United States District Court, D. Maryland
DEBORAH K. CHASANOW, United States District Judge
pending and ready for resolution in this workplace harassment
action are: (1) a motion to dismiss filed by Defendants John
S. Wolfe, Casey Campbell, Allen Gang, Glynis Watford, Genice
Fowler, Agboha Augustine, Fekoya Foluso, Kevin Hight, Oduazu
Ike, Joseph Swen, Imoemiye Olufemi, Shalawanda Suggs, Edward
Burl, Uzoma Godspower, Tamisha Forbes, Charles Frank, Paul
Ogordi, Emilike Sunday, Judith Hendric Jones, Ajose Ganiyat,
Oloku Olatunbosun, Omolaja Francis, Ugo Ignes, Onanuga
Endurance, M. Fields, Robinson Abner, Falope Mofoluwaso, and
Okunade Adeniyi (together, the “State
Defendants”) (ECF No. 52); (2) a motion to dismiss
filed by Defendant Wexford Health Sources Incorporated
(“Wexford”) (ECF No. 31); a motion to strike the
surreply of Plaintiff Samuel Olekanma
(“Plaintiff”), filed by Wexford (ECF No. 51); a
motion to disqualify opposing counsel filed by Plaintiff (ECF
No. 55); Plaintiff's application for injunctive relief
(ECF No. 56); and Plaintiff's motion for default judgment
(ECF No. 59). The issues have been briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, the State Defendants' motion
to dismiss will be denied as to Defendant Wolfe and granted
as to all other State Defendants, Wexford's motion to
dismiss will be granted, Wexford's motion to strike
Plaintiff's surreply will be granted, and Plaintiff's
motions will be denied.
relevant times, Plaintiff has been employed by the Maryland
Department of Public Safety and Correctional Services
(“MDPSCS”) as a corrections officer at the Jessup
Correctional Institution (“JCI”). (ECF No. 30, at
6, 10). Plaintiff alleges that Electa Awanga, a female nurse
employed by Wexford at JCI, repeatedly sexually harassed him
beginning in November 2014. (ECF No. 4, at 2,
According to Plaintiff, “[t]his sexual [h]arassment was
brought to the attention of the supervisors and appointed
authorities . . . but they failed to remove [P]laintiff from
the abusive condition on time which resulted in further
sexual harassment and abuse.” (Id. ¶ 1).
Plaintiff alleges that he reported the harassment to his
supervisors, Defendants Wolfe, Campbell, and Gang, but they
“were  absent or on vacation at the time of the
complaint which is a violation of policy and procedure that
resulted in . . . continued sexual harassment.”
(Id. ¶ 2). Furthermore, he maintains that
“[w]hen [he] took the matter to . . . [Maryland Equal
Employment Opportunity Coordinator Glynis Watford, she]
further harassed [P]laintiff by intimidating [him].”
(Id. ¶ 4). After he complained about the sexual
harassment, Plaintiff allegedly was moved away from his work
area, and other JCI employees filed complaints against him.
(Id. at 11-12). Plaintiff also asserts that
Defendant Wexford employs Ms. Awanga and “failed to act
or do anything about [his] complaint” of harassment.
(Id. ¶ 5).
proceeding pro se, filed a complaint in this court
against MDPSCS on April 6, 2015. (ECF No. 1). Shortly
thereafter, the court found the complaint to be insufficient
under federal pleading standards and granted him twenty-eight
days to file an amended complaint. (ECF No. 3). On May 6,
Plaintiff filed an amended complaint against Defendant
Wexford and Defendants Wolfe, Campbell, Gang, and Watford, in
their official capacities. (ECF No. 4). Plaintiff's
first amended complaint asserted claims under: 18 U.S.C.
§ 1346 (definition of a criminal “scheme or
artifice to defraud”) (Count I); 18 U.S.C. § 242
(criminal deprivation of rights under color of law) (Count
II); 31 C.F.R. § 0.208 (employee rules of conduct for
the United States Department of the Treasury) (Count
III); 18 U.S.C. § 241 (criminal deprivation
of rights by conspiracy) (Count IV); and 18 U.S.C. § 3
(criminal accessory after the fact) (Count V). Defendant
Wexford and Defendants Wolfe, Campbell, Gang, and Watford
filed motions to dismiss the amended complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (ECF Nos.
10; 21). The court granted those motions to dismiss because,
as a private citizen, Plaintiff lacked standing to bring suit
under the criminal statutes and Treasury regulations that he
cited in the various counts of the complaint. (ECF No. 25, at
7-8). Although Plaintiff did not purport to bring his case
under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq., the
court liberally construed his pro se complaint to
assert claims of sexual harassment and retaliation.
