United States District Court, D. Maryland
ANNA BORKOWSKI, et al.
BALTIMORE COUNTY, MARYLAND, et al.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this civil rights class
action are Defendants' motions to dismiss the second
amended complaint (ECF Nos. 26; 29; 45; 46), and
Defendants' motions to seal (ECF Nos. 28 & 48).
Anna Borkowski, Katelyn Frank, Marcella Fegler, Annemarie
Hendler, and Kaila Noland (“named Plaintiffs”),
on their own behalf and on behalf of those similarly situated
(“class Plaintiffs”), bring suit against
twenty-two Defendants alleging twenty counts related to
Defendants' handling of Plaintiffs' sexual assault or
rape investigations. (ECF No. 21). Plaintiffs allege that all
Defendants, or combinations thereof, infringed upon their
rights in violation of (1) 42 U.S.C. § 1983, civil
action for deprivation of equal protection and first
amendment rights; (2) 42 U.S.C. § 1985, conspiracy to
interfere with civil rights; (3) 42 U.S.C. § 1986,
action for neglect to prevent conspiracy to interfere with
civil rights; (4) 20 U.S.C. § 1681, sex discrimination,
failure to prevent sexual harassment, deprivation of
educational rights, and erroneous outcome; and (5) the Fourth
Amendment to the United States Constitution, unreasonable
search and seizure.
Defendants filed motions to dismiss in four groups: (1)
Defendants University of Maryland Baltimore County
(“UMBC” or the “University”), the
Board of Regents of the University System of Maryland
(“Board of Regents”), the UMBC Police Department
(“UMBCPD”) (collectively, “Institutional
Defendants”), Dr. Freeman Hrabowski, Mark Sparks, and
Paul Dillon (all collectively, “University
Defendants”); (2) Defendant Bernadette Hunton; (3)
Defendants Nicholas Tomas, Kristin Burrows, Kimberly
Montgomery, Morrow Lane, Rosemary Brady, Paul Dorfler, and
Timothy Lee (“Officer Defendants”), James Johnson
and Terrence Sheridan (“Supervisory Officer
Defendants”), Baltimore County, and the Baltimore
County Police Department (“BCPD”) (all
collectively, “County Defendants”); and (4)
Defendants Scott Shellenberger, Lisa Dever, Bonnie Fox, and
Krystin Richardson (“State's Attorney
Defendants”). The issues have been briefed, and the
court now rules, no hearing being deemed necessary. Local
otherwise noted, the facts outlined here are set forth in the
complaint and construed in the light most favorable to
Plaintiffs. Plaintiffs allege that all Defendants adopted
“discriminatory policies and/or [exhibited] deliberate
indifference  to artificially lower the number of recorded
reports of rape and sexual assault in Baltimore County and on
the UMBC campus.” (ECF No. 21, at 24). Plaintiffs
further state that “Defendants followed written and/or
unwritten policies, and . . . afforded less protection to
female victims of sexual assault than to victims of other
crimes.” (Id., at 99).
allege that “[o]n August 25, 2014, Marcella Fegler was
raped by four members of the UMBC basketball team.”
(ECF Nos. 53, at 11; 21, at 56-57). “Defendant UMBC
expelled two of [her] assailants, who had both admitted . . .
that they had taken advantage of her.” (ECF No. 21, at
56). “Defendant UMBC refused to hold accountable the
assailants who did not admit that they raped Ms.
Tomas, a BCPD officer, later investigated Ms. Fegler's
rape and “offered to testify, on behalf of the
assailants, that the assailants were ‘not involved as
alleged.'” (ECF Nos. 21, at 57; 53, at 11).
“Defendant Tomas dismissed Ms. Fegler's assault,
informing her that ‘in order for some of the sex
acts,' which Ms. Fegler could not recall ‘to be
performed, she would have had to be conscious to
participate.'” (ECF Nos. 21, at 57; 51, at 12).
Frank alleges that she was raped by “a fellow UMBC
student” on September 10, 2015. (ECF No. 21, at 57).
Ms. Frank reported her rape and obtained a Sexual Assault
Forensic Exam (“SAFE”) at Greater Baltimore
Medical Center (“GBMC”). (ECF Nos. 21, at 9; 53,
at 12). Plaintiff Frank states that Defendant Dillon, a BCPD
officer, dissuaded her from making a police report by telling
“Ms. Frank and her mother that the
‘administrative method' was ‘faster and
easier,' ‘more victim friendly,' and 
‘easier to prove.'” (ECF No. 21, at 59).
