Olekanma v. Wolfe et al
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
Civil Action No.
JOHN S. WOLFE, Warden, Jessup
Correctional Facility, et al.
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
Frank, Paul Ogordi, Emilike Sunday, Judith Hendric Jones, Ajose
Ganiyat, Oloku Olatunbosun, Omolaja Francis, Ugo Ignes, Onanuga
Okunade Adeniyi (together, the “State Defendants”) (ECF No. 52);
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.
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.
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
(ECF No. 30, at 6, 10).
that Electa Awanga, a female nurse employed by Wexford at JCI,
(ECF No. 4, at 2, 6).2
According to Plaintiff, “[t]his sexual
[h]arassment was brought to the attention of the supervisors and
[P]laintiff from the abusive condition on time which resulted in
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.
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).
further sexual harassment and abuse.”
(Id. ¶ 1).
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
(Id. ¶ 2).
Furthermore, he maintains that “[w]hen
Opportunity Coordinator Glynis Watford, she] further harassed
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).
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
(ECF No. 4).3
Plaintiff’s first amended
Although Plaintiff did not designate Defendant Watford in
her official capacity, he identifies her full job title in the
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).
Watford filed motions to dismiss the amended complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim.
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. §
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.
Plaintiff mistakenly pleaded a violation of 31 U.S.C. §
0.208, which does not exist.
employees and supervisors rather than his employer, as defined
by Title VII.
(Id. at 8-11).5
second amended complaint on March 22, 2016.
(ECF No. 30).
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.
(ECF No. 35, at 4-5).
Wexford filed its pending motion to dismiss on March 28,
(ECF No. 31).
The State Defendants’ pending motion to
dismiss was filed on July 26, 2016.
(ECF No. 52).7
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.
Plaintiff improperly labels this claim “Fraud.”
Several State Defendants originally filed a motion to
dismiss on April 1, 2016. (ECF No. 33). As Plaintiff added and
has responded to both motions.
(ECF Nos. 36; 57).
replied on April 25 (ECF No. 38), and Plaintiff filed a surreply
(ECF No. 51).
Plaintiff responded to
that motion (ECF No. 54), and Wexford replied (ECF No. 58).
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).
Motions to Dismiss
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).
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.”
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).
544, 555 n.3 (2007).
That showing must consist of more than “a
formulaic recitation of the elements of a cause of action” or
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
complaint must be considered as true, Albright v. Oliver, 510
construed in the light most favorable to the plaintiff.
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
unsupported legal allegations need not be accepted.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
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
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
experience and common sense.”
held to a less stringent standard than pleadings drafted by
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.
(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.”).
Non-Title VII Claims
violations of SOX and Dodd-Frank for the first time.
(Id. at 6-
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
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
Plaintiff’s second amended complaint also makes references
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
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
It appears that Plaintiff
generally in his second amended complaint (see ECF No. 30, at 7,
8, 13), he argues in opposition to the motions to dismiss that
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
To state a claim for a substantive violation of
RICO, the complaint must set forth facts which, if proven, would
pattern (4) of racketeering activity.”
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)).
Plaintiff states, without further explanation, that a
“supervisory employee of this agency” extorted more than $10,000
(ECF No. 30, at 4).
Without more facts, this
statement is insufficient to plead any potential private action
based on the alleged extortion.
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.
indictable” under a lengthy, but enumerated, list of criminal
18 U.S.C. § 1961(1).
Plaintiff’s complaint alleges
neither of which is enumerated in § 1961.10
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
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
tampering with or retaliating against criminal witnesses,
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.
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).
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.
directed Plaintiff to provide facts related to such claims in
his amended pleadings, he made no reference to these claims in
complaint may not be amended by the briefs in opposition to a
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).
claims will be dismissed.
Title VII Claims
Plaintiff’s Employer Under Title VII
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
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.”).
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
defendants, even though he had named Defendant Wolfe in his
complaint and had named MDPSCS in the original complaint.
Nos. 4; 30).
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.”).
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
reinstated in spite of its absence from the first and second
Plaintiff does not, however, allege that Wexford is or ever
was his employer.
Similarly, all of the other State Defendants
Accordingly, both motions to dismiss will be granted as to all
other individual Defendants who have not yet moved for dismissal
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.
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).
now alleged that he filed an EEOC charge and was issued a right
The file does not reflect that MDPSCS was served in this
Counsel will be directed to notify the court whether
formal service is necessary.
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.
to sue letter in March 2016.
(ECF Nos. 30-1; 30-2).
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.
See Causey v.
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
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).
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
must show that: (1) he was subjected to unwelcome conduct; (2)
the unwelcome conduct was based on sex; (3) the conduct was
employment and create a hostile work environment; and (4) some
basis exists for imputing liability to the employer.
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
anatomy, and exposing her breasts to him.
(ECF No. 4, at 6, 9,
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).
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)).
affect[s] the terms, conditions, or benefits’ of the plaintiff’s
James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 375 (4th Cir. 2004) (internal quotation marks omitted).
dissuade a reasonable worker from making or supporting a charge
Burlington N. & Santa Fe Ry. Co v. White,
complaints being filed against him and to him being moved to a
different work area in a different building.
(ECF No. 4, at 11-
Plaintiff’s complaint thus also appears to plead a claim
In the State Defendants’ motion to dismiss, Defendant Wolfe
Plaintiff’s complaint under Fed.R.Civ.P. 8(a) and 12(b)(6).
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.
holding that they were not Plaintiff’s employer.
their motion to dismiss will be denied as to Defendant Wolfe
further motion to dismiss or for summary judgment.
III. Other Pending Motions
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
(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
By contrast, “[a] motion for leave to file a surreply
may be denied when the matter addressed in the reply is not
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.
Wexford’s motion to strike will be granted.
Plaintiff’s Motion to Disqualify Opposing Counsel
Plaintiff has filed a motion to disqualify opposing counsel
(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
the State Defendants here.
(Id. at 5, 6).
that Ms. Arnquist is likely to testify on behalf of Defendant
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.
Plaintiff’s motion will be denied.
Plaintiff’s Application for Injunctive Relief
Hejirika as Warden of JCI.
(ECF No. 56, at 5).
contends that Mr. Hejirika was fired for making contact with
Plaintiff has no standing to bring an action on
behalf of Mr. Hejirika, who is not a party to this case.
application for injunctive relief will therefore be denied.
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
Plaintiff also makes an unintelligible argument related
to the National Labor Relations Act. (ECF No. 55, at 7-9).
otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.”
motions to dismiss under Fed.R.Civ.P. 12, Wexford and the State
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
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
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.
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
granted, and Plaintiff’s motions will be denied.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
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