Olekanma v. Wolfe et al

Filing 66

MEMORANDUM OPINION (c/m to Plaintiff 3/1/17 sat). Signed by Judge Deborah K. Chasanow on 3/1/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SAMUEL OLEKANMA
:
v.

:

Civil Action No.

DKC 15-0984

:
JOHN S. WOLFE, Warden, Jessup
Correctional Facility, et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

workplace harassment action are: (1) a motion to dismiss filed
by Defendants John S. Wolfe, Casey Campbell, Allen Gang, Glynis
Watford, Genice Fowler, Agboha Augustine, Fekoya Foluso, Kevin
Hight,

Oduazu

Ike,

Joseph

Suggs,

Edward

Burl,

Uzoma

Swen,

Imoemiye

Godspower,

Olufemi,

Tamisha

Shalawanda

Forbes,

Charles

Frank, Paul Ogordi, Emilike Sunday, Judith Hendric Jones, Ajose
Ganiyat, Oloku Olatunbosun, Omolaja Francis, Ugo Ignes, Onanuga
Endurance,

M.

Fields,

Robinson

Abner,

Falope

Mofoluwaso,

and

Okunade Adeniyi (together, the “State Defendants”) (ECF No. 52);
(2)

a

Sources

motion

to

dismiss

Incorporated

filed

(“Wexford”)

by

Defendant

(ECF

No.

Wexford

31);

a

Health

motion

to

strike the surreply of Plaintiff Samuel Olekanma (“Plaintiff”),
filed by Wexford (ECF No. 51); a motion to disqualify opposing
counsel filed by Plaintiff (ECF No. 55); Plaintiff’s application
for injunctive relief (ECF No. 56); and Plaintiff’s motion for

default judgment (ECF No. 59).

The issues have been briefed,

and the court now rules, no hearing being deemed necessary.
Local

Rule

105.6.

For

the

following

reasons,

the

State

Defendants’ motion to dismiss will be denied as to Defendant
Wolfe and granted as to all other State Defendants, Wexford’s
motion to dismiss will be granted, Wexford’s motion to strike
Plaintiff’s surreply will be granted, and Plaintiff’s motions
will be denied.
I.

Background1
At all relevant times, Plaintiff has been employed by the

Maryland Department of Public Safety and Correctional Services
(“MDPSCS”) as a corrections officer at the Jessup Correctional
Institution (“JCI”).

(ECF No. 30, at 6, 10).

Plaintiff alleges

that Electa Awanga, a female nurse employed by Wexford at JCI,
repeatedly

sexually

harassed

(ECF No. 4, at 2, 6).2

him

beginning

in

November

2014.

According to Plaintiff, “[t]his sexual

[h]arassment was brought to the attention of the supervisors and
appointed

authorities

.

.

.

but

they

failed

to

remove

[P]laintiff from the abusive condition on time which resulted in
1

Unless otherwise noted, the facts outlined here are set
forth in the second amended complaint and construed in the light
most favorable to Plaintiff for the purpose of Defendants’
motions to dismiss.
2

The first amended complaint, which Plaintiff incorporated
by reference into the second amended complaint (ECF No. 30, at
9), contains a lengthy recitation of facts surrounding the
purported harassment and retaliation. (See ECF No. 4, at 6-13).
2

further sexual harassment and abuse.”
alleges

that

he

reported

the

(Id. ¶ 1).

harassment

to

his

Plaintiff

supervisors,

Defendants Wolfe, Campbell, and Gang, but they “were [] absent
or on vacation at the time of the complaint which is a violation
of policy and procedure that resulted in . . . continued sexual
harassment.”
[he]

took

(Id. ¶ 2).

the

matter

Furthermore, he maintains that “[w]hen
to

.

.

.

[Maryland

Equal

Employment

Opportunity Coordinator Glynis Watford, she] further harassed
[P]laintiff

by

intimidating

[him].”

(Id.

¶

4).

After

he

complained about the sexual harassment, Plaintiff allegedly was
moved away from his work area, and other JCI employees filed
complaints against him. (Id. at 11-12).

Plaintiff also asserts

that Defendant Wexford employs Ms. Awanga and “failed to act or
do anything about [his] complaint” of harassment.