Defendant Hunton conducted a Title IX investigation.
Defendant Hunton is a private attorney hired by UMBC
“to investigate and prepare  Title IX Draft Report[s]
and Final Report[s].” (ECF No. 21, at 62). Defendant
Hunton determined, by a preponderance of the evidence, that
Plaintiff Frank was not sexually assaulted. Plaintiff Frank
then reported the sexual assault directly to the
“Catonsville Precinct of BCPD[.]” (ECF No. 21, at
65). Defendant Lee, a BCPD officer, took Plaintiff
Frank's statement. (Id., at 65-66). Defendant
Lee then drove to the UMBCPD to follow up on Plaintiff
Frank's allegations. (Id. at 66). “When
Defendant Lee returned, he informed Ms. Frank that the
University had no record of the assault, even though”
“she had copies of the records from the Title IX
investigation . . . [and] her email to Defendant Dillon
reporting the crime.” (Id.). Defendant Lee
classified “Ms. Frank's rape as a ‘suspicious
condition,' and it was closed with a ‘non-criminal
disposition[.]'” (Id.). Plaintiff Frank
alleges that when she “followed up with prosecutors[,
]” Defendant Dever, the assistant state's attorney
and chief of the sex offense and child abuse division of the
State's Attorney's Office, “stated that, to
prosecute a sexual assault she ‘need[s] more than just
[the victim's] credible testimony because the suspect
will present equally credible testimony at trial that this
was consensual and [the victim] was not
incapacitated.'” (Id., at 67; ECF No. 53,
at 12). Plaintiff Frank further alleges that when her
“mother . . . requested more information regarding the
investigation, Defendant Dever forwarded the email to
Defendant Montgomery[, a BCPD detective assigned to the
special victims team, ] and wrote ‘Hahaha! Her response
from my being so nice.'” (ECF No. 21, at 67).
March 30, 2016, Kaila Noland was sexually assaulted” by
“her lab partner at UMBC[.]” (ECF No. 21, at 68).
“Ms. Noland reported her assault to UMBC.”
(Id.). Defendant Hunton investigated the sexual
assault and concluded “that Ms. Noland was sexually
assaulted[.]” (Id.). “Defendant Hunton
recommended that UMBC not expel Ms. Noland's
assailant.” (Id., at 69). “Based on that
recommendation, UMBC imposed one ‘counseling
session' as a penalty for Ms. Noland's
assailant.” (Id.). Plaintiffs allege that, as
a result of the sexual assault and investigation, “Ms.
Noland was forced to leave her laboratory job for another
campus.” (Id., at 130).
Anna Borkowski and Annemarie Hendler
Borkowski and Hendler, both students at Towson University,
allege that on “October 20, 2017, three members of
Defendant UMBC's baseball team raped” them. (ECF
Nos. 53, at 13; 21, at 69-70). “The women reported the
assaults to the Towson University Police Department
(‘TUPD')” the same day. (ECF No. 21, at 71).
“[T]he women were transported to [GBMC] for examination
and treatment.” (Id.). Ms. Borkowski and Ms.
Hendler also reported their sexual assaults to Defendant
UMBC. UMBC investigated the reports according to Title IX
procedures and determined that no violation of their sexual
assault policy had occurred. (Id., at 121-22; ECF
No. 53, at 13).
March 14, 2018, Ms. Borkowski exercised her rights pursuant
to [§] 2-607 of the Courts and Judicial Proceedings
Article of the Maryland Code.” (ECF No. 21, at 80).
“Section 2-607 provides that ‘[a]n individual may
file an application for a statement of charges with a
District Court Commissioner.'” (Id.).
“The Commissioner is then tasked with examining the
affidavit and issuing a statement of charges or, in the
absence of probable cause, denying the application.”
(Id., at 81). “Ms. Borkowski submitted sworn
applications for statements of charges with District Court
Commissioner John Robey.” (Id.). Plaintiffs
allege that Defendants Dever and Montgomery “improperly
directed Commissioner Robey to deny the applications for
statements of charges.” (Id.).
