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Borkowski v. Baltimore County

United States District Court, D. Maryland

September 30, 2019

ANNA BORKOWSKI, et al.
v.
BALTIMORE COUNTY, MARYLAND, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently 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).

         Plaintiffs 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.

         The 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 Rule 105.6.

         I. Factual Background

         Unless 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).

         A. Marcella Fegler

         Plaintiffs 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. Fegler.” (Id.).

         Defendant 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).

         B. Katelyn Frank

         Plaintiff 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).

         C. Kaila Noland

         “On 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).

         D. Anna Borkowski and Annemarie Hendler

         Plaintiffs 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).

         “On 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.).

         “Ms. 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).

         “On 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 issues.

         II. Procedural Background

         Plaintiffs 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).

         All 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.

         Plaintiffs 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 other[]s['] civil rights and denying Plaintiffs['] and other[]s['] educational opportunities[;]” and an award “to Named Plaintiffs [of] reasonable costs and attorney[]s['] fees[.]” (ECF No. 21, at 133-134).

         III. Standard of Review

         A 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.

         “In 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)).

         University 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 consideration.

         IV. Analysis

         Plaintiffs' 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.

         A. Group Pleadings

         Plaintiffs 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.

         Defendants 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. 2008):

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)].

         Regardless, 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.[1]“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.

         B. The Baltimore County Police Department

         Defendants 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 Defendant.

         C. Eleventh Amendment Immunity[2]

         The 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).

         1. University Defendants

         The 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).

         “[T]he 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).

         Determining 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 state. Id.

         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.).

         The 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.

         Accordingly, Defendants UMBC, BOR, UMBCPD and the individual University Defendants in their official capacities will be dismissed.

         2. State's Attorney Defendants

         As 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.

         D. Absolute Prosecutorial Immunity

         The 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.

         “[P]rosecutors 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.

         The 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 immunity.

         E. Qualified Immunity

         The 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 ...


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