(Id. ¶ 5).

Plaintiff, proceeding pro se, filed a complaint in this
court against MDPSCS on April 6, 2015.

(ECF No. 1).

Shortly

thereafter, the court found the complaint to be insufficient
under federal pleading standards and granted him twenty-eight
days to file an amended complaint.

(ECF No. 3).

On May 6,

Plaintiff filed an amended complaint against Defendant Wexford
and

Defendants

Wolfe,

official capacities.

Campbell,

Gang,

(ECF No. 4).3

3

and

Watford,

in

their

Plaintiff’s first amended

Although Plaintiff did not designate Defendant Watford in
her official capacity, he identifies her full job title in the
3

complaint asserted claims under: 18 U.S.C. § 1346 (definition of
a criminal “scheme or artifice to defraud”) (Count I); 18 U.S.C.
§ 242 (criminal deprivation of rights under color of law) (Count
II); 31 C.F.R. § 0.208 (employee rules of conduct for the United
States Department of the Treasury) (Count III);4 18 U.S.C. § 241
(criminal deprivation of rights by conspiracy) (Count IV); and
18 U.S.C. § 3 (criminal accessory after the fact) (Count V).
Defendant

Wexford

and

Defendants

Wolfe,

Campbell,

Gang,

and

Watford filed motions to dismiss the amended complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim.
10; 21).

(ECF Nos.

The court granted those motions to dismiss because, as

a private citizen, Plaintiff lacked standing to bring suit under
the criminal statutes and Treasury regulations that he cited in
the various counts of the complaint.

(ECF No. 25, at 7-8).

Although Plaintiff did not purport to bring his case under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e,

et

seq.,

the

court

liberally

construed

his

pro

se

complaint to assert claims of sexual harassment and retaliation.
(Id. at 8).

The court dismissed those claims, however, because

caption like the other State Defendants named in the first
amended complaint. Therefore, the court presumes that Plaintiff
sought to sue her in her official capacity. For the reasons set
forth below, Ms. Watford is not liable in her individual or
official capacity, so this distinction is immaterial here.
4

Plaintiff mistakenly pleaded a violation of 31 U.S.C. §
0.208, which does not exist.
4

Plaintiff

had

administrative

not

alleged

remedies

and

that

he

because

had

he

had

exhausted
sued

his

individual

employees and supervisors rather than his employer, as defined
by Title VII.
After

(Id. at 8-11).5

being

granted

leave

to

amend,

second amended complaint on March 22, 2016.

Plaintiff

filed

(ECF No. 30).

a

The

second amended complaint incorporates all allegations contained
in his prior pleadings, names twenty-eight additional individual
defendants (together with Wexford, Wolfe, Campbell, Gang, and
Watford, “Defendants”), and asserts claims under Title VII; the
Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A; the whistleblower
protections under the Dodd-Frank Act (“Dodd-Frank”), 15 U.S.C. §
78u–6(h)(1)(A); and 18 U.S.C. § 242.6

(Id. at 6-7, 10-12).

Plaintiff also sought appointment of counsel, which the court
denied because Plaintiff had not sought to proceed
pauperis when filing his complaint.

in forma

(ECF No. 35, at 4-5).

Wexford filed its pending motion to dismiss on March 28,
2016.

(ECF No. 31).

The State Defendants’ pending motion to

dismiss was filed on July 26, 2016.

(ECF No. 52).7

Plaintiff

5

As discussed below, although it did not affect the outcome
of the motion to dismiss, part of the court’s Title VII
“employer” analysis was erroneous.
6

Plaintiff improperly labels this claim “Fraud.”

7

Several State Defendants originally filed a motion to
dismiss on April 1, 2016. (ECF No. 33). As Plaintiff added and
5

has responded to both motions.

(ECF Nos. 36; 57).

Wexford

replied on April 25 (ECF No. 38), and Plaintiff filed a surreply
on

July

18

(ECF

No.

Plaintiff’s surreply.

50).