Borkowski sought again to avail herself of a neutral judicial
officer, Managing Commissioner Colleen Ellingson, who charged
Ms. Borkowski's assailants with ‘first degree rape,
second degree sexual assault, third degree sexual offense,
second degree assault, fourth degree sexual contact, and
perverted practice.'” (ECF Nos. 51, at 13; 21, at
82). “The summonses were sent out the next day, to be
served on the three (3) assailants.” (ECF No. 21, at
82). “The summonses have yet to be served[, ]”
however. (Id., at 83). Instead, Plaintiffs allege
that Defendant Kristin Burrows, a BCPD detective assigned to
the special victims team, “contacted the Baltimore
County police officer in charge of serving the summonses and
instructed him not to serve the three  men.”
(Id.). “Ms. Borkowski received a subpoena to
testify dated March 21, 2018.” (Id.).
Plaintiffs further state that Baltimore County Administrative
Commissioner Whitney “Wisniewski  ‘sen[t] out a
department-wide email instructing Commissioners not to act if
they receive any further applications' from Ms.
Borkowski, and further ‘instructed Commissioners to
forward [to her] any applications if submitted.'”
(Id., at 85). Plaintiffs allege that “[t]hese
instructions were issued at the behest of [State's
Attorney] Defendants Shellenberger, Dever, [and] Fox, [and
Officer Defendants] Burrows and Tomas.” (Id.).
Plaintiffs further state that “Defendants
Shellenberger, Dever, and Fox  ordered Defendants Burrows
and Tomas  ‘to tell Ms. Borkowski that she has to
stop bringing these additional charges or they will file
criminal abuse of process charges against her'”
and “to ‘stop going to [the] Comm[issioner]'
or she w[ill] face ‘criminal charges.'”
(Id., at 86-87). Plaintiffs allege that “three
 officers arrived at Ms. Borkowski's Baltimore City
residence, ” but she was not home. (Id., at
87). “Defendants Burrows and Tomas [then] contacted Ms.
Borkowski directly on her cell phone[, ]” which she
“had provided. . . as part of the rape
investigation.” (Id., at 88). “When Ms.
Borkowski's attorney learned of” this contact,
“he offered to make Ms. Borkowski available to
Defendants Tomas and Burrows that afternoon, in his
office.” (Id.). Plaintiffs assert that
“[a]fter Defendants Tomas and Burrows conferred with .
. . Defendants Dever, Shellenberger, and Fox, Defendants
Burrows and Tomas were ordered not to meet with Ms. Borkowski
because [the state's attorney for Baltimore County, ]
‘Scott [Shellenberger, ] said not to go b[e]c[ause] of
attorney.'” (Id., at 88-89). Plaintiffs
state that “[t]he next day, March 23, 2018, Defendant
Dever . . . file[d] a ‘Motion to Dismiss,' [via
email] without a certificate of service, in the criminal
actions against the assailants.” (Id., at 89).
April 18, 2018, Emily Borkowski, Anna Borkowski's sister,
was accepted into the internship program at the Baltimore
County State's Attorney's Office's Domestic
Violence Section.” (Id., at 107). Plaintiff
Borkowski alleges that “Defendant Fox admitted, in an
email to Defendant Dever . . ., to having
‘stalked' Anna Borkowski to ferret out any
connection between Anna and Emily Borkowski.”
(Id.). “On May 11, 2018, Emily Borkowski was
fired.” (Id.). The second amended complaint
states that “Defendants admitted that the retaliatory
firing was in response to a purported accusation of
‘misconduct' made by Anna Borkowski's attorney
in a [state] court filing.” (Id.). Further
facts will be discussed as relevant to the various legal
commenced this action by filing a complaint on September 10,
2018. (ECF No. 1). Plaintiffs then filed an amended complaint
on October 17, 2018 (ECF No. 5) and a second amended
complaint on December 7, 2018 (ECF No. 21). Defendants filed
four separate motions to dismiss the second amended complaint
- Defendant Hunton on January 11, 2019 (ECF No. 26);
State's Attorney Defendants on January 14, 2019 (ECF No.
29); County Defendants on February 7, 2019 (ECF No. 45); and
University Defendants on February 7, 2019 (ECF No. 46).
Plaintiffs responded in opposition to each motion to dismiss
- to Defendant Hunton on March 11, 2019 (ECF No. 49); to
County Defendants on April 1, 2019 (ECF No. 51); to
State's Attorney Defendants on April 1, 2019 (ECF No.
52); and to University Defendants on April 1, 2019 (ECF No.
