United States District Court, D. Maryland
August 3, 2015
HAROLD HAMILTON HODGE, JR., et al.
COLLEGE OF SOUTHERN MARYLAND, et al
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Hamilton Hodge, Jr., Plaintiff, Pro se, Prince Frederick, MD.
Nicole Hodge, Plaintiff, Pro se, Prince Frederick, MD.
College of Southern Maryland (CSM), Dr. Bradley M. Gottfried,
President of CSM, Sue Subocz, VP of Academics Affairs Math
Dept., Loretta McGrath, Richard B. Fleming, Jeffrey Potter,
Richard Welsh, Matthew Schatz, Ricardo " Doe" ,
Charlie " Doe" , CSM Computer Tech, Defendants:
Steven David Frenkil, LEAD ATTORNEY, Miles and Stockbridge
PC, Baltimore, MD.
Calvert County Local Government, official and unofficial
capacity, Charles County Local Government, Official and
Unofficial capacity, Defendants: John F Breads, Jr, Law
Office of John F Breads Jr, Hanover, MD.
State of Maryland, Official and Unofficial capacity,
Defendant: Elizabeth Lynn Adams, LEAD ATTORNEY, Office of the
Attorney General, Tort Litigation, Annapolis, MD.
K. CHASANOW, United States District Judge.
pending and ready for review in this civil rights case are
several motions to dismiss filed by Defendants College of
Southern Maryland and its affiliated Defendants, Calvert
County Local Government, Charles County Local Government, and
the State of Maryland. (ECF Nos. 15, 21, and 26). The
relevant issues have been briefed, and the court now rules,
no hearing being deemed necessary. Local Rule 105.6. For the
following reasons, the motions to dismiss filed by Defendants
will be granted.
Harold Hodge and Chante' Hodge, proceeding pro
se, filed this action on September 5, 2014 against
College of Southern Maryland (" CSM" ); Dr. Bradley
M. Gottfried, President of CSM; Sue Subocz, Vice President of
Academic Affairs in CSM's Math Department; Loretta
McGrath; Richard B. Fleming; Jeffrey Potter; Richard Welsh;
Matthew Schatz; Ricardo " Doe" ; Charlie "
Doe" ; Calvert County Local Government; Charles County
Local Government; and the State of Maryland. (ECF No. 1).
Along with their complaint Plaintiffs filed motions to
proceed in forma pauperis, which were granted. (ECF
Nos. 2, 5, and 6). The complaint asserts multiple civil
rights violations and other claims relating to events that
occurred between 2009 and 2013 while Plaintiffs were enrolled
as students at CSM. Plaintiffs seek $500,000 in compensatory
damages from each individual Defendant, and $3,500,000,000 in
exemplary damages for the injuries they purportedly suffered
as a result of incidents described below. (ECF No. ¶
crux of Plaintiffs' complaint is that Mr. Hodge received
a final grade of " D" when he had purportedly
earned a " C" in the entry-level math class that he
was enrolled in during the spring 2013 semester at CSM. Mr.
Hodge appealed his final grade seeking to have it changed to
a " C" but Plaintiffs allege that the Vice
President of CSM's Math Department, Sue Subocz, refused
to change his grade, stating that Mr. Hodge had miscalculated
his math grade and that his final grade of " D" was
correct. (ECF No. 1, at 6-7). Thereafter, Mr. Hodge submitted
multiple written complaints to various CSM administrators and
the President of CSM, Bradley Gottfried, demanding that his
grade be changed to a " C." These individuals
allegedly did not respond except for Ms. Subocz, who rejected
his complaint that his math grade was incorrect. Plaintiffs
assert that CSM and its administrators " racially
discriminat[ed] and maliciously depriv[ed]" him of his
final math score. ( Id. ¶ 38). When Mr.
Hodge's written complaints received no response,
Plaintiffs allegedly filed official " intent to
sue" notices with Defendants on September 19, 2013. (ECF
No. 1 ¶ 36). Plaintiffs allege that because Mr. Hodge
received a " D" in the math course, he was unable
to transfer to a four-year University as he had planned, and
Mrs. Hodge was required to delay her transfer to a four-year
university as well because she refused to transfer without
her husband. Plaintiffs allege that " in great
humiliation" Mr. Hodge enrolled in an entry-level math
course at Prince George's Community College ("
PGCC" ) in January 2014 even though he had already
passed the math course at CSM. Plaintiffs further allege that
this math class was harder than the course at CSM and
required Mr. Hodge to drive an hour to get to PGCC. Mr. Hodge
allegedly passed the course at PGCC with a " C"
grade, which enabled him to transfer to a four-year
university with Mrs. Hodge. Plaintiffs assert that they began
attending the University of the District of Columbia ("
UDC" ) starting in August 2014 to work towards earning
Bachelor of the Arts and Juris Doctor degrees. ( Id.