Wexford

(ECF No. 51).

then

moved

to

strike

Plaintiff responded to

that motion (ECF No. 54), and Wexford replied (ECF No. 58).
Plaintiff

filed

his

pending

motions

to

disqualify

opposing

counsel Lisa Arnquist (ECF No. 55), for injunctive relief (ECF
No. 56), and for default judgment against all Defendants except
Wexford (ECF No. 59) in August 2016.

Wexford and the State

Defendants filed separate responses to Plaintiff’s motion for
default judgment (ECF Nos. 60; 61), and Plaintiff replied to
each of those filings (ECF Nos. 64; 65).
II.

Motions to Dismiss
A.

Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”

Bell Atl. Corp. v. Twombly, 550 U.S.

served more State Defendants, they filed new motions making the
same arguments, but including the newly added Defendants. (ECF
Nos. 44; 52).
6

544, 555 n.3 (2007).

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At

this

stage,

all

well-pleaded

allegations

in

the

complaint must be considered as true, Albright v. Oliver, 510
U.S.

266,

268

(1994),

and

all

factual

allegations

must

construed in the light most favorable to the plaintiff.

be
See

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993)); Brockington v. Boykins, 637 F.3d
503,

505-06

(4th

Cir.

2011).

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).
conclusions

couched

as

factual

allegations

are

Legal

insufficient,

Iqbal, 556 U.S. at 678, as are conclusory factual allegations
devoid

of

any

reference

to

actual

events.

United

Black

Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see
also Francis v. Giacomelli, 588 F.3d 186, 192 (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.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a
7

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

court

experience and common sense.”
Generally,

pro

se

to

draw

on

its

judicial

Id.

pleadings

are

liberally

construed

and

held to a less stringent standard than pleadings drafted by
lawyers.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).

Liberal construction means that the

court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).

Barnett v. Hargett, 174 F.3d

That is, even when pro se litigants

are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.

Weller v. Dep’t of Soc.

Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,

2012

WL

6087491,

at

*3

(D.Md.

Dec.

4,

2012)

(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
B.

Analysis

1.

Non-Title VII Claims

In

the

second

amended

complaint,

Plaintiff

violations of SOX and Dodd-Frank for the first time.
8

alleges

(Id. at 6-

7,

10-12).

SOX

companies

by

employees

who

protects

prohibiting
have

illegal conduct.

whistleblowers
employers

provided

of

from

publicly

retaliating

information

about

traded
against

potentially

18 U.S.C. § 1514A(a); Welch v. Chao, 536 F.3d

269, 275 (4th Cir. 2008).

Dodd-Frank “encourages individuals to

provide information relating to a violation of securities laws
to the Securities and Exchange Commission” (“SEC”) by protecting
whistleblowers

from

retaliatory

actions

by

their

employers.

Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 622–23 (5th Cir.
2013); see 15 U.S.C. § 78u-6.

Here, there is no assertion that

Plaintiff’s employer – a state agency - is a publicly traded
company.

Nor

information

to

is
the

there
SEC.

any

allegation

Accordingly,

that

these

he

reported

claims

will

be

dismissed.
Plaintiff’s second amended complaint also makes references
to

extortion,

alleged

any

defrauded him.

prostitution,
facts

and

indicating

fraud.
that

any

Plaintiff
of

the

has

not

Defendants

Although Plaintiff labels one of his causes of

action “Fraud,” it simply quotes the text of 18 U.S.C. § 242.
As previously held (ECF No. 25, at 7-8), Plaintiff does not have
standing to bring a private civil action under 18 U.S.C. § 242,
a criminal statute, see Fromal v. Lake Monticelle Owners’ Ass’n,
Inc., No. 3:05-CV-00067, 2006 WL 167894, at *1-2 (W.D.Va. Jan.
23, 2006) (determining that 18 U.S.C. §§ 241 and 242 and 18
9

U.S.C.

§

1341

are

criminal

statutes

that

do

not

provide

a

private right of action), aff’d, 223 F.App’x 203 (4th Cir. 2007).
Plaintiff also does not have a private cause of action for the
alleged prostitution or extortion.8
intends

to

racketeering

allege

prostitution

scheme.

