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Olekanma v. Wolfe

United States District Court, D. Maryland

September 22, 2017

JOHN S. WOLFE, Warden, Jessup Correctional Facility, et al.



         Presently pending and ready for resolution in this workplace harassment action are: (1) a motion to dismiss and, in the alternative, for summary judgment filed by Defendants Maryland Department of Public Safety & Correctional Services (“MDPSCS”) and John Wolfe, Warden of Jessup Correctional Institute (“JCI”) (collectively “Defendants”) (ECF No. 68); (2) a motion to take judicial notice filed by Plaintiff Samuel Olekanma (“Plaintiff”) (ECF No. 74); and (3) a motion for a protective order filed by Plaintiff (ECF No. 76). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted, the motion to take judicial notice will be denied, and the motion for a protective order will be denied as moot.

         I. Background

         A. Factual History[1]

         At all relevant times, Plaintiff has been employed by MDPSCS as a corrections officer. (ECF No. 30, at 6, 10). Plaintiff alleges that Electa Awanga, a nurse employed by Wexford Health Sources Incorporated (Wexford) - MDPSCS's medical contractor, repeatedly sexually harassed him. (ECF No. 4 at 6-11).

         Plaintiff's complaint is far from a model of clarity. It appears that the alleged harassment started at some point before May 2014. (ECF No. 4, at 6) (“The first time I worked with Electa Awanga is about a year plus ago”). Plaintiff alleges that on the night the harassment started, he was working a shift with Ms. Awanga and she inappropriately touched him, called him “sweetie [and] honey, ” offered to have sex with him, discussed her sex life with him, and showed him her breasts. (Id. at 6, 10). He alleges that from then until November 2014, she sexually harassed him through a variety of unwanted acts including brushing up against him and making derogatory statements about Plaintiff's sex life and anatomy. (Id. at 6-11).

         Plaintiff also alleges that Ms. Awanga and several other employees at JCI were engaged in a “prostitution ring” at JCI. (ECF No. 30, at 9). Plaintiff alleges that Defendants “[c]reated an atmosphere and working condition which ma[de] it almost impossible to work . . . without engaging in some sort of illicit sexual relationship with either a co-worker, staff and or a supervisory staff.” (Id. at 10).

         In his first amended complaint, which he purported to incorporate by reference into his second amended complaint, Plaintiff asserted that he was harassed on November 29, 2014 and reported that incident to Warden Wolfe, Assistant Warden Casey Campbell, and Chief of Security Allen Gang but that they were “absent or on vacation at the time of the complaint[.]” (ECF No. 4, at 2). He alleges that on that date, he also told his supervisors about the harassment but that his supervisors “ridiculed and laughed about it[.]” (ECF No. 4-1, at 1). Plaintiff further alleges that at that time “the supervisors and appointed authorities failed to remove [P]laintiff from the abusive condition on time[.]” (ECF No. 4, at 2). On December 10, 2014, Plaintiff was transferred from JCI to another prison, the Maryland Correctional Institution for Women (“MCIW”). (ECF No. 4-1, at 3).

         B. Procedural History

         Plaintiff, proceeding pro se, filed a complaint in this court against MDPSCS on April 6, 2015. (ECF No. 1). The court found the complaint to be insufficient under federal pleading standards and granted Plaintiff twenty-eight days to file an amended complaint. (ECF No. 3).

         On May 6, Plaintiff filed an amended complaint against Wolfe, Campbell, Gang, Glynis Watford, Maryland EEO Coordinator, and Wexford. (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);[2] 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). The defendants moved to dismiss the amended complaint, (ECF Nos. 10; 21), and 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). Furthermore, the court found, even construing the amended complaint liberally, Plaintiff could not state a claim for relief under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., for sexual harassment or retaliation 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 8-11).

         After being granted leave to amend, Plaintiff filed a second amended complaint on March 22, 2016. (ECF No. 30). The second amended complaint incorporated all allegations contained in his prior pleadings, named twenty-eight additional individual defendants and asserted claims under Title VII; the whistleblower protections of Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, and the Dodd-Frank Act (“Dodd-Frank”), 15 U.S.C. § 78u-6(h)(1)(A); and 18 U.S.C. § 242.[3] (Id. at 6-7, 10-12). Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The court dismissed the claims brought under SOX and Dodd-Frank because Plaintiff was not employed by a publicly traded company and had not reported information to the Securities and Exchange Commission. (ECF No. 66 at 8-9). The court dismissed the claim under 18 U.S.C. § 242 because it was a criminal statute that did not authorize a private right of action. (ECF No. 66, at 9-10). Construing his complaint liberally, the court determined Plaintiff may have attempted to raise a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, (ECF No. 30, at 7, 8, 13) but dismissed those claims for failing to identify a RICO predicate. (ECF No. 66, at 10-11). Although Plaintiff provided proof that he had exhausted his administrative remedies after filing his initial complaint, the court, nevertheless, dismissed the Title VII claim against all the defendants, except for Warden Wolfe and MDPSCS, [4] because Title VII only authorizes claims against employers and only Warden Wolfe, in his official capacity, and MDPSCS were his employers. (Id. at 13-14). Having ruled that Warden Wolfe and MDPSCS were proper defendants and due to the confusing nature of the complaint and the proceedings, the court allowed Defendants an opportunity to file another motion to dismiss. (Id. at 17-18).

         On March 15, 2017, Defendants filed a motion to dismiss or, in the alternative, motion for summary judgment. (ECF No. 68). Plaintiff responded and then moved to take judicial notice of facts and next for a protective order. (ECF Nos. 70, 74, 76). Defendants replied and then submitted oppositions to Plaintiff's motions. (ECF Nos. 71, 78).

         II. Motion to Dismiss

         A. ...

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