complaint references a number of other unrelated incidents
that occurred between 2009 and 2013 while Plaintiffs were
enrolled as students at CSM. These other incidents also serve
as a basis for the claims Plaintiffs assert. Only a relevant
sampling of the incidents will be discussed here. Plaintiffs
allege that in October 2009, CSM's librarian, Jeffrey
Potter, " maliciously" threw away Mr. Hodge's
math homework completion certification that was sitting on
the library printer even though he knew that it belonged to
Mr. Hodge. (ECF No. 1 ¶ ¶ 52-56). Mrs. Hodge, while
attending a CSM sponsored field trip to the " Black Wax
Museum" in Baltimore in October 2009, was "
left in Baltimore" and the bus driver had to turn the
bus around to go get her. ( Id. ¶ ¶
68-70). Mr. Hodge asserts that in January 2010 he checked his
grades online and noticed that CSM had added to his grade
report two classes from 1986 that Plaintiff never took, which
caused his grade point average (" GPA" ) to drop
from 3.5 to 1.7. Plaintiffs assert that CSM " falsely
added and intentionally meant to damage" Mr. Hodge by
adding these classes. (ECF No. 1 ¶ 63). Based on the
these incidents and others referenced in the complaint,
Plaintiffs assert that CSM was " a hostile and racially
discriminatory environment for both [of them,] but they
endured the environment because they had a right to be at
(CSM) which was receiving Federal and state funds" for
education. ( Id. ¶ 73).
complaint also cites several incidents in which CSM
professors limited the Hodges' self-expression in the
classroom. For example, Plaintiffs allege that in November
2010 CSM Professor Richard Welsh refused to let Mrs. Hodge
express her opinions in class, and when Mr. Hodge mentioned
that an African American woman was one of the first female
pilots, Professor Welsh accused Mr. Hodge of lying.
Plaintiffs assert that: " It was clearly understood that
defendant Wel[s]h had a problem of her being an African
American plane flyer. Moreover, at the end of the semester
the defendant Welsh sent the plaintiffs an email and said:
' I hope that you and she find appropriate forum[s]
for you to present your personal opinions.' (
Id. ¶ ¶ 66-67) (emphasis in original).
Plaintiffs also assert that in October 2013 they took a class
with CSM Professor Matthew Schatz. Plaintiffs assert that
Professor Schatz " maliciously skipped over the Civil
Rights section of the text book and would not even attempt to
teach on it" even though it was in the syllabus. (
Id. ¶ 78). Plaintiffs also assert that at some
point during a class discussion on welfare policy, Professor
Schatz indicated that he " wanted to keep race out of
the matter[.]" ( Id. ¶ 78). They further
allege that Professor Schatz " would allow
'white' students to express any view point they
wanted, but he told the Plaintiff Mrs. Hodge she could not
and indirectly [told]  Mr. Hodge [the same thing.] It got
so bad in the class [that] the 'white' students were
even trying to stop the plaintiff Mrs. Hodge from stressing
her view point[.]" ( Id. ¶ 78). Plaintiffs
assert that " this atmosphere was maliciously and
racially discriminatorily created by the (CSM) Welfare Policy
instructor." ( Id. ¶ 78).
complaint asserts ten purported causes of action arising from
these events: (1) violation of Plaintiffs' Fourteenth
Amendment rights to equal protection and due process; (2)
violation of the Equal Opportunity Act of 1995; (3) 42 U.S.C.
§ 1983; (4) race discrimination; (5) loss of consortium;
(6) intentional infliction of emotional distress; (7)
defamation-libel; (8) false light invasion of privacy; (9)
violation of the Family Educational Rights and Privacy Act of
1974; and (10) pain and suffering.
three separate motions, Defendants moved to dismiss the
complaint on various grounds pursuant to Federal Rule of
Civil Procedure 12(b)(6). (ECF Nos. 15, 21, and 26).
Plaintiffs filed an opposition (ECF No. 34), and Defendant
CSM replied (ECF No. 36).
Standard of Review
purpose of a motion to dismiss under Rule 12(b) (6) is to
test the sufficiency
of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A
complaint need only satisfy the standard of Rule 8(a), which
requires a " short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). " Rule 8(a)(2) still requires a
'showing,' rather than a blanket assertion, of
entitlement to relief." Bell A. Corp. v.
Twombly, 550 U.S. 544, 555 n.3, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). That showing must consist of more than
" a formulaic recitation of the elements of a cause of
action" or " naked assertion[s] devoid of further
factual enhancement." Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(internal citations omitted).
stage, all well-pleaded allegations in a complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and all
factual allegations must be construed in the light most
favorable to the plaintiff. See Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th
Cir. 1999) ( citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In
evaluating the complaint, unsupported legal allegations need
not be accepted. Revene v. Charles Cnty.
Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal
conclusions couched as factual allegations are insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual
allegations devoid of any reference to actual events.
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979).
while courts generally should hold pro se pleadings
" to less stringent standards than formal pleadings
drafted by lawyers," they may nonetheless dismiss
complaints that lack a cognizable legal theory or that fail
to allege sufficient facts under a cognizable legal theory.
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,
30 L.Ed.2d 652 (1972); Turner v. Kight, 192
F.Supp.2d 391, 398 (D.Md. 2002), aff'd, 121
F.App'x. 9 (4th Cir. 2005) (unpublished).
are no strangers to this court. They have filed numerous
civil lawsuits over the years in the United States District
Court for the District of Maryland, including: Hodge v.
Stephens, No. 12-cv-01988-AW, 2013 WL 398870 (D.Md. Jan.
31, 2013); Hodge v. Bd. of Cnty. Com'rs, No.
RWT-10-2396, 2010 WL 4068793 (D.Md. Oct. 15, 2010); Hodge
v. Calvert Cnty, No. PJM 09-2252, 2009 WL 2884928 (D.Md.
Sept. 4, 2009); Hodge v. St. Mary's Cnty.
