Konah v. District of Columbia , 971 F. Supp. 2d 74 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
LENA T. KONAH, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-904 (RMC)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
___________________________________ )
OPINION
Lena T. Konah worked as a licensed practical nurse at the D.C. Jail until the
events that underlie this lawsuit caused her to take a leave of absence and eventually decide not
to return. On her last day of work, Ms. Konah was accosted by a group of semi-clothed inmates
who made repeated lewd comments and one of whom grabbed her buttocks. Totally unnerved
by the experience, Ms. Konah contends that the District of Columbia failed to train its
correctional employees to respond adequately to inmates’ sexual abuse of staff and thus violated
her right to equal protection under the Fifth Amendment’s Due Process Clause. The District
moves for summary judgment. For the reasons stated below, the Court will grant the motion.
I. FACTS
This case has previously been addressed by the Court. The facts and procedural
history are set forth in detail in Konah v. District of Columbia (Konah I), 815 F. Supp. 2d 61(D.D.C. 2011) (granting in part and denying in part motion to dismiss; exercising supplemental
jurisdiction over state-law claims) and in Konah v. District of Columbia (Konah II), 915 F. Supp.
2d 7 (D.D.C. 2013) (granting summary judgment to Unity and Sgt. Robert Jefferson; granting
partial judgment on the pleadings to the District). There is now only one count remaining: a
1
claim against the District of Columbia under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658, 691–92 (1978), alleging sexual harassment by inmates due to
inadequate training of correctional officers. See 3d Am. Compl. [Dkt. 64] ¶¶ 54–62. This
Opinion reviews only the facts relevant to the outstanding claim and states them in the light most
favorable to Ms. Konah. No additional discovery was conducted after Konah II was issued, and
that opinion was based on an extensive record, which included depositions of many key
witnesses, documentary evidence, and video recordings. Therefore, the Court cites to the facts as
set forth in Konah II except where additions are necessary or where the parties contend that a
material factual dispute remains.
A. Background
From November 2006 through September 2009, Ms. Konah worked as a Licensed
Practical Nurse (LPN) for Unity Health Care, Inc., which provides medical services to inmates at
the D.C. Central Detention Facility (CDF, also referred to as the D.C. Jail) under contract with
the District’s Department of Corrections (DOC). Konah II, 915 F. Supp. 2d at 12. One of the
duties of LPNs was to distribute medicine to inmates, which nurses typically did in the housing
units of the jail. Id. at 13. Correctional officers were required to accompany nurses at all times
when they dispensed medication, and if an officer was not immediately available, a nurse could
“just come back and wait for one.” Id. (quoting Konah Dep. at 100; other record citations
omitted). Waiting for an officer was Ms. Konah’s typical practice. Id.
It was not uncommon for inmates to insult or assault staff at CDF by cursing them
or using other inappropriate language, masturbating in front of them, or throwing urine, feces, or
other liquids at them. Id. at 13, 25. The targets of these attacks were both correctional
employees and contractors, including Unity nurses; both men and women were victims. Id.; see
also Jefferson Dep., Def. Mot. Summ. J. (Def. MSJ) [Dkt. 90], Ex. 2 [Dkt. 90-4] at 42–45, 91–92
2
(“Q. . . . [I]s the yelling, the cursing, the throwing of fecal matter, the throwing of urine, is that
only limited to female officers? A. No.”). As Dr. Benedict Kargbo, a CDF treatment specialist,
testified:
Q. Is the act of inmates throwing urine or feces at correctional
staff, is that common?
A. Yes. It happen[s] all the time.
Q. And does it happen in other jails that you’ve worked in?
A. Yes, it does.
Q. And is it directed at females only?
A. No.
Q. Is it directed at nurses only?
A. No.
Kargbo Dep., Def. MSJ, Ex. 5 [Dkt. 90-7] at 46–47, 62–63, 68–69. Sergeant Jefferson
acknowledged, however, that inmates did not masturbate “frequently” in front of males, directing
that behavior largely at female staffers. Jefferson Dep. at 42–44.
“Assault by Throwing Substances,” including “liquids, blood, waste, chemicals,
urine, etc.” was listed as a Class I Major Offense in the Inmate Handbook given to all CDF
inmates, and “[w]illfully subjecting an employee of the DOC to offensive bodily contact” was a
Class II Serious Offense. See Inmate Handbook, Def. MSJ, Ex. 6 [Dkt. 90-8] at 16, 20. These
violations were punishable with administrative penalties ranging from loss of privileges or work
assignment to disciplinary detention; for a Class I Major Offense, disciplinary detention could be
imposed for the remainder of an inmate’s time in custody. Id. at 19–20, 23. Class I Major
Offenses could also be prosecuted criminally. Id. at 16.