53). Defendants replied - Defendant Hunton on March 25, 2019
(ECF No. 50); University Defendants on May 30, 2019 (ECF No.
63); State's Attorney Defendants on May 31, 2019 (ECF No.
64); and County Defendants on May 31, 2019 (ECF No. 65).
Defendant Hunton and University Defendants filed motions to
seal exhibits containing sensitive information on January 11,
2019 (ECF No. 28), and February 7, 2019 (ECF No. 48).
individual Defendants are being sued both in their individual
and official capacities. (ECF No. 21, at 18). The complaint
alleges the following twenty counts: (Count I) Equal
protection violations under 42 U.S.C. § 1983 by all
Plaintiffs against all Defendants; (Count II) deprivation of
first amendment rights under 42 U.S.C. § 1983 by
Plaintiff Borkowski and class Plaintiffs against Defendants
Baltimore County, BCPD, Montgomery, Tomas, Burrows, Dorfler,
Johnson, Sheridan, and State's Attorney Defendants;
(Count III) conspiracy to interfere with civil rights under
42 U.S.C. § 1985 by Plaintiff Borkowski against
Defendants Baltimore County, BCPD, Shellenberger, Dever, Fox,
Montgomery, Tomas, Lane, Brady, Dorfler, and Burrows; (Count
IV) deprivation of equal protection and retaliation against
Ms. Borkowski's family under 42 U.S.C. § 1983 by
Plaintiff Borkowski against Defendants Baltimore County,
BCPD, and State's Attorney Defendants; (Count V)
deprivation of equal protection under 42 U.S.C. § 1983
by Plaintiff Borkowski against Defendants Shellenberger,
Dever, Fox, Burrows, Tomas, Dorfler, Lane, and Montgomery;
(Count VI) deprivation of equal protection under 42 U.S.C.
§ 1983 by Plaintiff Frank against Defendants Baltimore
County, BCPD, Dever, Shellenberger, Montgomery, Sparks,
Hrabowski, Hunton, and Dillon; (Count VII) conspiracy to
obstruct justice under 42 U.S.C. § 1985 by Plaintiff
Frank against Defendants Baltimore County, BCPD, Hrabowski,
Sparks, Dillon, Johnson, Lee, Lane, Shellenberger, and Dever;
(Count VIII) action for neglect to prevent conspiracy to
obstruct justice under 42 U.S.C. § 1986 by Plaintiffs
Borkowski, Hendler, Frank, and class Plaintiffs against
Defendants Shellenberger, Dever, Fox, Burrows, Tomas,
Montgomery, Johnson, Lane, Sheridan, and Dorfler; (Count IX)
sex discrimination and deprivation of educational access
under 20 U.S.C. § 1681 by Plaintiff Frank against
Defendants Board of Regents, UMBC, and UMBCPD; (Count X)
erroneous outcome under 20 U.S.C. § 1681 by Plaintiff
Frank against Defendants Board of Regents and UMBC; (Count
XI) failure to prevent sexual harassment under 20 U.S.C.
§ 1681 by Plaintiff Frank against Defendants Board of
Regents, UMBC, and UMBCPD; (Count XII) denial of educational
opportunities under 20 U.S.C. § 1681 by Plaintiffs
Borkowski and Frank against Defendants Board of Regents,
UMBC, and UMBCPD; (Count XIII) sex discrimination and
deprivation of educational access under 20 U.S.C. § 1681
by Plaintiffs Borkowski and Hendler against Defendants Board
of Regents and UMBC; (Count XIV) unreasonable search and
seizure in violation of the Fourth Amendment by Plaintiffs
Borkowski, Hendler, Frank, and the “Invasive Testing
Subclass” against Defendants Baltimore County, BCPD,
Sheridan, Johnson, and State's Attorney Defendants;
(Count XV) conspiracy to interfere with civil rights under 42
U.S.C. § 1985 by Plaintiffs Fegler, Frank, and class
Plaintiffs against Defendants BCPD, Dever, Shellenberger,
Fox, Hrabowski, Tomas, Burrows, Dillon, Brady, Montgomery,
Sparks, and Sheridan; (Count XVI) sex discrimination and
deprivation of educational access under 20 U.S.C. § 1681
by Plaintiff Fegler against Defendants UMBC, Board of
Regents, and UMBCPD; (Count XVII) sex discrimination and
deprivation of educational access under 20 U.S.C. § 1681
by Plaintiff Noland against Defendants UMBC, Board of
Regents, and UMBCPD; (Count XVIII) conspiracy to obstruct
justice under 42 U.S.C. § 1985 by all Plaintiffs and
class members against all Defendants; (Count XIX) action for
neglect to prevent conspiracy to obstruct justice under 42
U.S.C. § 1986 by all Plaintiffs and class members
against all Defendants; and (Count XX) deprivation of equal
protection under 42 U.S.C. § 1983 by Plaintiff Noland
against Defendants Hrabowski and Hunton.