Sheriff's Office, No. PJM 08-2522, 2009 WL 8708855
(D.Md. June 22, 2009); and Hodge v. Taylor Gas Co.,
No. DKC-05-319, 2005 WL 5501493 (D.Md. June 21, 2005).
current suit, although Plaintiffs' complaint almost
exclusively discusses their grievances with CSM, they have
also named several local county governments and the state of
Maryland as Defendants. All Defendants have moved to dismiss
under Rule 12(b)(6) for failure to state a claim. Because
Plaintiffs are proceeding in forma pauperis, the
court is also required to dismiss their case if it "
fails to state a claim on which relief may be granted."
28 U.S.C. § 1915(e)(2)(B)(ii).
The County Defendants' Motion to Dismiss
state only one allegation in their complaint pertaining to
Calvert County, Maryland and Charles County, Maryland local
governments (the " County Defendants" ). Plaintiffs
assert that County Defendants violated Plaintiff Harold
Hodge's Fourteenth Amendment rights by " turning a
blind eye to Mr. Hodge's complaints" regarding his
reported math class grade. (ECF No. 1 ¶ 88). Plaintiffs
assert a 42 U.S.C. § 1983 claim against the County
Defendants based on this single allegation. ( Id.
¶ 97). The County Defendants move to dismiss the
complaint arguing that the it does not state any viable
claims against them because it does not contain any factual
allegations showing that the County Defendants " played
any role in any of the events  or that any of the named
individual Defendants currently are or were at the time [of
the events in question] local government employees."
(ECF No. 15-1, at 2). In addition, the County Defendants
contend that the complaint fails to state a proper §
1983 claim based on the standard for municipal liability set
forth in Monell v. Department of Social Services of City
of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
the Monell standard, " a municipality can be
found liable under 42 U.S.C. § 1983 only where the
municipality itself causes the constitutional
violation at issue." City of Canton, Ohio v.
Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d
412 (1989) (emphasis in original). Municipalities are not
liable under respondeat superior principles for the
constitutional violations of their employees simply because
of the employment relationship. Monell, 436 U.S. at
692-94. " Liability arises only where the
constitutionally offensive acts of city employees are taken
in furtherance of some municipal 'policy or
custom.'" Milligan v. City of Newport News,
743 F.2d 227, 229 (4th Cir. 1984), citing
Monell, 436 U.S. at 694.
Plaintiffs have not alleged that an unconstitutional policy
or custom of the County Defendants resulted in
Plaintiffs' purported injuries. Indeed, the only
allegation pertaining to the County Defendants is the vague
statement that the County Defendants violated Plaintiffs'
rights by " turning a blind eye" to Mr. Hodge's
complaints over his math grade. Plaintiffs' vague
allegation is insufficient to state a plausible 42 U.S.C.
§ 1983 claim based on municipal liability, a violation
of Plaintiffs' Fourteenth Amendment rights, or any claim
for that matter, against the County Defendants.
State of Maryland's Motion to Dismiss
Plaintiffs' only allegation regarding the State of
Maryland is that it violated Plaintiff Harold Hodge's
Fourteenth Amendment rights by " turning a blind eye to
Mr. Hodge's complaints" regarding his allegedly
incorrectly reported math grade. (ECF No. 1 ¶ 88).
Plaintiffs assert a 42 U.S.C. § 1983 claim against the
State of Maryland based on this single allegation. (
Id. ¶ 97). The State of Maryland moves to
dismiss the complaint for failure to state a claim against it
because none of Plaintiffs allegations " relate to the
activities of the State of Maryland, nor any of its
employees." (ECF No. 26-1, at 3). In addition, the State
argues that Plaintiffs' claims are barred due to the
State's Eleventh Amendment immunity and sovereign
immunity. (ECF No. 26).
noted by the United States Court of Appeals for the Fourth
Circuit in Lee-Thomas v. Prince George's County
Public Schools, 666 F.3d 244, 248-49 (4th Cir. 2012):
Pursuant to the Eleventh Amendment, " [t]he 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."
U.S. Const. amend. XI. The Supreme Court " has drawn on
principles of sovereign immunity to construe the Amendment
to establish that an unconsenting State is immune from suits
brought in federal courts by her own citizens as well as by
citizens of another State." Port Auth. Trans--Hudson
Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109
L.Ed.2d 264 (1990) (internal quotation marks omitted). The
States' immunity also extends to " state agents and
state instrumentalities." Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137
L.Ed.2d 55 (1997). " The Eleventh Amendment bar to suit
is not absolute," however. Feeney, 495 U.S. at
304, 110 S.Ct. 1868. There are three exceptions to that
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) (internal quotation marks and alterations
omitted). . . . 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).
did not abrogate States' Eleventh Amendment immunity for
42 U.S.C. § 1983 claims. See Will v.
Michigan Dep't of State Police, 491 U.S. 58, 65-66,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (finding that a state
is not a person within the meaning of § 1983 and that
Eleventh Amendment bars § 1983 suits unless the state
has waived its immunity). The second exception is
inapplicable here because Plaintiffs are not seeking any
prospective injunctive relief, but instead only damages.
Finally, the State of Maryland has not waived its Eleventh
Amendment immunity in this case. Accordingly, the Eleventh
Amendment bars Plaintiffs from bringing this suit against the
State of Maryland.
College of Southern Maryland's Motion to Dismiss
the allegations in the complaint involve actions taken by
CSM's administrators, faculty, and other personnel.
Plaintiffs assert numerous federal and state claims against
the various CSM Defendants. CSM Defendants have moved
to dismiss Plaintiffs' claims on various grounds.
