First Amendment" by denying him admission to the RTP. Id. at 12-13.

In their Motion, defendants also argue that plaintiff's Complaint fails to state a claim for violation of the Free Exercise Clause. ECF 23-1 at 19. In his Opposition, plaintiff simply responds that he "did not bring a claim under the Free Exercise clause of the First Amendment, nor does he intend to do so at this time." ECF 26 at 22. But, in Jenkins's Complaint, he claims, under either the Free Speech Clause or the Establishment Clause, or both, that the Constitution does not permit an official at a public college to deny admission because of religious expression. See ECF 1 ¶ 60 ("Defendant Dougherty unlawfully deprived Plaintiff of his First Amendment rights in connection with and arising from his application for admission to CCBC's [RTP] by denying Plaintiff admission on the basis of his expression of his religious beliefs and viewpoint."); id. ¶ 35 (quoting Dougherty Chain, ECF 9 at 1) ("Defendant Dougherty then listed the reasons why Mr. Jenkins lost points during his interview, offering the following explanation: I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion'"). Put another way, Jenkins objects to what he claims are unwritten admissions criteria applied by Dougherty and approved by CCBC officials. Id. ; see also id. ¶¶ 62, 63, 65, 66.

As discussed, infra, in Free Speech Clause terms, such a claim is best understood as alleging that CCBC's admissions criteria violate the Clause because they are not content and viewpoint neutral. In Establishment Clause terms, such a claim is best understood as alleging that CCBC's admissions criteria violate the Clause because they impermissibly give preference to non-religion over religion by expressing disapproval of religion in general, or, in other words, that they are not neutral as between religion and non-religion.

Notably, Jenkins does not allege that CCBC denied his admission because of his particular religious beliefs, or because he belongs to any particular religion, faith, or non-faith community. Jenkins does not allege, for example, that defendants denied him admission because he believes in God.[6]

To be sure, a public college's denial of admission based on disapproval of an applicant's beliefs or affiliation with a particular faith community would be subject to strict scrutiny. Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (applying strict scrutiny to strike down under Free Exercise Clause law enacted to suppress particular religious practice); Larson v. Valente, 456 U.S. 228, 244 (1982) (applying strict scrutiny under Establishment Clause to strike down law that facially discriminated between sects). Indeed, such a decision may not survive even rational basis review under the Equal Protection Clause. See Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232, 238-47 (1957) (holding state Board lacked rational basis, under Due Process and Equal Protection Clauses, for denying plaintiff admission to bar exam and practice of law based on prior membership in Communist Party, labor activism, support of the Loyalists in the Spanish Civil War, use of aliases to hide Jewish heritage, and other evidence of supposed "bad moral character").

With this framework in mind, I will proceed to consider the allegations at hand, i.e., that defendants denied Jenkins admission to the RTP because of the statements he made in his admissions interview that were religious in nature.

1. Count I (Free Speech)

The Free Speech Clause of the First Amendment provides: "Congress shall make no law... abridging the freedom of speech...." U.S. Const. amend. I. The Free Speech Clause is made applicable to the States via the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652 (1925). "Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.'" ACLU of N. Carolina v. Tata, 742 F.3d 563, 565-66 (4th Cir. 2014) (quoting Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010)). Accordingly, governmental "[r]estrictions on speech based on its content are presumptively ...

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