On April 21, 2009, several nurses, including Ms. Konah, sent a letter to Unity
management, complaining about security practices at the jail. Konah II, 915 F. Supp. 2d at 13;
see also April 21, 2009 Letter (4/21/09 Letter), Pl. Opp. Mot. Summ. J. (Pl. Opp.) [Dkt. 91], Ex.
5 [Dkt. 91-6] at 1. Titled “Deplorable Security Conditions During Medication Administration,”
the letter stated, in relevant part:
3
We are writing this notice because of the deplorable security
conditions we are facing during medication pass. On 4/11/09 feces
were thrown on nurse Igwulu Francisca. On 4/19/09 some
unknown liquid was thrown on nurse Tyler Ashly. Before then,
about a week ago, unknown liquid was thrown on nurse Akoto
Joyce. A similar incident happened to nurse Harper and nurse
Nwaobilor. Nurse Tangunyi was hit with a bar of soap from
behind. Unknown liquid was thrown on nurse Tandong.
Curiously notwithstanding all this incidents and all our pleas for
the situation to be looked into, nothing has been done. . . . We
keep wondering if a nurse needs to be stabbed or even killed here
before this issue will be looked into.
We had previously brought our predicaments to the nursing
administrator who promised to get in touch with the DOC
administration so that the officers will bring the inmates to the
bubble or to the sick call room to be medicated, but till this date we
have not hear of the out come. . . .
4/21/09 Letter at 1 (alteration in brackets; all other spelling and formatting as in original).
Nurses Tangunyi is male; Nurses Francisca Igwulu and Ashly (or Ashley) Tyler are females; Ms.
Konah is female, and the rest of the nurses’ genders are not in the record. Konah Dep., Def.
MSJ, Ex. 1 [Dkt. 90-3] at 70–72.
“The bubble” referenced in the 4/21/09 Letter is the glass-walled control module
staffed by corrections employees that sits at the entrance of each “open population” housing unit
in the D.C. Jail. Open-population inmates are often released from their cells to mingle and
congregate generally in their cell block. From the bubble, a corrections sergeant controls two
gates for each cell block: one gate connects the cell block to a narrow hallway called the “sally
port” 1 while the second gate connects the sally port to the main hallway of the jail. The sally
port is the ingress and egress to the cell block for inmates and corrections staff, and inmates are
not supposed to be in the sally port without a corrections officer as an escort. Only one gate in
1
A modern sally port is most often a controlled entrance into a secured and protected area, such
as a prison.
4
the sally port may be open at any given time because otherwise, inmates could run out into the
hallway of the jail, which would be a security breach. Also referenced in the 4/21/09 Letter are
“sick call rooms,” which are small rooms with Dutch doors adjacent to the sally ports. A nurse
can stand inside a sick-call room with the bottom half of the door closed and locked and dispense
medication through the open top half of the door. To access a sick-call room, a nurse would sign
out the key and return it when s/he was done. Konah II, 915 F. Supp. 2d at 12–13 (record
citations omitted).
The parties dispute the evolution of the policy on the use of sick-call rooms. It is
clear that prior to the 4/21/09 Letter, sick-call rooms were available for use, but the nurses’
prevailing practice was to enter the cell blocks and dispense medication to inmates in open
population or cell-to-cell. See Konah II, 915 F. Supp. 2d at 13. For example, CDF records show
that Ms. Konah signed out a key and used a sick-call room in March 2009, id. (citations omitted),
but she asserts that “the only policy on dispensing medications that she knew and understood
. . . [was] that nurses dispensed medications on the units walking around the tiers/units and that
there was no specific place to dispense medications,” Pl. Statement of Material Facts in Dispute
(Pl. SOF), Dkt. 91-1, ¶ 2.
After receiving the 4/21/09 Letter, Vali Zabiheian, Unity’s Health Services
Administrator and the senior management representative for Unity at the D.C. Jail, implemented
a “sick call room policy” for medication distribution. Konah II, 915 F. Supp. 2d at 13. Under
the new policy, “medication administration and dispensing by the nursing and pharmacy staff”
was to “take place in the sick call rooms on the housing units,” and Unity staff would “no longer
walk on the housing units to administer medicine in open population.” Id. (citing Apr. 22, 2009
Zabiheian Memo at 1). Despite the protection of a sick-call room, a corrections officer was
5
required to escort each nurse at all times. Id. This sick-call room policy was posted at CDF
where Unity employees clock in, in the nursing station, and in the medication room, and a copy
was sent to Warden Simon Wainwright. Id. In addition, at an April 30, 2009 meeting, all
nursing staff, including Ms. Konah, were instructed to use the sick-call rooms when dispensing
medicine. Id. at 13–14. Ms. Konah signed the attendance sheet for the April 30, 2009 training,
and the meeting record reflects her attendance. Id. at 14 (record citations omitted). Ms. Konah
further admitted that the signature is hers, but she equivocated during her deposition about
whether she was at the meeting. 2 Id. (record citations omitted). Ms. Konah’s counsel argues that
even after the sick-call room policy was instituted, Ms. Konah continued to pass medications in
the company of an officer in the housing unit because she did not understand that the policy had
changed. E.g., Pl. SOF ¶ 4.