No Private Causes of Action
Defendants first argue that Plaintiffs' claims under the
Fourteenth Amendment, the Family Educational Rights and
Privacy Act of 1974 (" FERPA" ), the Equal
Opportunity Act of 1995, and Plaintiffs' claim for "
pain and suffering" should be dismissed because the
underlying amendment, statute, or state tort law does not
provide a private right of action for these claims. (ECF No.
21-1, at 18-19).
complaint asserts a direct right of action under the
Fourteenth Amendment against all Defendants for allegedly
violating Plaintiffs' due process and equal protection
rights. The only relief sought by Plaintiffs in the complaint
is compensatory and punitive damages. Plaintiffs' direct
right of action under the
Fourteenth Amendment will be dismissed because the Fourteenth
Amendment does not provide Plaintiffs with a private right of
action to seek damages against state or municipal officials;
rather, it provides a right of action for those seeking
injunctive relief. See Farmer v. Ramsay, 41
F.Supp.2d 587, 591 (D.Md. 1999) (" The Fourth Circuit
has explicitly rejected the argument that an implied cause of
action for damages exists under the Fourteenth
Amendment." ) ( citing Cale v.
Covington, 586 F.2d 311 (4th Cir. 1978)). Plaintiffs may
seek monetary damages for violations of their Fourteenth
Amendment rights through 42 U.S.C. § 1983, which they
have pled as their third cause of action.
also seek relief under FERPA, alleging that CSM Defendants
violated this Act because they failed to correct Mr.
Hodge's inaccurate math grade. FERPA also does not
provide a private right of action; rather, it " provides
for an aggregate action only: the withdrawal of public
institution funding for the impermissible release of student
records." Henry's Wrecker Service Co. of Fairfax
Cnty., Inc. v. Prince George's Cnty., 214 F.Supp.2d
541, 545 (D.Md. 2002).
addition, Plaintiffs seek relief under the Equal Opportunity
Act of 1995. CSM Defendants note that although this bill was
introduced on July 27, 1995 in the 104th Congress, it was
never enacted. Accordingly, it cannot provide a basis for the
relief Plaintiffs seek.
the complaint asserts a cause of action for " pain and
suffering." It appears from the complaint that
Plaintiffs included this " cause of action" merely
to describe their purported injuries and the damages they are
seeking. To the extent they are trying to state a separate
claim, no such cause of action exists. " Pain and
suffering" is a type of compensatory damages that
plaintiffs may recover for certain tort claims, but is not an
individual cause of action. See Joseph H. King, Jr.,
Pain and Suffering, Noneconomic Damages, and the Goals of
Tort Law, 57 SMU L.Rev. 163 (2004).
dismissal of the aforementioned claims, Plaintiffs'
remaining federal claims are violations of their Fourteenth
Amendment rights brought pursuant to 42 U.S.C. § 1983
and " race discrimination." Plaintiffs do not
specify under which statute they are bringing their race
discrimination claim, but given the facts in the complaint,
it will be construed as stating violations of Title VI of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981.
Statutes of Limitations
Defendants contend that many of Plaintiffs' claims are
time-barred by the applicable statutes of limitations. CSM
Defendants argue that Plaintiffs' federal claims are
subject to either a three or four-year limitations period,
and that Plaintiffs' state law claims are subject to a
three-year limitations period, aside from the defamation
claim, which has a one-year statute of limitations.
statute of limitations is an affirmative defense that should
only be employed to dismiss claims pursuant to Rule 12(b)(6)
when it is clear from the face of the complaint that the
claims are time-barred. Green v. Pro Football, Inc.,
31 F.Supp.3d 714, 721-22 (D.Md. 2014). Although 42 U.S.C.
§ 1983 does not contain a statute of limitations, courts
borrow the statute of limitations from Maryland
personal-injury suits, which have a three-year statute of
limitations period. Owens v. Baltimore City State's
Attorneys' Office, 767 F.3d 379, 388 (4th Cir.
2014). Similarly, Title VI does not have its own limitations
period and courts therefore borrow Maryland's three-year
Jersey Heights Neighborhood Ass'n v. Glendening,
174 F.3d 180, 187 (4th Cir. 1999). Section 1981 claims have a
four-year statute of limitations period if they arise under
the 1991 Amendment to the Act. Jones v. R.R. Donnelley &
Sons, Co., 541 U.S. 369, 382-84, 124 S.Ct. 1836, 158
L.Ed.2d 645 (2004). Here, Plaintiffs' allegations -- that
they were subject to race discrimination by CSM
administrators, faculty, and personnel -- arise under the
1991 Amendment to the Act, as this conduct would not have
been actionable under the pre-1991 version of § 1981
which covered " only conduct at the initial formation of
the contract and conduct which impairs the right to enforce
contract obligations through legal process."
See Howard v. Feliciano, No. 05-1928 (RLA),
2008 WL 3471295, *5-6 (D.P.R. Aug. 8, 2008) (finding that
plaintiffs allegations that their " minor child was
subjected to harassment by his math teacher because of his
race to the point where he was given a 'C' grade when
he deserved an 'A' grade" arose under the 1991
Amendment to § 1981). Finally, Plaintiffs' state law
claims are subject to Maryland's three-year statute of
limitations period for civil actions, Md. Code Ann., Cts. &
Jud. Proc. § 5-101, accept for Plaintiffs'
defamation claim which is subject to a one-year limitations
period, Md. Code Ann., Cts. & Jud. Proc. § 5-105. Given
these limitations periods and the dates of the incidents as
provided in the complaint, any events that occurred prior to
September 5, 2011 that underlie Plaintiffs' § 1983,
Title VI, and state law claims are time-barred, and any
events that occurred prior to September 5, 2010 that underlie
Plaintiffs' § 1981 claim are time-barred.