seek class certification under Fed.R.Civ.P. 23; an entry of
judgment finding Defendants jointly and severally liable for
monetary and punitive damages; an order enjoining Defendants
from “engaging in unconstitutional and illegal
practices abridging Plaintiffs' and others['] civil
rights and denying Plaintiffs['] and others[']
educational opportunities[;]” and an award “to
Named Plaintiffs [of] reasonable costs and attorneys[']
fees[.]” (ECF No. 21, at 133-134).
Standard of Review
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). 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, Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), as are conclusory factual allegations devoid of any
reference to actual events. United Black Firefighters of
Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186,
193 (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.” Id.
deciding a Rule 12(b)(6) motion, the court will consider the
facts stated in the complaint and the documents attached to
the complaint.” Abadian v. Lee, 117 F.Supp.2d
481, 485 (D.Md. 2000). The court may also consider documents
referred to in the complaint and relied upon by plaintiff in
bringing the action.” Id. (citing
Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748,
749 (D.Md. 1997), aff'd, 151 F.3d 180
(4th Cir. 1998)). When doing so, the court need
not convert a Rule 12(b)(6) motion to dismiss to one for
summary judgment so long as it does not consider matters
“outside the pleadings.” See
Fed.R.Civ.P. 12(d) (“If, on a [12(b)(6) motion to
dismiss], matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.”); Laughlin v.
Metro. Washington Airports Auth., 149 F.3d 253, 260-61
(4th Cir. 1998)(citing Rule 12(d)); Luy v.
Balt. Police Dep't, 326 F.Supp.2d 682, 688 (D.Md.
2004) (“The court may consider a document submitted by
the defendant in support of a motion to dismiss, however,
‘[if] it was integral to and explicitly relied on in
the complaint and [if] the plaintiffs do not challenge its
authenticity.'”) (quoting Am. Chiropractic
Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004)).
Defendants attached thirty-three exhibits, Defendant Hunton
attached four exhibits, and County Defendants attached nine
exhibits, to their respective motions or papers. Plaintiffs
do not challenge the authenticity of any attached documents.
Only those exhibits that are integral to and relied on in the
second amended complaint will be considered. Thus, UMBC's
policies, investigation reports and adjudications of the
various sexual assault allegations filed by Plaintiffs with
UMBC, and UMBC's Clery Reports may properly be
considered. The remaining exhibits will be excluded from
verbose complaint, Defendants' multiple motions to
dismiss, and the parties' papers, excluding exhibits,
total over five hundred pages. In this wealth of words, the
parties argue past each other and fail directly to address
some of the central issues in this case. The sheer volume of
factual allegations and legal issues likely contributes to
this confusion. As will be seen, Plaintiffs, at best, have
masked meritorious allegations by the overambitious pleading,
and, at worst, have simply failed to state any viable claim.
The complaint will be dismissed, albeit without prejudice,
and Plaintiffs will have 21 days to file a more focused,
perhaps modest, third amended complaint.
bring three claims on behalf of all Plaintiffs against all
twenty-two Defendants. These claims are Count I, equal
protection violations under 42 U.S.C. § 1983; Count
XVIII, conspiracy to obstruct justice under 42 U.S.C. §
1985; and Count XIX, action for neglect to prevent conspiracy
to obstruct justice under 42 U.S.C. § 1986. Defendants
argue that “[t]hese Counts constitute improper
‘group pleading' or ‘shotgun pleading'
that do not meet federal pleading requirements.” (ECF
No. 45-1, at 51). Plaintiffs argue that Counts I, XVIII, and
XIX were pleaded as “all Plaintiffs” against
“all Defendants” because these claims “are
the only way [to] state claims for a conspiracy, in which all
Defendants participated, which harmed all Plaintiffs.”