Although

It appears that Plaintiff

and
he

extortion
mentions

as

part

racketeering

of

a

only

generally in his second amended complaint (see ECF No. 30, at 7,
8, 13), he argues in opposition to the motions to dismiss that
Defendants

violated

the

Racketeer

Influenced

and

Corrupt

Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (see ECF Nos.
36, at 7-8; 57, at 2-3, 14-21).9

Even construing his complaint

liberally, Plaintiff has not alleged sufficient facts to plead a
RICO claim.

To state a claim for a substantive violation of

RICO, the complaint must set forth facts which, if proven, would
establish

“(1)

conduct

(2)

of

an

enterprise

pattern (4) of racketeering activity.”

(3)

through

a

Morley v. Cohen, 888

F.2d 1006, 1009 (4th Cir. 1989) (quoting Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 (1985)).

“Racketeering activity”

8

Plaintiff states, without further explanation, that a
“supervisory employee of this agency” extorted more than $10,000
from him.
(ECF No. 30, at 4).
Without more facts, this
statement is insufficient to plead any potential private action
based on the alleged extortion.
9

The civil action provision of RICO, § 1964, provides a
cause of action to “[a]ny person injured in his business or
property” by, inter alia, racketeering activity. See 18 U.S.C.
§§ 1964(c), 1962.
10

is

defined

by

reference

to

§

1961

as

“any

act

which

is

indictable” under a lengthy, but enumerated, list of criminal
provisions.
facts

18 U.S.C. § 1961(1).

relating

only

to

sexual

Plaintiff’s complaint alleges
harassment

neither of which is enumerated in § 1961.10

and

prostitution,

Therefore, his RICO

claim will also be dismissed.
Finally, in his opposition to the State Defendants’ motion
to dismiss, Plaintiff raises general allegations of fraud (see,
e.g., ECF No. 36, at 8), violations of 42 U.S.C. §§ 1983, 1985,
and 1986 (ECF No. 57, at 12), and claims under assorted other
statutes

(Id.

at

14-21).11

Although

the

court

previously

10

In his opposition, Plaintiff cites to a wide array of
racketeering activities that he considers the “predicate acts”
to his RICO case. Among these criminal provisions are sections
of Title 18 of the U.S. Code related to mail fraud (1341),
financial institution fraud (1344), obstructing justice, law
enforcement,
and
criminal
investigations
(1503,
1510-11),
tampering with or retaliating against criminal witnesses,
victims,
or
informants
(1512-13),
peonage,
slavery,
and
trafficking in persons (1581-88), interstate transport of stolen
property (2315), criminal copyright infringement (2319), and
trafficking in goods bearing counterfeit marks (2320). (ECF No.
57, at 3).
He also argues that drugs and paraphernalia are
being trafficked in the prison system.
(ECF No. 36, at 5).
Plaintiff has not pleaded any facts to support any of these
purported criminal violations.
11

In each of ten separate “claim[s] for relief” included in
his opposition to the State Defendants’ motion to dismiss,
Plaintiff cites to 18 U.S.C. §§ 2 and 371, 42 U.S.C. §§ 1320a7b(b)(1) and (b)(2), and 21 U.S.C. §§ 331(T) and 333(b).
(ECF
No. 57, at 14-21).
He also makes references to various civil
rights statutes including 42 U.S.C. §§ 1981, 1981A, and 1988.
(Id.). To the degree that any of these causes of action may be
applicable, they were not pleaded in Plaintiff’s complaints.
11

directed Plaintiff to provide facts related to such claims in
his amended pleadings, he made no reference to these claims in
his

second

amended

complaint.

“[I]t

is

axiomatic

that

the

complaint may not be amended by the briefs in opposition to a
motion

to

dismiss.”

Mylan

Labs.,

Inc.

v.

Akzo,

N.V.,

770

F.Supp. 1053, 1068 (D.Md. 1991) (quoting Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)); see Zachair Ltd.
v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (stating that
the plaintiff “is bound by the allegations contained in its
complaint and cannot, through the use of motion briefs, amend
the complaint”), aff’d, 141 F.3d 1162 (4th Cir. 1998).

These

claims will be dismissed.
2.

Title VII Claims

a.

