Borkowski v. Balt. Cnty.
| Citation | 492 F.Supp.3d 454 |
| Decision Date | 30 September 2020 |
| Docket Number | Civil Action No. DKC 18-2809 |
| Parties | Anna BORKOWSKI, et al. v. BALTIMORE COUNTY, MARYLAND, et al. |
| Court | U.S. District Court — District of Maryland |
Rignal Woodward Baldwin, V, Douglas B. Riley, BaldwinLaw LLC, Baltimore, MD, for Anna Borkowski.
Rignal Woodward Baldwin, V, BaldwinLaw LLC, Baltimore, MD, for Katelyn Frank, Marcella Fegler, Annemarie Hendler, Kaila Noland.
Christopher C. Dahl, Neil E. Duke, Laura Elizabeth Collins, Stuart R. Goldberg, Baker Donelson Bearman Caldwell & Berkowitz, PC, Baltimore, MD, for Maryland Baltimore County, Nicholas Tomas, Kristin Burrows, Kimberly Montgomery, Paul Dorfler, James Johnson, Terrence Sheridan, Rosemarie Brady, Timothy Lee.
Christopher C. Dahl, Neil E. Duke, Baker Donelson, Baltimore, MD, for Baltimore County Police Department, Morrow Lane.
Erik James Delfosse, Office of the Attorney General, Baltimore, MD, for The Board of Regents of the University System of Maryland, University of Maryland, Baltimore County, Freeman Hrabowski, III, University of Maryland Baltimore County Police Department, Mark Sparks.
Wendy L. Shiff, Office of the Attorney General, Baltimore, MD, for Lisa Dever, Scott Shellenberger, Bonnie Fox, Krystin Richardson.
Christopher Bowie Lord, Erik James Delfosse, Office of the Attorney General, Baltimore, MD, for Paul Dillon.
Clifford Bernard Geiger, Vincent P. Jackson, Kollman and Saucier PA, Timonium, MD, for Bernadette Hunton.
In an ultimately unsuccessful fourth attempt to craft a class action complaint, Plaintiffs devote more than 100 pages, nearly 800 numbered paragraphs, and more than 50 exhibits, in an overbroad, unfocused recitation of conclusory allegations, some masquerading as "facts." While Plaintiffs earnestly believe that the actions and "policies" of various authorities in Baltimore County and the University of Maryland, Baltimore County reveal a pattern of gender discrimination, their Third Amended Complaint fails to state a viable claim in all but one respect.
Presently pending and ready for resolution are four motions to dismiss filed by a Defendant or groups of Defendants: (1) Paul Dillon, Freeman Hrabowski, III, Mark Sparks, the University of Maryland, Baltimore County ("UMBC"), and the University of Maryland Baltimore County Police Department ("UMBCPD") (collectively "the University Defendants") (ECF No. 86); (2) Baltimore County Police Department ("BCPD"), Baltimore County, Maryland, and current or former police officers Rosemarie Brady, Kristin Burrows, Paul Dorfler, James Johnson, Morrow Lane, Timothy Lee, Kimberly Montgomery, Terrence Sheridan, and Nicholas Tomas (collectively "the County Defendants") (ECF No. 88); (3) Scott Shellenberger, Lisa Dever and Bonnie Fox of the State's Attorney's Office ("SAO") (collectively "SAO Defendants") (ECF No. 89); and (4) Bernadette Hunton (ECF No. 90). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, three of the motions will be granted, and one will be granted in part and denied in part.
Unless otherwise noted, the facts outlined here are either set forth in the operative complaint1 or evidenced by documents referenced and attached to the complaint. The facts are construed in the light most favorable to Plaintiffs.
The complaint revolves around the investigation and handling of four instances of alleged sexual assault made by five plaintiffs, Marcella Fegler ("Ms. Fegler"), Katelyn Frank ("Ms. Frank"), Kaila Noland ("Ms. Noland"), Anna Borkowski ("Ms. Borkowski"), and Annemarie Hendler ("Ms. Hendler").
Ms. Borkowski and Ms. Hendler are both residents of Maryland and former UMBC students. Ms. Hendler now attends Towson University. Both women state that, in the early morning hours of October 20, 2017, they were "gang-raped and repeatedly assaulted" by three men. Upon regaining consciousness, both Plaintiffs were in intense pain and, realizing what had occurred, reported the assault to the Towson University Police Department. They were sent to the Greater Baltimore Medical Center ("GBMC") for examination and treatment. At GBMC, a Sexual Assault Forensic Exam ("SAFE") exam was performed on Ms. Borkowski that showed "injuries consistent with sexual assault." Ms. Hendler similarly suffered from bleeding, soreness, swelling and abrasions. They both requested immediate police investigations.