(ECF No. 53, at 14). Plaintiffs do not address the fact that
Count I is not a conspiracy claim.
are correct to question Plaintiffs' group pleading. Judge
Titus explained the fault of group pleading in Proctor v.
Metro. Money Store Corp., 579 F.Supp.2d 724, 744 (D.Md.
At best, such pleading amounts to a conclusory allegation
that . . . [each Defendant] [was] somehow responsible for the
wrongful conduct[.] At worst, the repeated refrain that all
three individuals committed each and every act must be read
as an allegation that one of the three did each act,
an assertion that amounts to speculation and which is
deficient under [Bell Atl. Corp. v. ]
Twombly[, 550 U.S. 544 (2007)].
even if Plaintiffs were able to assign specific names
responsible for these allegations, Plaintiffs have not
sufficiently pleaded a claim for conspiracy under these
counts. In Count I, all Plaintiffs allege that all Defendants
violated 42 U.S.C. § 1983 because “Defendants
followed written and/or unwritten policies, and thus afforded
less protection to female victims of sexual assault than to
victims of other crimes.” (ECF No. 21, at 99). In Count
XVIII, Plaintiffs allege that “[a]ll Defendants were
part of a broader scheme, as alleged herein, to deny female
victims of sexual assault their civil rights.”
(Id., at 130). When alleging a § 1985
conspiracy, “the plaintiff must plead facts amounting
to more than ‘parallel conduct and a bare assertion of
conspiracy. . . . Without more, parallel conduct does not
suggest conspiracy, and a conclusory allegation of agreement
at some unidentified point does not supply facts adequate to
show illegality.'” Williams v. Cheesecake
Factory Rests., Inc., No. 15-cv-3700-ELH, 2016 WL 54799,
at *3 (D.Md. Jan. 5, 2016) (quoting A Soc'y Without A
Name v. Virginia, 655 F.3d 342, 346 (4thCir.
2011)). Lastly, in Count XIX, Plaintiffs state that
“[a]ny Defendant or Defendants could have stopped or
lessened the broader scheme, as alleged herein.” (ECF
No. 21, at 131). The remainder of each count lodges
accusatory and bald accusations that do not squarely support
a conspiracy amongst the twenty-two Defendants.“Such an
approach falls short of that which is required to overcome a
motion to dismiss.” Thomas v. Maryland, No.
17-cv-1739-GJH, 2017 WL 6547733, at *6 (D.Md. Dec. 20, 2017).
Accordingly, Counts I, XVIII, and XIX will be dismissed, and
those counts will not further be discussed.
The Baltimore County Police Department
argue that the Baltimore County Police department should be
dismissed as a Defendant. (ECF No. 45-1, at 18). Plaintiffs
do not contest this point. “[T]he Baltimore County
Police Department . . . [is not] sui juris. The
Police Department is simply an agency of Baltimore
County[.]” James v. Frederick Cty. Pub. Schs.,
441 F.Supp.2d 755, 758 (D.Md. 2006) (quoting Strebeck v.
Balt. Cty. Police Dep't, No. 05-cv-2580-JFM, 2005 WL
2897932, at *1 (D.Md. Oct. 17, 2005)). Accordingly, Defendant
Baltimore County Police Department will be dismissed as a
Eleventh Amendment Immunity
Eleventh Amendment bars suits in federal court for monetary
damages against a state or state officials acting in their
official capacity. Ballenger v. Owens, 352 F.3d 842,
844-45 (4thCir. 2003); Lewis v. Bd. of Educ.
of Talbot Cty., 262 F.Supp.2d 608, 612 (D.Md. 2003).
Three exceptions exist to a state's sovereign immunity.
First, a state may waive its immunity and consent to suit in
federal court. Green v. Mansour, 474 U.S. 64, 68
(1985). Although the State of Maryland has waived its
sovereign immunity for certain types of actions brought in
state court pursuant to the Maryland Tort Claims Act,
see Md. Code, State Gov't § 12-104, it has
not waived its Eleventh Amendment immunity for actions
brought in federal court, see Md. Code, State
Gov't § 12- 103(2). Second, immunity does not bar a
suit against a state official when a plaintiff is seeking
prospective relief to end a continuing violation. Ex
Parte Young, 209 U.S. 123, 155-56, 159 (1908). Finally,
Congress may validly abrogate a state's Eleventh
Amendment immunity, but it has not done so here. Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996).
