Borkowski v. Balt. Cnty.

583 F.Supp.3d 687

Anna BORKOWSKI, et al.

v.BALTIMORE COUNTY, MARYLAND, et al.

Civil Action No. DKC 18-2809

United States District Court, D. Maryland.

Filed December 7, 2021

Rignal Woodward Baldwin, V, Douglas B. Riley, Baldwin | Seraina, LLC, Baltimore, MD, for Anna Borkowski.

Wendy L. Shiff, Office of the Attorney General, Baltimore, MD, for Lisa Dever, Scott Shellenberger, Bonnie Fox.

Alison Cate Schurick, Christopher C. Dahl, Neil E. Duke, Stuart R. Goldberg, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., Baltimore, MD, Laura Elizabeth Collins, United States Attorney's Office, Houston, TX, for Nicholas Tomas, Kristin Burrows.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

Presently pending and ready for resolution in this civil rights case is a motion for summary judgment filed by Defendants Scott Shellenberger, Lisa Dever, and Bonnie Fox of the State's Attorney's Office ("SAO") ("SAO Defendants") and Defendants Kristin Burrows and Nicholas Tomas ("Detective Defendants") (all collectively "Defendants"). (ECF No. 117). Accompanying the dispositive motion, Defendants filed two motions for leave to file audio and video exhibits, (ECF Nos. 116; 132) and two motions to seal and redact, (ECF Nos. 119; 134). Plaintiff Anna Borkowski also filed a motion to seal. (ECF No. 130). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants’ non-dispositive motions will be granted, Ms. Borkowski's motion to seal will be granted in part and denied in part, and Defendants’ motion for summary judgment will be denied.

I. Factual Background

This case began as a putative class action revolving around the investigation and handling of sexual assault allegations by various Baltimore County and University of Maryland affiliated entities and individuals. After two motions to dismiss, the sole remaining claim is one for First Amendment retaliation brought by Plaintiff Anna Borkowski against the remaining Defendants.

Ms. Borkowski's claim centers on Defendants’ response to her efforts in March 2018 to have her alleged rape charged and prosecuted. The alleged assault occurred over the night of October 19 and into the early morning hours of October 20, 2017. At the time, Ms. Borkowski was a 21-year-old student at Towson University ("Towson"). (ECF No. 117-5, at 13 (Borkowski Depo.)).¹ She and a friend met up for happy hour after classes. (Id. , at 19). They continued to drink throughout the evening and met up later with three men Ms. Borkowski had previously been classmates with. (Id. , at 21, 25-28). After drinking and dancing together, they went to her friend's apartment. (Id. , at 28-37). The men encouraged the women to continue drinking. (Id. , at 41-43, 50-51; ECF No. 117-8, at 6 (Incident Report)).

Ms. Borkowski remembers little of what happened next, and her friend has no memory of it, (ECF No. 117-48, at 13, 20-21 (Hendler Depo.)). As of her January 2021 deposition, Ms. Borkowski has only one brief memory of recognizing that two of the men were having sex with her while the third man had sex with her friend, who appeared to be passed out. (ECF No. 117-5, at 57-59, 67 (Borkowski Depo.)). In that moment, Ms. Borkowski "felt like [she] was paralyzed" and feared that she would be physically harmed by the men's actions. (Id. , at 53-54, 70). Ms. Borkowski does not have any memory of the men either threatening her with force or using force against her. (Id. , at 69). But both women were injured when they awoke the next day. (Id. , at 71; ECF No. 117-48, at 23 (Hendler Depo.)). Ms. Borkowski believes that her injuries were consistent with force being used to facilitate sex. (ECF No. 117-5, at 71-72). Ms. Borkowski and her friend immediately went to the police station to report the incident. (ECF No. 117-8, at 5 (Incident Report)). At that time, Ms. Borkowski also had a brief memory of sex with two men on the balcony. (Id. , at 7).

The State's Attorney's Office declined to bring charges. (ECF Nos. 117-5, at 105 (Borkowski Depo.); 117-18, at 87 (Burrows Depo.)). Ms. Borkowski was upset by the decision and spoke with multiple individuals about it in November and December, including Assistant State's Attorney Dever, Investigator Fox, and Detective Burrows. (See ECF No. 117-5, at 105-07, 111). Eventually, she decided she "wanted to give it another shot" by requesting that a District Court Commissioner charge her alleged assailants. (See id. , at 129). The Commissioners are "today's equivalent of a magistrate[.]" Sibley v. Doe , 227 Md.App. 645, 657, 135 A.3d 883 (2016) (quotation omitted). They receive sworn applications for charges and determine whether there is probable cause to issue them. Md. Code Ann., Cts. & Jud. Proc. § 2-607(c)(1) ; Md.R.Cr. 4-211(b)(1). State's Attorneys may, however, terminate or dismiss a charge by entering a nolle prosequi. Md.R.Cr. 4-247(a).