They allege that they had to wait many hours after the assault before BCPD contacted them. Ms. Hendler met with Detectives Tomas and Burrows and signed a waiver declining further investigation. She again requested an investigation, however, eighteen minutes later. By midnight on October 21, 2017, Plaintiffs state, the case was "inexplicably closed and cleared by ‘exceptional circumstances.’ " Plaintiffs further state that BCPD ignored major pieces of evidence such as blood stains on the bed and a suspicious bottle of vodka. According to the complaint, the Investigative File shows that BCPD officers never visited the crime scene or collected evidence there. Further, witnesses were never interviewed and the Sexual Assault Examination Kits ("SAEK"), the sampling for which they consented, were never tested or entered into the police DNA database. After almost a month, in mid-November 2017, Detectives Borrows and Tomas conducted a joint interview of the three alleged assailants. "Sometime later," Detective Burrows recorded the report as "open" or "open suspended."
On March 14, 2018, Ms. Borkowski submitted sworn affidavits and an application for statements of charges with District Court Commissioner John Robey. Commissioner Robey then instructed her to wait in the hallway while he contacted Officer Montgomery and Mr. Dever. Officer Montgomery and Mr. Dever directed Commissioner Robey to deny the application for statements of charges. Commissioner Robey complied. The denied applications were forwarded to Baltimore County Administrative Commissioner Whitney Wisniewski.
That same day, sensing a failure fully to investigate her claims, Ms. Borkowski applied for a statement of charges against her assailants with District Court Commissioner John Robey. Her application was "swiftly" denied. On March 20, 2018, Ms. Borkowski again applied for a statement of charges before Commissioner Colleen Ellingson. After reviewing Ms. Borkowski's sworn statement, Commissioner Ellingson charged all three men with several crimes including first degree rape. On March 21, 2018, Detective Burrows learned that Ms. Borkowski had applied for these statements of charges. She subsequently, at the behest of the SAO Defendants, reached out to the "BCPD officer in charge" of serving the summonses and told him not to serve them. Detectives Burrows and Tomas also called Ms. Borkowski repeatedly and visited her Baltimore residence, and demanded of her grandmother to know where she was. The detectives also obtained her Towson class schedule. (ECF No. 81-24).
Ms. Borkowski alleges that the Defendants interfered with her right to apply for statements of charges. Specifically, the SAO Defendants ordered Detectives Burrows and Tomas to tell Ms. Borkowski to stop filing charges with the Commissioners or she would face criminal charges. (ECF No. 81-48). These efforts "effectively barred" Ms. Borkowski from applying for a statement of charges. The SAO Defendants alerted the attorney for the assailants and UMBC's Title IX coordinator that the charges against the alleged assailants were dropped. Ms. Borkowski, however, was not updated. Defendant Dever also expunged the alleged assailants’ criminal record, which Plaintiffs argue was ultra vires.
Ms. Fegler is also a resident of Maryland and a former UMBC student. On August 25, 2014, she went to a party near the UMBC campus where she encountered four members of the UMBC basketball2 team whom she knew. During the early morning of August 26, the players sexually assaulted her after she had consumed a large amount of alcohol. She awoke with no memory of what had occurred. Two of the four players reassured her that "nothing had happened" the night before. Two months later she learned from a fellow student that the players had sexually assaulted her while she was incapacitated.
Initially, Ms. Fegler raised her complaint about the incident to a student jury through the university's administrative proceedings. Due to the student body's general awareness of these proceedings, Ms. Fegler was subject to harassment by fellow students, particularly student athletes. She states that the school failed to protect her from such harassment. Ultimately, two of the players admitted to assaulting her but the other two continued to deny the incident. UMBC expelled the former but allowed the latter to remain in school. Ms. Fegler then transferred out of UMBC to avoid the continued harassment and contact with the two men still on campus. She continued to be harassed after transferring because UMBC basketball players told a player at her new school to "watch out for her, that she had faked a rape, and carried STD's [sic]."
Ms. Fegler also reported her sexual assaults to BCPD. Upon investigating, "Defendants Burrows and Tomas only interviewed three [ ] of the four [ ] assailants and "colluded" with counsel for the alleged assailants and "other UMBC officials" to "prematurely end the investigation and exonerate the four [ ] assailants." Officer Tomas stated that "in order for some of the sex acts," which Ms. Fegler could not remember, "to be performed, she would have had to be conscious to participate." Officer Tomas also offered to testify on behalf of the accused to the effect that they "were not involved as alleged." (ECF No. 81-51). In 2017, the County and the BCPD twice promised a "fresh review of sexual assault cases" like Ms. Fegler's, but never re-opened her case. (ECF Nos. 81-3, at 1-5)...
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