University Defendants state that Defendants UMBC, Board of
Regents, and UMBCPD are “immune from claims made
pursuant to 42 U.S.C. §§ 1983, 1985, and
1986” and that “the individual Defendants[,
Hrabowski, Sparks, and Dillon, ] are immune from suit in
their official capacities.” (ECF No. 46-1, at 21-23).
Plaintiffs argue that “[t]he State of Maryland has
waived any claim to Eleventh Amendment immunity” as to
any University Defendant that is not the “University
System of Maryland[.]” (ECF No. 53, at 15-16).
University of Maryland is ‘an arm of the State
partaking of the State's Eleventh Amendment
immunity.'” Bickley v. Univ. of Md., 527
F.Supp. 174, 181 (D.Md. 1981) (quoting Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977)). Similarly, individuals sued in their official
capacity as state agents are entitled to the same immunity.
As a general matter, the Eleventh Amendment “does not
bar suits for damages against state officers, so long as
those officers are sued in their individual
capacities.” Sales v. Grant, 224 F.3d 293, 297
(4thCir. 2000)__ (citing Kentucky v.
Graham, 473 U.S. 159, 165-66, (1985).
whether an entity is synonymous with the state is not always
an easy endeavor. The nature of the entity and its
relationship with the state are critical to a determination
of the entity's sovereign immunity under the Eleventh
Amendment. The primary factor to be considered is whether a
judgment against the governmental entity would be paid from
the state's treasury. See Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 48 (1994). Generally,
if the judgment would be paid from the state treasury, the
inquiry is at an end. Id. at 49. If the judgment
would not be paid from the state treasury, the factors to be
considered in determining whether suit against the entity
would nonetheless be an affront to the State's
“sovereign dignity” are “(1) the degree of
control that the State exercises over the entity or the
degree of autonomy from the State that the entity enjoys; (2)
the scope of the entity's concerns - whether local or
statewide - with which the entity is involved; and (3) the
manner in which State law treats the entity.” Cash
v. Granville Cty. Bd. of Educ., 242 F.3d 219, 224
(4th Cir. 2001). If the judgment would not be paid
from the state treasury, the “sovereign dignity”
factors may sufficiently tie the entity to the state so that
suit against the entity would amount to suit against the
University Defendants assert that Defendants UMBC, Board of
Regents, and UMBCPD are immune from suit because
“Congress has not abrogated States' Eleventh
Amendment immunity in connection with U.S.C. §§
1983, 1985, and 1986” and that “Maryland has
not waived Eleventh [Amendment] Immunity for claims against
its public universities.” (ECF No. 46-1, at 21-22). As
for the individual Defendants, the University Defendants
argue that “[t]o the extent Plaintiffs are alleging
that the Individual Defendants are liable in their official
capacities, the claims are barred by Eleventh Amendment
immunity.” (Id. at 22). Defendants argue that
immunity is proper because “State employees share in
the State's immunity from being sued in federal court
because a suit against the state officials acting in their
official capacities is a suit against the State.”
(Id.) (internal quotation marks omitted). Defendants
also state that they are not “persons” under
§ 1983. (Id.). Plaintiffs counter, arguing that
these Defendants have consented to be sued and Defendant
UMBCPD is not a state agency for Eleventh Amendment purposes.
(ECF No. 53, at 16-17). Plaintiffs do not directly counter
Defendants' arguments as to the individual Defendants,
and only state that “even if they were entitled to
immunity for acts undertaken in their official capacities,
they are being sued in their individual capacities as
well.” (ECF No. 53, at 17). Plaintiffs argue that suit
is proper because “Defendants were not acting within
the scope of their employment[.]” (Id.).
Board of Regents and UMBC, as a constituent institution of
the University System of Maryland, are considered
instrumentalities of the State for immunity purposes.
See, e.g., Md. Code, Educ. § 12-102(a)(1)-(3)
(The University System of Maryland is “an
instrumentality of the State” and “an independent
unit of State government.”); Md. Code, Educ. §
12-101(b)(6)(ii) (UMBC is one of the “constituent
institutions” of the University System of Maryland).
Individual Defendants Hrabowski, Sparks, and Dillon are
similarly entitled to Eleventh Amendment immunity to the
extent they are being sued in their official capacities.