Plaintiff’s Employer Under Title VII

Plaintiff’s

Title

VII

claims

for

sexual

harassment

and

retaliation were previously dismissed because, inter alia, the
Defendants he had identified were not his employer under Title
VII (ECF No. 25, at 8-9), and Title VII “do[es] not provide for
causes

of

capacities.”

action

against

defendants

in

their

individual

Jones v. Sternheimer, 387 F.App’x 366, 368 (4th

Cir. 2010) (citing Baird ex rel. Baird v. Rose, 192 F.3d 462,
472 (4th Cir. 1999)); Lissau v. S. Food Serv., Inc., 159 F.3d
177, 180 (4th Cir. 1998) (“[S]upervisors are not liable in their
individual capacities for Title VII violations.”).
12

The opinion

explained that because Plaintiff alleges that he was employed by
MDPSCS and JCI (ECF No. 30, at 6, 10), he can only bring a claim
under

Title

entities

VII

(see

erroneously

against

ECF

found

MDPSCS,

JCI,

Nos.

25,

9;

that

Plaintiff

at

or

the

35,
had

at
not

heads

named

those

The

2).

of

court

any

such

defendants, even though he had named Defendant Wolfe in his
official

capacity

as

Warden

of

JCI

in

his

first

amended

complaint and had named MDPSCS in the original complaint.
Nos. 4; 30).

(ECF

A Title VII claim may be brought against a prison

warden in his official capacity.

See, e.g., Fisher v. Md. Dep’t

of Pub. Safety & Corr. Svcs., No. JFM-10-0206, 2010 WL 2732334,
at *4 (D.Md. July 8, 2010) (addressing a Title VII claim against
MDPSCS and a warden in his official capacity),

Booth v. Md.

Dep’t of Pub. Safety & Corr. Svcs., No. RDB-05-1972, 2008 WL
2484937, at *9-*10 (D.Md. June 18, 2008), aff’d, 337 F.App’x
301, 310-311 (4th Cir. 2009) (same); see also Wilson v. Dimario,
139 F.3d 897 (4th Cir. 1998) (unpublished table opinion) (“[T]he
department or agency head is the only proper defendant in cases
alleging a violation of Title VII.”).

Furthermore, Plaintiff

originally filed his suit against MDPSCS (ECF No. 1), and the
clerk terminated the agency as a Defendant when he failed to
include it as a named defendant in his first amended complaint
(ECF No. 5).

Because MDPSCS was originally named, it should be

13

reinstated in spite of its absence from the first and second
amended complaints.12
Plaintiff does not, however, allege that Wexford is or ever
was his employer.
are

not

Similarly, all of the other State Defendants

Plaintiff’s

employer

for

Title

VII

purposes.

Accordingly, both motions to dismiss will be granted as to all
named

Defendants

other

than

Defendant

Wolfe.

Moreover,

the

other individual Defendants who have not yet moved for dismissal
are

similarly

not

Plaintiff’s

employers

under

Title

VII.13

Because Plaintiff’s only pleaded cause of action – his Title VII
claim – cannot be sustained against any of these Defendants, he
has failed to plead a viable claim against them, and his claim
will be dismissed as to them as well.
b.

Defendant Wolfe’s Motion to Dismiss

Plaintiff’s Title VII claims were also dismissed in the
court’s prior opinion because he had failed to allege facts
demonstrating exhaustion of his administrative remedies, which
is a jurisdictional bar.

(ECF No. 25, at 9-11).

Plaintiff has

now alleged that he filed an EEOC charge and was issued a right
12

The file does not reflect that MDPSCS was served in this
case.
Counsel will be directed to notify the court whether
formal service is necessary.
13

Defendants Robert Davis, Akinyosoye Adewale, Manning
Octavia, and Thembisa Mkhize have not moved to dismiss or filed
any appearances in this case, and it is unclear whether they
were all properly served.
The complaint does not make any
specific allegations related to these individuals.
14

to sue letter in March 2016.
it

appears

that

Plaintiff

(ECF Nos. 30-1; 30-2).
originally

filed

his

Although

suit

before

exhausting his administrative remedies, courts have allowed a
plaintiff who has met his exhaustion requirement under Title VII
during the pendency of the suit to move forward.
Balog,

929

F.Supp.

900,

908

(D.Md.

1996)

See Causey v.