Specifically, the face of the complaint reveals that the
following incidents cited in support of Plaintiffs'
claims are time-barred: CSM's librarian throwing away Mr.
Hodge's printouts in October 2009; Mrs. Hodge being left
behind on a CSM-sponsored field trip in October 2009; and the
addition of two classes from 1986 to Mr. Hodge's grade
report in January 2010. By the same logic, the other
incidents referenced in the complaint, which are not
specifically referenced in the facts section above, are also
time-barred and cannot serve as a viable basis for
Local Government Tort Claims Act
Defendants also contend that any claims arising from
incidents that occurred after September 19, 2013 -- the date
on which Plaintiffs purportedly sent CSM Defendants a notice
of intent to sue letter -- should be dismissed because
Plaintiffs failed to comply with the Local Government Tort
Claims Act (" LGTCA" ), which required Plaintiffs
to provide notice to CSM within 180 days of these additional
claims. (ECF No. 21-1, at 23). Specifically,
CSM Defendants point to the purported incident that occurred
in October 2013 in Professor Matthew Schatz's class and
CSM's transmission of Mr. Hodge's transcript to PGCC
and UDC, and contend
that Plaintiffs have not alleged that they sent a notice of a
claim to CSM for any actions that took place after September
19, 2013. ( Id. ).
the LGTCA, " an action for unliquidated damages may not
be brought against a local government or its employees unless
the notice of the claim required by this section is given
within 180 days after the injury." Md. Code, Cts. & Jud.
Proc. § 5-304(b). The notice itself " shall be in
writing and shall state the time, place, and cause of the
injury." Md. Code, Cts. & Jud. Proc. § 5-304(b)(2).
Courts in this district have recognized that under the LGTCA,
" notice is a condition precedent to the right to
maintain an action for damages, and compliance with the
notice provision should be alleged in the complaint as a
substantive element of the cause of action." See,
e.g., Renn v. Bd. of Comm'rs of Charles
Cnty., 352 F.Supp.2d 599, 603 (D.Md. 2005).
although Plaintiffs allege that they sent intent to sue
notices to all Defendants on September 19, 2013, the
complaint does not allege that they complied with the
requirements of the LGTCA for any events following September
19, 2013. ( See ECF No. 1 ¶ 36). As
Plaintiffs' September 19 notification could not possibly
have given CSM notice of their purported injuries arising
from future events, Plaintiffs have failed plausibly to
allege compliance with the LGTCA for any claims arising from
events that occurred following September 19, 2013, which
includes Plaintiffs' allegations regarding any incidents
that occurred in October 2013 in Professor Matthew
Schatz's classroom and the transmissions of Mr.
Hodge's transcript to UDC and PGCC if it occurred after
September 19, 2013.
Failure to State Plausible Claims
dismissing the causes of action for which no private right of
action exists and excluding claims that are clearly
time-barred or for which Plaintiffs failed to comply with the
requirements of the LGTCA, only several claims remain. These
claims are based on the following incidents: Professor
Welsh's refusal to let Plaintiffs express themselves in
his welfare policy class in November 2010; Mr. Hodge's
receipt of the purportedly incorrect math grade in May 2013
and his dissatisfaction with the CSM's grade appeal
process; and UDC and PGCC viewing Mr. Hodge's purportedly
incorrectly grade on a transcript received from CSM.
42 U.S.C. § 1983 Claim Premised on Violations of
Plaintiffs' Fourteenth Amendment Rights
complaint asserts that Defendants violated Plaintiffs'
rights under 42 U.S.C. § 1983. (ECF No. 1 ¶ 97).
Although a claimant may use § 1983 as a vehicle for
asserting violations of rights secured by the Constitution or
other federal laws, it does not provide its own substantive
protections. See Chapman v. Houston Welfare
Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60
L.Ed.2d 508 (1979) (" [O]ne cannot go into court and
'claim a violation of § 1983' -- for § 1983
by itself does not protect anyone against anything." ).
The complaint also asserts that CSM Defendants violated
Plaintiffs' Fourteenth Amendment rights, a violation
which Plaintiffs may bring pursuant to § 1983.
1983 authorizes a suit for damages against any individual
" who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution." In order to
state a claim under Section 1983, a plaintiff must allege:
(1) a deprivation of a constitutional right or some right
secured by the laws of the United States, and (2) that the
deprivation was caused by a state actor. West v.
Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40
allege that Mr. Hodge was deprived of: " life, liberty,
and [the same] equal protection as 'white' students
 at the college when he was deprived of his proper final
letter grade in his math course." (ECF No. 1 ¶
¶ 87, 97). The complaint also asserts that Mr. Hodge was
deprived of " privileges and rights to an equal
education as white students." ( Id. at 99). The
complaint names CSM Defendants in their official and
unofficial capacities. ( Id. ¶ ¶ 1-2).
Defendants have moved to dismiss Plaintiffs' Fourteenth
Amendment claims brought pursuant to § 1983, arguing
that CSM is a state agency and its employees and
administrators are state actors subject to Eleventh Amendment
immunity for Plaintiffs' § 1983 claims against them
in their official capacities. In addition, CSM Defendants
contend that they are entitled to qualified immunity for
Plaintiffs' Fourteenth Amendment claims against them in
their individual capacities because Plaintiffs' have not
alleged facts showing that individual Defendants violated
clearly established constitutional rights of which a
reasonable person would have known. (ECF No. 21-1, at 27).