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 101-102 (1984). Plaintiffs argue that UMBCPD is not
a State agency entitled to Eleventh Amendment immunity
because it “is an entirely local actor (limited to a
small area within Baltimore County)” and that there
“is no statute  creating a ‘UMBC-Police
Department[.]'” (ECF No. 53, at 17). Defendants
argue that UMBCPD is “a unit of UMBC that is entitled
to partake in UMBC's immunity.” (ECF No. 63, at 8
n.2). According to the second amended complaint, UMBCPD is
“a security force maintained by Defendant UMBC”
and subject to the “supervisory power” of the
UMBC President. (ECF No. 21, at 17). Thus, even if UMBCPD is
not an instrumentality of the state, the degree of control
UMBC wields over it entitles it to immunity.
Defendants UMBC, BOR, UMBCPD and the individual University
Defendants in their official capacities will be dismissed.
State's Attorney Defendants
discussed above, individuals sued in their official capacity
as state agents are entitled to Eleventh Amendment immunity.
A State's Attorney is, by definition, a “State
Official.” Md. Code, Gen. Provisions §
5-101(ll)(5) (“‘State official' means. . . a
State's Attorney[.]”); see also Md. Code,
State Gov't § 12-101(a)(8) (“‘State
personnel' means. . . a State's Attorney of a county
or Baltimore City, or an employee of an office of a
State's Attorney[.]”). Plaintiffs' arguments to
the contrary - that State's Attorneys only act locally,
“Maryland has not obligated itself to reimburse
State's Attorneys for lawsuits against them[, ]” or
that “Maryland does not expressly consider State's
Attorneys and their employees arms of the State” - lack
proper support and do not overcome this definitional hurdle.
(ECF No. 52, at 13-16). Accordingly, the State's Attorney
Defendants in their official capacities will be dismissed.
Absolute Prosecutorial Immunity
State's Attorney Defendants argue that they are
“entitled to absolute immunity from suit for the
plaintiffs' claims that they engaged in unlawful
behavior, because the decision regarding whom to prosecute is
a core function of their roles as advocates for the
State.” (ECF No. 29-1, at 8). Plaintiffs insist that
the State's Attorney Defendants' actions were
“ultra vires, outside of the law, and they are
not entitled to . . . protection[.]” (ECF No. 52, at
17). Plaintiffs specifically allege the following conduct as
outside the realm of prosecutorial immunity:
“[d]estroying evidence, threatening victims, and
extra-territorial intimidation[.]” (Id., at
18). The State's Attorney Defendants do not respond to
Plaintiffs' argument against absolute immunity.
are absolutely immune from liability under § 1983 for
their conduct in ‘initiating a prosecution and in
presenting the State's case,' insofar as that conduct
is ‘intimately associated with the judicial phase of
the criminal process[.]'” Burns v. Reed,
500 U.S. 478, 486 (1991) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)) (internal
citations omitted). To determine whether particular actions
warrant absolute immunity, as opposed to only qualified
immunity, courts apply a “functional approach.”
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
This approach “looks to ‘the nature of the
function performed, not the identity of the actor who
performed it[.]'” Id. (quoting
Forrester v. White, 484 U.S. 219, 229 (1988)).
“[T]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the
function in question.” Burns, 500 U.S. at 486.
“The presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties.” Id. at 486-87.
State's Attorney Defendants fall short of showing that
their actions were prosecutorial in nature. These Defendants
merely argue that all of their actions “relate to the
exercise of a prosecutor's judgment about which cases to
prosecute and against which individuals, ” and make no
effort to differentiate the nature of the functions
performed. (ECF No. 29, at 10). Thus, they have not
established that they are entitled to absolute prosecutorial
County Defendants and the State's Attorney Defendants
argue that they are entitled to qualified immunity.
(See ECF Nos. 45-1, at 25-30; 29-1, at 12-16).
Qualified immunity is an affirmative defense to § 1983
claims that “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 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Assessing qualified immunity requires
a multi-step analysis with shifting burdens of proof.
“[T]he defendant bears the initial burden of
demonstrating that the conduct of which the plaintiff
complains falls within the scope of the defendant's
duties.” Henry v. Purnell, 501 F.3d 374, 377
n.2 (4th Cir. 2007) (citation and internal
quotation marks omitted). Once the defendant properly asserts
qualified immunity, “[t]he plaintiff bears the burden
of proof on the . . . question [of] whether a constitutional
violation occurred.” Id. at 377. If the
plaintiff meets ...