(“Although

[the

plaintiff] initially filed claims related to his [] EEOC charge
too soon (and defendants accordingly could have moved to dismiss
these claims at any time from . . . when this suit was filed,
until [the date the right to sue letter was received]), ‘[h]ere
.

.

.

entitled

the

proper

to,

and

time
has

has
in

arrived[,]

fact

for

received,

the
a

plaintiff

“right

to

is

sue”

notice.’”) (quoting Soble v. Univ. of Md., 572 F.Supp. 1509,
1517 (D.Md. 1983)); Soble, 572 F.Supp. at 1517 (denying a motion
to dismiss where a Title VII complaint that would be dismissed
for failure to exhaust administrative remedies at the time of
the complaint could be refiled because the right to sue letter
had been issued during the district court action).

Here, where

Plaintiff filed his second amended complaint after being issued
his right to sue letters, he has alleged exhaustion.
Plaintiff claims harassment on the basis of sex, leading to
a hostile work environment, a form of prohibited discrimination
under Title VII.
57, 66–77 (1986).

See Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
To establish a prima facie case, Plaintiff
15

must show that: (1) he was subjected to unwelcome conduct; (2)
the unwelcome conduct was based on sex; (3) the conduct was
sufficiently

pervasive

or

severe

to

alter

the

conditions

of

employment and create a hostile work environment; and (4) some
basis exists for imputing liability to the employer.

See Smith

v. First Union Nat’l Bank, 202 F.3d 234, 241–42 (4th Cir. 2000).
Plaintiff has alleged that Ms. Awanga sexually harassed him by
engaging in a variety of unwelcome acts, including brushing up
against
making

him,

joking

derogatory

about

having

statements

sexual

about

Plaintiff’s

anatomy, and exposing her breasts to him.
10).

He

also

alleges

that

Ms.

relations

with

sex

him,

life

and

(ECF No. 4, at 6, 9,

Awanga

and

several

other

employees at JCI are engaging in prostitution at the workplace.
(Id. at 7-8).

Plaintiff has alleged that he has repeatedly

notified his supervisors of this conduct, but that they have
condoned or ignored the alleged acts.

(Id. at 9, 11-12).

His

complaint therefore appears to be sufficient.
To establish a prima facie case of retaliation, Plaintiff
ultimately will have to show that: (1) he engaged in a protected
activity; (2) in response, his employer acted adversely against
him; and (3) the protected activity was causally connected to
the adverse action.

Fordyce v. Prince George’s Cty. Md., 43

F.Supp.3d 537, 547 (D.Md. 2014) (citing Holland v. Washington
Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)).
16

“An adverse

employment

action

is

a

discriminatory

act

which

adversely

affect[s] the terms, conditions, or benefits’ of the plaintiff’s
employment.”

James v. Booz-Allen & Hamilton, Inc., 368 F.3d

371, 375 (4th Cir. 2004) (internal quotation marks omitted).
be

a

materially

actions

must

be

adverse
harmful

employment
to

the

action,

point

that

the
they

To

“employer’s
could

well

dissuade a reasonable worker from making or supporting a charge
of discrimination.”

Burlington N. & Santa Fe Ry. Co v. White,

548

(2006)

U.S.

alleged

53,
that

67-68
his

(emphasis

reporting

of

the

added).

sexual

Plaintiff

harassment

led

has
to

complaints being filed against him and to him being moved to a
different work area in a different building.
12).

(ECF No. 4, at 11-

Plaintiff’s complaint thus also appears to plead a claim

for retaliation.
In the State Defendants’ motion to dismiss, Defendant Wolfe
–

as

a

State

Defendant

-

challenged

the

sufficiency

Plaintiff’s complaint under Fed.R.Civ.P. 8(a) and 12(b)(6).

of
The

State Defendants failed to address any specific elements of a
claim for hostile work environment or retaliation beyond who
constituted Plaintiff’s employer under Title VII.
recognizes
arguments

that
they

the
put

State
forth

Defendants
in

light

of

may
the

have

The court
limited

court’s

holding that they were not Plaintiff’s employer.

the

previous

Therefore,

their motion to dismiss will be denied as to Defendant Wolfe
17

without

prejudice

to

raising

any

appropriate

defenses

in

a

further motion to dismiss or for summary judgment.
III. Other Pending Motions
A.