CSM Defendants further contend that Plaintiffs'
allegations do not state a plausible violation of Mr.
Hodge's procedural due process rights, as Mr. Hodge did
not have a property interest in earning a particular grade
and therefore could not have been deprived of due process
with respect to that alleged property interest, nor a
plausible violation of his substantive due process rights
because Plaintiffs have not alleged facts showing that
CSM's actions concerning Mr. Hodge's grade and the
appeals process departed so far from academic norms as to be
arbitrary and capricious. Defendants further argue that
Plaintiffs' allegations fail to state a plausible claim
for violation of the Equal Protection Clause because
Plaintiffs have not alleged any facts showing that similarly
situated people were treated more favorably than Mr. Hodge or
that CSM Defendants actions were in any way motivated by
discussing Eleventh Amendment immunity in Gray v.
Laws, 51 F.3d 426, 431 (4th Cir. 1995), the Fourth
Circuit commented that:
[Eleventh Amendment] immunity extends . . . to state agencies
and other government entities properly characterized as
" arm[s] of the State." Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct.
568, 572, 50 L.Ed.2d 471 (1977); see also Puerto
Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 147, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993)
(" [A] State and its 'arms' are, in effect,
immune from suit in federal court." ). Like the state
itself, state officers acting in their official capacity are
also entitled to Eleventh Amendment protection, because
" 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," and " [a]s
such, it is no different from a suit against the State
itself." Will v. Michigan Dep't of State
491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989)
recently noted by Judge Hollander in Jenkins v.
Kurtinitis, No. ELH-14-01346, 2015 WL 1285355, at *8-9
(D.Md. Mar. 20, 2015), Maryland community colleges are
treated as arms of the state. Id. ( citing
Adams v. Montgomery Coll., No. DKC-09-02278, 2010 WL
2813346, at *4 (D.Md. July 15, 2010); Williams v. Board
of Trustees of Frederick Community College,
CCB-03-02123, 2004 WL 45517, at *4 (D.Md. Jan. 8, 2004)).
Accordingly, Plaintiffs' § 1983 claims against CSM
and CSM Defendants in their official capacities seeking
monetary damages, are barred by the Eleventh Amendment.
immunity is an affirmative defense to Section 1983 claims and
" protects government officials 'from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.'"
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct.
808, 172 L.Ed.2d 565 (2009) ( quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)). Two inquiries must be satisfied to
determine whether an official is entitled to qualified
immunity: (1) whether, after viewing the facts in the light
most favorable to the party asserting the injury, there was a
deprivation of a constitutional right; and, if so, (2)
whether the right was clearly established at the time of the
deprivation such that a reasonable official would understand
that their conduct was unlawful. See Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001), overruled in part on other grounds in
Pearson, 555 U .S. at 236. Courts are "
permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in
the particular case at hand." Pearson, 555 U.S.
at 236. The burden is on the Plaintiff to prove that the
alleged conduct violated the law, while Defendant must prove
that the right was not clearly established. Henry v.
Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007). Finally,
the court should make a ruling on the qualified immunity
issue " early in the proceedings so that the costs and
expenses of trial are avoided where the defense is
dispositive." Saucier, 533 U.S. at 200.
taking the allegations in the complaint as true, Plaintiffs
have failed to establish a plausible violation of Mr.
Hodge's rights to due process and equal protection. As
noted by the Fourth Circuit in Sunrise Corp. of Myrtle
Beach v. City of Mrytle Beach, 420 F.3d 322, 328 (4th
To establish a violation of procedural due process,
plaintiffs must show that (1) they had property or a property
interest (2) of which the defendant deprived them (3) without
due process of law. Sylvia Dev. Corp. v. Calvert County,
Md., 48 F.3d 810, 826 (4th Cir. 1995). To establish a
violation of substantive due process, plaintiffs must "
demonstrate (1) that they had property or a property
interest; (2) that the state deprived them of this property
or property interest; and (3) that the state's action
falls so far beyond the outer limits of legitimate
governmental authority that no process could cure the
deficiency." Sylvia Dev. Corp., 48 F.3d at 827
( citing Love v. Pepersack, 47 F.3d 120,
122 (4th Cir. 1995)) (emphasis in original).
have not established that Mr. Hodge had a protected property
or liberty interest in receiving a " C" in his math
course. Moreover, Plaintiffs' conclusory assertion that
Mr. Hodge was deprived of life, liberty, and an equal
education to that
of his white peers is unsupported by any facts.
Equal Protection Clause of the Fourteenth Amendment provides
that " [n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. This clause " 'is
essentially a direction that all persons similarly situated
should be treated alike.'" Sansotta v. Town of
Nags Head, 724 F.3d 533, 542 (4th Cir. 2013) (
quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985)). " [T]o survive a motion to dismiss an equal
protection claim, a plaintiff must plead sufficient facts to
demonstrate plausibly that he was treated differently from
others who were similarly situated and that the unequal
treatment was the result of discriminatory animus."
Equality in Athletics v. Dep't of Educ., 639
F.3d 91, 108 (4th Cir. 2011) ( citing Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)).
than Plaintiffs' conclusory assertion that Mr. Hodge did
not receive an equal education to that of his white peers,
the complaint does not contain facts to support that Mr.
Hodge's similarly situated peers were treated more
favorably in the grading process or in the grading appeal
process. Plaintiffs' conclusory assertions are
insufficient to withstand a motion to dismiss because they do
not show a plausible violation of Mr. Hodge's rights to
due process or equal protection.
