Borkowski v. Balt. Cnty.

• Citation: 414 F.Supp.3d 788
• Decision Date: 30 September 2019
• 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

414 F.Supp.3d 788

Anna BORKOWSKI, et al.

v.BALTIMORE COUNTY, MARYLAND, et al.

Civil Action No. DKC 18-2809

United States District Court, D. Maryland.

Filed September 30, 2019

Rignal Woodward Baldwin, V, Stephen Craig Rigg, BaldwinLaw LLC, Baltimore, MD, for Anna Borkowski, et al.

Christopher C. Dahl, Neil E. Duke, Baker Donelson, Erik James Delfosse, Wendy L. Shiff, Christopher Bowie Lord, Office of the Attorney General, Baltimore, MD, Clifford Bernard Geiger, Alexander P. Berg, Kollman and Saucier PA, for 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). Plaintiff...