Wexford’s Motion to Strike Surreply

Without seeking leave, Plaintiff has also filed a surreply
to Wexford’s motion to dismiss, labelled as a “motion to dismiss
defendants[’] motion.”

(ECF No. 50).

the surreply. (ECF No. 51).

Wexford moved to strike

Local Rule 105.2(a) states that

“[u]nless otherwise ordered by the Court, surreply memoranda are
not permitted to be filed.”

A surreply may be permitted “when

the moving party would be unable to contest matters presented to
the court for the first time in the opposing party’s reply.”
Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citation
omitted).

By contrast, “[a] motion for leave to file a surreply

may be denied when the matter addressed in the reply is not
new.”

Marshall v. Capital View Mut. Homes, No. RWT–12–3109,

2013 WL 3353752, at *3 (D.Md. July 2, 2013) (citation omitted).
Wexford did not raise new arguments in its reply.

Therefore,

Wexford’s motion to strike will be granted.
B.

Plaintiff’s Motion to Disqualify Opposing Counsel

Plaintiff has filed a motion to disqualify opposing counsel
Lisa Arnquist.

(ECF No. 55).

He contends that because she

represented Defendant Wolfe in another case between Plaintiff
and Defendant Wolfe, she should not be permitted to represent
18

the State Defendants here.

(Id. at 5, 6).

Plaintiff maintains

that Ms. Arnquist is likely to testify on behalf of Defendant
Wolfe,

that

her

representation

will

impropriety,

and

that

be

she

will

(Id.).14

privileged information.

give
in

a

the

appearance

position

to

of

misuse

Plaintiff misconstrues the

rules of professional responsibility and Ms. Arnquist’s role in
the two cases.

There is no reason to think that she will

testify in this case, and her prior representation of Defendant
Wolfe does not create any apparent issues related to privilege
or conflict of interest.
C.

Plaintiff’s motion will be denied.

Plaintiff’s Application for Injunctive Relief

Plaintiff

also

moved

Hejirika as Warden of JCI.

the

court

to

re-instate

(ECF No. 56, at 5).

Solomon
Plaintiff

contends that Mr. Hejirika was fired for making contact with
him.

(Id.).

Plaintiff has no standing to bring an action on

behalf of Mr. Hejirika, who is not a party to this case.

This

application for injunctive relief will therefore be denied.
D.

Plaintiff’s Motion for Default

Finally, Plaintiff moved for default judgment against all
Defendants except Wexford.

(ECF No. 59).

Under Federal Rule of

Civil Procedure 55(a), “[w]hen a party against whom a judgment
for

affirmative

relief

is

sought

14

has

failed

to

plead

or

Plaintiff also makes an unintelligible argument related
to the National Labor Relations Act. (ECF No. 55, at 7-9).
19

otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.”

By filing

motions to dismiss under Fed.R.Civ.P. 12, Wexford and the State
Defendants
pleadings

have
are

altered

due.

the

times

Fed.R.Civ.P.

in

which

their

12(a)(4).

responsive

Even

for

those

Defendants who have not filed Rule 12 motions, entry of default
would mean only that “the well-pled allegations in a complaint
as to liability are taken as true,” S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 422 (D.Md. 2005), and it would remain “for the
court

to

allegations

determine

whether

constitute

a

these

legitimate

unchallenged

cause

of

factual

action,”

Agora

Fin., LLC v. Samler, 725 F.Supp.2d 491, 494 (D.Md. 2010) (citing
Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780-81 (4th Cir.
2001) (affirming that acceptance of the facts in the complaint
“does

not

sought”)).

necessarily

entitle

the

[plaintiff]

to

the

relief

Because Plaintiff has failed properly to plead any

of his claims against these Defendants, any default against them
is mooted by the dismissal of his complaint against them here.
IV.

Conclusion
For the foregoing reasons, the State Defendants’ motion to

dismiss will be denied as to Defendant Wolfe and granted as to
all other State Defendants, Wexford’s motion to dismiss will be
granted, Wexford’s motion to strike Plaintiff’s surreply will be

20

granted, and Plaintiff’s motions will be denied.

A separate

order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

21