In March 2020, Ms. Borkowski filed two applications with different Commissioners. (ECF Nos. 117-21; 117-22). She believed that charges would issue and hoped that a prosecution would ensue. (ECF No. 117-5, at 130-31 (Borkowski Depo.)). Defendants, however, viewed Ms. Borkowski's attempts to apply for charges as futile, because they would move to dismiss any charges unless Ms. Borkowski had new evidence. (See, e.g. , ECF No. 117-20, at 67 (Dever Depo.)). There is no evidence, however, that Defendants told Ms. Borkowski this fact. (See id. , at 68-70).

The first application was denied after the Commissioner consulted with Assistant State's Attorney Dever. (ECF No. 117-20, at 53-55). After obtaining representation, Ms. Borkowski added more detail to her second application, including citing to Maryland's first-degree rape statute. (Compare ECF No. 117-21, with ECF No. 117-22; see also ECF No. 117-45, at 4:57-5:18 (Greenberg Interview)). Both applications alleged, however, that the assailants had sex with Ms. Borkowski "by force." (Id. ). On March 20, the second application was approved and charges were issued against all three alleged assailants for various offenses, including first-degree rape. (ECF No. 117-23).

Assistant State's Attorney Dever described her reaction to the charges as follows: "I was very upset.... I wanted to try and communicate somehow that she needed to stop going to the Commissioner's Office[.]" (ECF No. 117-20, at 67-68 (Dever Depo.)).² She consulted with State's Attorney Shellenberger and he instructed Ms. Dever to have detectives speak with Ms. Borkowski. (ECF No. 117-24, at 12-13, 24-25 (Shellenberger Depo.)). They wanted an in-person meeting despite having Ms. Borkowski's contact information and knowing that she had an attorney. (ECF Nos. 117-27, at 30 (Fox Depo.); 117-24, at 83 (Shellenberger Depo.); 117-20, at 57 (Dever Depo.); 117-15, at 2 (Burrows Notes)). On Ms. Dever's instructions, Investigator Fox asked Detective Burrows "to go talk to Ms. Borkowski, and talk[ ] to her about no further charges. ... [In other words,] asking her not to go to another Commissioner or go to the Commissioner to seek charges again." (ECF No. 117-27, at 28-30). Detective Burrows’ notes may suggest she believed that she was to tell Ms. Borkowski that she needed to "stop going to comm[issioner]" and that, if she didn't, Ms. Borkowski faced a "civil lawsuit or worse[,] criminal charges[.]" (ECF No. 117-15, at 2). Separately, Defendants subpoenaed Ms. Borkowski's first application and intercepted the summons for her second. (ECF No. 117-18, at 47-50, 61-62, 100-01 (Burrows Depo.); 117-14 (Subpoena)).

On March 22, Detectives Burrows and Tomas obtained Ms. Borkowski's class schedule and went with an armed and uniformed county police officer to Ms. Borkowski's home in Baltimore City at a time she was not supposed to be in class. (ECF Nos. 117-19, at 57 (Tomas Depo.); 117-25, at 8 (Dorfler Depo.)). The officer had never before been asked to accompany or escort county detectives in Baltimore City, nor has he since. (ECF No. 117-25, at 11, 21). Ms. Borkowski's grandmother answered the door. (ECF No. 117-3 (Body Worn Camera Footage); see also ECF No. 117-4 (Gonzalez Depo.)). The officer told her she was being recorded and Detective Burrows proceeded to ask her questions about Ms. Borkowski's whereabouts. (Id. ). The encounter lasted less than two-and-a-half minutes. (Id. ). The detectives stated that they wanted to speak with Ms. Borkowski about charges she had filed and did not elaborate further. (Id. ). Ms. Borkowski learned about the encounter from her grandmother later that day. (ECF No. 117-5, at 153, 240-41 (Borkowski Depo.)).

Detective Tomas then called Ms. Borkowski twice, exchanged voicemails with her, but did not speak with her directly. (ECF No. 117-19, at 49 (Tomas Depo.); ECF No. 117-16, at 2 (Tomas Notes); ECF No. 117-5, at 152-53, 155-56 (Borkowski Depo.)). After speaking with Ms. Borkowski's lawyer, he and Detective Burrows informed the SAO Defendants that Ms. Borkowski would only speak to them with her attorney present. (ECF No. 117-19, at 49). State's Attorney Shellenberger then decided "that was the end of it." (ECF No. 117-24, at 26-28 (Shellenberger Depo.)). Defendants concluded that "there was now a lawyer involved, and so [they] did not feel like [a] meeting had any purpose." (Id. , at 28). At no time did Defendants explicitly deliver the message to Ms. Borkowski that she should stop filing charges. (ECF Nos. 117-19, at 134-35); 117-5, at 158-59). They successfully dismissed the charges over Ms. Borkowski's objections, however. (ECF No. 117-20, at 123 (Dever Depo.); see, e.g. , ECF Nos. 117-28, 117-31 (Motion to Vacate Dismissal and Denial).

II. Procedural Background

This lawsuit commenced in September 2018. The third amended complaint was filed in December 2019. (ECF No. 81). All of the claims but Ms. Borkowski's remaining First Amendment retaliation claim against Defendants were dismissed in September 2020. (ECF Nos. 103; 104). Ms. Borkowski's...