Race Discrimination Under Title VI and 42 U.S.C. §
complaint asserts a claim for " race
discrimination" based on the allegations that Mr.
Hodge's math professor racially discriminated against him
by depriving him of the " C" grade he had
purportedly earned in his math class. Plaintiffs allege that
" 'white' students at the College of Southern
Maryland were not deprived of their final math letter grades
as the plaintiff Mr. Hodge was whom is an African
American." (ECF No. 1 ¶ 103). Plaintiffs also
assert that Professor Welsh discriminated against them by
depriving them of the right to express their opinions in
class regarding why African Americans " lived in certain
conditions and why they committed crimes," and by
mocking Mr. Hodge and accusing him of lying when he made
statements about a famous African American pilot. (
Id. ¶ ¶ 107-08). The complaint also
asserts that CSM receives federal financial assistance. (
Id. ¶ 73). Defendants move to dismiss these
claims arguing that Plaintiffs have not alleged any facts
indicating that racial bias motivated CSM's denial of Mr.
Hodge's appeal of his grade, or motivated Professor
Welsh's decision in how to conduct his class.
Title VI, no person shall " be excluded from
participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance" because of the
person's race, color, or national origin. 42 U.S.C.
§ 2000d. To state a claim under Title VI, a plaintiff
must allege facts that show the defendant intentionally
discriminated against him on the basis of race, color, or
national origin, and that defendant receives federal
financial assistance. Alexander v. Sandoval, 532
U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). 42
U.S.C. § 1981 provides, in pertinent part, that "
[a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white
citizens [.]" 42 U.S.C. § 1981(a). The statute
broadly defines the term " make and enforce
contracts" as " the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges,
terms, and conditions of the contractual relationship."
42 U.S.C. § 1981(b). To state a claim under § 1981,
a plaintiff must establish " purposeful, racially
discriminatory actions that affect at least one of the
contractual aspects listed in § 1981(b)."
Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018
(4th Cir. 1999). Thus, both Title VI and § 1981 require
that plaintiffs plausibly allege intentional discrimination.
race discrimination claim will be dismissed because
Plaintiffs' complaint provides only conclusory assertions
devoid of factual support that Mr. Hodge's math grade and
CSM's denial of his grade appeal were motivated by racial
discrimination. Although Plaintiff believes based on his own
calculation that he should have received a " C"
grade in his math class, even if this assertion is true, his
allegations do not provide a plausible inference that his
math professor and CSM's administrators refused to
correct his grade because of racial animosity. Moreover,
Plaintiffs' allegations do not support that Professor
Welsh refused to let them express their views in his class
because of their race. Plaintiffs' allegation
that Professor Welsh sent them an email at the end of the
semester stating: " I hope that you and she find [an]
appropriate forum for you to present your personal
opinions" (ECF No. 1 ¶ 67), coupled with their
allegations that Professor Schatz and Plaintiffs' fellow
students sought to prevent Plaintiffs from expressing their
viewpoints in another class ( Id. ¶ 78),
provides an inference not of racial discrimination, but that
Plaintiffs' expression of their viewpoints was either
poorly timed or disruptive to the class. Taking all of
Plaintiffs' factual allegations as true and excluding
their speculative assertions that these actions were taken
because of their race, the allegations do not provide a
plausible inference that Plaintiffs were discriminated
against by CSM Defendants on the basis of race.
Loss of Consortium
loss of consortium claim is based on their allegations that
Mr. Hodge was deprived of time with his family as a result of
having to travel to PGCC to take a math class he had already
passed at CSM. (ECF No. 1 ¶ 112). In addition,
Plaintiffs allege that they were deprived of being able to
attend the same college for a period of six months. CSM
Defendants have moved to dismiss this claim arguing that the
complaint fails to allege the loss of a benefit of the
marital relationship or an underlying injury to either
A claim for loss of consortium arises from the loss of
society, affection, assistance, and conjugal fellowship
suffered by the marital unit as a result of the physical
injury to one spouse through the tortious conduct of a third
party." Oaks v. Connors, 339 Md. 24, 33-34, 660
A.2d 423 (1995). Plaintiffs' claim for loss of consortium
is deficient is many respects, but will be dismissed because
the complaint does not allege a physical injury to either
Intentional Infliction of Emotional Distress
allege that Defendants intentionally inflicted emotional
distress on them by " depriving them of their
education," depriving Mr. Hodge of his proper math
grade, and " not allowing them to express themselves in
the classrooms while attending CSM." (ECF No. 1 ¶
¶ 113-15). CSM Defendants contend that Plaintiffs'
have not alleged any requisite " extreme and
outrageous" conduct by them in order to establish a
noted by Judge Titus in Vance v. CHF Int'l., 914
F.Supp.2d 669, 682 (D.Md. 2012):
In order to succeed on an intentional infliction of emotional
distress claim, Plaintiffs must demonstrate (a) intentional
or reckless conduct that is (b) outrageous and extreme (c)
causally connected to (d) extreme emotional distress.
See Caldor, Inc. v. Bowden, 330 Md. 632,
641-42, 625 A.2d 959 (1993). Maryland courts " have made
it clear that liability for the tort of intentional
infliction of emotional distress should be imposed sparingly,
and its balm reserved for those wounds that are truly severe
and incapable of healing themselves." Id. at
642, 625 A.2d 959 (quotation omitted). " In order to
satisfy the element of extreme and outrageous conduct, the
conduct 'must be so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized society.'"
Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 525,
883 A.2d 1008 (2005) ( quoting Batson v.
Shiflett, 325 Md. 684, 733, 602 A.2d 1191 (1992)). The
emotional distress " must be so severe that 'no
reasonable man could be expected to endure it.'"
Id. ( quoting Harris v. Jones, 281
Md. 560, 571, 380 A.2d 611 (1977)). " One must be unable
to function; one must be unable to tend to necessary
matters." Id. (quotation omitted).
conduct of the CSM Defendants as alleged in the complaint is
far from extreme and outrageous. Even if CSM Defendants
intentionally gave Mr. Hodge a lower grade than he had
earned, or intentionally restricted Plaintiffs' ability
to express themselves fully in the classroom it would not
exceed " all bounds of decency." Moreover,
Plaintiffs have not alleged facts showing that the emotional
distress they suffered as a result of this conduct rendered
Defamation and False Light Invasion of
assert a " defamation-libel" claim based on their
allegation that the CSM Defendants wrote Mr. Hodge's
" false" math grade on his transcript, which was in
turn seen by UDC and PGCC and which purportedly reflected
poorly on his character. (ECF No. 1 ¶ 117). CSM
Defendants move to dismiss this claim on several grounds, the
first being that Plaintiffs' conclusory allegations fail
to state a plausible defamation claim.
is a branch of the tort of defamation, which covers acts of
written defamation. Russell v. Railey, No. DKC
08-2468, 2012 WL 1190972, at *3 (D.Md. April 9, 2012). To
state a claim for defamation in Maryland, a plaintiff must
plead the following four elements: " (1) that the
defendant made a defamatory statement to a third person, (2)
that the statement was false, (3) that the defendant was
legally at fault in making the statement, and (4) that the
plaintiff thereby suffered harm." Offen v.
Brenner, 402 Md. 191, 198, 935 A.2d 719 (2007). " A
defamatory statement is one which tends to expose a person to
public scorn, hatred, contempt or ridicule, thereby
discouraging others in the community from having a good
opinion of, or associating with, that person."
Offen, 402 Md. at 198-99 (internal quotations
Plaintiffs' allegations do not state a plausible claim
for defamation. First, Plaintiffs fail plausibly to allege
how the receipt of a grade on a transcript can be defamatory,
as it is unlikely that any grade would engender hate or
ridicule from the community especially when the only persons
alleged to have viewed the grade are administrators at UDC
and PGCC. Second, although Mr. Hodge believes he earned a
" C" in his math class, CSM writing on his
transcript that he received a " D" in the course
would not be " false," as that is the grade Mr.
Hodge acknowledges that he actually received at the end of
the semester. Third, Plaintiffs identify no injury that
resulted from UDC and PGCC viewing Mr. Hodge's "
D" grade; indeed, Plaintiffs' allegations show that
Mr. Hodge was accepted as a student at PGCC and later at UDC
despite these schools' officials viewing his purportedly
" false" grade.
foregoing reasons, the motions to dismiss filed by County
Defendants, the State of Maryland, and CSM Defendants will be
granted. A separate order will follow.
reasons stated in the foregoing Memorandum Opinion, it is
this 3rd day of August, 2015, by the United States District
Court for the District of Maryland, ORDERED that:
motion to dismiss filed by Defendants Calvert County and
Charles County (ECF No. 15) BE, and the same hereby IS,
motion to dismiss filed by Defendant State of Maryland (ECF
No. 26) BE, and the same hereby IS, GRANTED;
motion to dismiss filed by Defendant College of Southern
Maryland and its affiliated Defendants (ECF No. 21) BE, and
the same hereby IS, GRANTED;
Plaintiffs Harold and Chante' Hodge's claims against
all Defendants BE, and the same hereby ARE, DISMISSED;
clerk will transmit copies of the Memorandum Opinion and this
Order to counsel for Defendants and directly to Plaintiffs
and CLOSE this case.
The complaint identifies this professor as
Matthew " Doe" but CSM Defendants provide that this
professor's last name is Schatz.
CSM Defendants include: CSM, Dr. Bradley M.
Gottfried, Sue Subocz, Loretta McGrath, Richard
Fleming, Jeffrey Potter, Richard Welsh, Matthew Schatz,
Ricardo " Doe," and Charlie "
CSM Defendants note that although CSM is a
State agency, it is also defined as a " local
government" under the LGTCA. (ECF No. 21-1, at 22).
Under the Maryland Code, Courts and Judicial Proceedings
§ 5-301(d)(9), Local government is defined to include
" a community college or board of trustees of a
community college established or operating under Title 16 of
the Education Article[.]"
The complaint does not allege a date on
which this event occurred, but Plaintiffs' defamation and
invasion of privacy claims are premised on UDC and PGCC
viewing Mr. Hodge's purportedly incorrect grade on
transcripts that were received from CSM. Mr. Hodge did not
start attending PGCC until January 2014 and UDC until August
2014, accordingly, it is possible that the transmission of
his transcript occurred after September 19, 2013. Even
if Plaintiffs' complied with the LGTCA as to these
claims, as will be seen, Plaintiffs' allegations do not
state plausible defamation or false light invasion of privacy
Plaintiffs advance both defamation and
false light invasion of privacy claims. Plaintiffs' false
light claim need not be assessed separate and apart
from their defamation claim because " [a]n allegation of
false light must meet the same legal standards as an
allegation of defamation[,]" and Plaintiffs'
allegations of defamation fail to state a claim.
Piscatelli v. Van Smith, 424 Md. 294, 306, 35 A.3d