(Id. at 8). The court dismissed those claims,
however, because Plaintiff had not alleged that he had
exhausted his administrative remedies and because he had sued
individual employees and supervisors rather than his
employer, as defined by Title VII. (Id. at
being granted leave to amend, Plaintiff filed a second
amended complaint on March 22, 2016. (ECF No. 30). The second
amended complaint incorporates all allegations contained in
his prior pleadings, names twenty-eight additional individual
defendants (together with Wexford, Wolfe, Campbell, Gang, and
Watford, “Defendants”), and asserts claims under
Title VII; the Sarbanes-Oxley Act (“SOX”), 18
U.S.C. § 1514A; the whistleblower protections under the
Dodd-Frank Act (“Dodd-Frank”), 15 U.S.C. §
78u-6(h)(1)(A); and 18 U.S.C. § 242. (Id. at
6-7, 10-12). Plaintiff also sought appointment of counsel,
which the court denied because Plaintiff had not sought to
proceed in forma pauperis when filing his complaint.
(ECF No. 35, at 4-5).
filed its pending motion to dismiss on March 28, 2016. (ECF
No. 31). The State Defendants' pending motion to dismiss
was filed on July 26, 2016. (ECF No. 52). Plaintiff has
responded to both motions. (ECF Nos. 36; 57). Wexford replied
on April 25 (ECF No. 38), and Plaintiff filed a surreply on
July 18 (ECF No. 50). Wexford then moved to strike
Plaintiff's surreply. (ECF No. 51). Plaintiff responded
to that motion (ECF No. 54), and Wexford replied (ECF No.
58). Plaintiff filed his pending motions to disqualify
opposing counsel Lisa Arnquist (ECF No. 55), for injunctive
relief (ECF No. 56), and for default judgment against all
Defendants except Wexford (ECF No. 59) in August 2016.
Wexford and the State Defendants filed separate responses to
Plaintiff's motion for default judgment (ECF Nos. 60;
61), and Plaintiff replied to each of those filings (ECF Nos.
Motions to Dismiss
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 Atl.
Corp. v. Twombly, 550 U.S. 544, 555 n.3 (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 (2009) (citations omitted).
stage, all well-pleaded allegations in the complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268 (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)); Brockington v. Boykins,
637 F.3d 503, 505-06 (4th Cir. 2011). In
evaluating the complaint, unsupported legal allegations need
not be accepted. Revene v. Charles Cty. 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); see also Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged, but it has not
‘show[n] that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
pro se pleadings are liberally construed and held to
a less stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean that the court
should rewrite the complaint to include claims never
presented. Barnett v. Hargett, 174 F.3d 1128, 1132
(10th Cir. 1999). That is, even when pro
se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990); Forquer v. Schlee,
No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(citation and internal quotation marks omitted)
(“[E]ven a pro se complaint must be dismissed
if it does not allege a plausible claim for relief.”).
Non-Title VII Claims
second amended complaint, Plaintiff alleges violations of SOX
and Dodd-Frank for the first time. (Id. at 6- 7,
10-12). SOX protects whistleblowers of publicly traded
companies by prohibiting employers from retaliating against
employees who have provided information about potentially
illegal conduct. 18 U.S.C. § 1514A(a); Welch v.
Chao, 536 F.3d 269, 275 (4th Cir. 2008).
Dodd-Frank “encourages individuals to provide
information relating to a violation of securities laws to the
Securities and Exchange Commission” (“SEC”)
by protecting whistleblowers from retaliatory actions by
their employers. Asadi v. G.E. Energy (USA), LLC,
720 F.3d 620, 622-23 (5th Cir. 2013); see
15 U.S.C. § 78u-6. Here, there is no assertion that
Plaintiff's employer - a state agency - is a publicly
traded company. Nor is there any allegation that he reported
information to the SEC. Accordingly, these claims will be
second amended complaint also makes references to extortion,
prostitution, and fraud. Plaintiff has not alleged any facts
indicating that any of the Defendants defrauded him. Although
Plaintiff labels one of his causes of action “Fraud,
” it simply quotes the text of 18 U.S.C. § 242. As
previously held (ECF No. 25, at 7-8), Plaintiff does not have
standing to bring a private civil action under 18 U.S.C.
§ 242, a criminal statute, see Fromal v. Lake
Monticelle Owners' Ass'n, Inc., No.
3:05-CV-00067, 2006 WL 167894, at *1-2 (W.D.Va. Jan. 23,
2006) (determining that 18 U.S.C. §§ 241 and 242
and 18 U.S.C. § 1341 are criminal statutes that do not
provide a private right of action), aff'd, 223
F.App'x 203 (4th Cir. 2007). Plaintiff also
does not have a private cause of action for the alleged
prostitution or extortion. It appears that Plaintiff intends to
allege prostitution and extortion as part of a racketeering
scheme. Although he mentions racketeering only generally in
his second amended complaint (see ECF No. 30, at 7,
8, 13), he argues in opposition to the motions to dismiss
that Defendants violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C.
§§ 1961-68 (see ECF Nos. 36, at 7-8; 57,
at 2-3, 14-21). Even construing his complaint liberally,
Plaintiff has not alleged sufficient facts to plead a RICO
claim. To state a claim for a substantive violation of RICO,
the complaint must set forth facts which, if proven, would
establish “(1) conduct (2) of an enterprise (3) through
a pattern (4) of racketeering activity.” Morley v.
Cohen, 888 F.2d 1006, 1009 (4th Cir. 1989)
(quoting Sedima, ...