B. August 5, 2009 Incident
Ms. Konah’s Monell claim derives from an incident that occurred on August 5,
2009, in which a crowd of semi-clad inmates in the sally port surrounded her and grabbed her
buttocks. 3 While the summary judgment record contains some disputes about details of the
2
As the Court noted in Konah II, Ms. Konah’s deposition testimony contained numerous
instances in which she claimed she could not remember or explain significant events or concepts,
both relevant and irrelevant to the case. See Konah II, 915 F. Supp. 2d at 16 n.7. Ms. Konah
relies on the exact same deposition testimony in opposing the District’s motion for summary
judgment. The Court again finds that Ms. Konah’s nonresponsive answers are insufficient to
create legitimate disputes of material fact. Id. at 16 (citing, inter alia, Bonieskie v. Mukasey, 540
F. Supp. 2d 190, 195 (D.D.C. 2008)).
3
Ms. Konah alleges that she filed other “complaints of sex harassment by inmates with her
supervisors” that “receiv[ed] no action or response.” Pl. SUF ¶¶ 10, 12. She cites pages 46 and
69–70 of her deposition as support, but the testimony at those pages states only that Ms. Konah
agreed that the “incidents in [the 4/21/09 Letter] happened to [her].” Importantly, the 4/21/09
Letter did not allege sexual harassment. Asked whether she had ever made other reports to a
supervisor about sexual harassment, Ms. Konah’s inconsistent testimony concluded with her
statement that she “can’t recall” doing so. Konah Dep. at 70. Ms. Konah has offered no other
evidence of such reports before her complaint to the D.C. Office of Human Rights. See DCOHR
6
incident, see Konah II, 915 F. Supp. 2d at 19–20, the Court views the essential facts in the light
most favorable to Ms. Konah as summarized in Konah II:
Ms. Konah was assigned to dispense medication to inmates on
August 5, 2009, in a CDF housing unit known as Southwest–1 or
SW 1. [Sergeant Robert] Jefferson was on duty at the Southwest–1
bubble that day. Ms. Konah varied from her usual practice of
waiting for an officer and entered the sally port unescorted. She
began to dispense medications to inmates in the sally port, close to
the front gate. While she was there, the bubble gate opened and
closed a few times, presumably to admit and discharge inmates
obtaining medications. However, a group of inmates from the
housing unit, dressed only in their undergarments, approached Ms.
Konah in the sally port, making especially lewd and sexually
threatening comments. She went to the bubble and asked Sgt.
Jefferson to open the front gate to the corridor outside the unit so
she could get away from the inmates, but he refused to respond or
to open the gate, leaving her trapped in the sally port. As Ms.
Konah returned to the front gate, the semi-clothed inmates
surrounded her, calling her names and using sexually explicit
language; one inmate grabbed her on the buttocks. Ms. Konah
asked him something to the effect of “why did you touch me?” and
screamed for help from Sgt. Jefferson. Dr. Benedict Kargbo, a
treatment specialist at the Jail, entered the sally port from the
housing unit, saw what was happening, and told the inmate to back
away from Ms. Konah, which he did immediately. Dr. Kargbo
joined Ms. Konah’s demands that the front gate be opened. Sgt.
Jefferson eventually opened the front gate. With a corrections
officer at the entrance, Ms. Konah and Dr. Kargbo left the sally
port at the front gate and entered the main hallway of the Jail.
Ms. Konah was immediately taken to the infirmary. She also met
with Unity and CDF management, including the Warden. She
declined to press criminal charges against the inmate, who had
been placed on lockdown and charged with several Class II Serious
Offenses.
Id. at 14–15 (record citations omitted).
Compl., Pl. Opp., Ex. 11 [Dkt. 91-12] at 1 (complaining that she had been “subjected to
derogatory comments and other sexually harassing acts by inmates”).
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C. Ms. Konah’s Other Evidence Regarding CDF
Ms. Konah has submitted collateral materials that, she argues, support her Monell
claim. The Court finds that these materials deserve no significant weight because they are of
dubious relevance at best. Ms. Konah has submitted the District of Columbia Inspector
General’s 2009 “Report of Re-inspection of the Central Detention Facility,” Pl. Opp., Ex. 8, Dkt.
91-9 (OIG Report); a March 2009 report from the Commission on Accreditation for Corrections,
id., Ex. 9, Dkt. 91-10; and testimony from the Director of the D.C. Prisoners’ Project before the
D.C. Council, id., Ex. 15, Dkt. 91-16. Ms. Konah asserts that these documents show “DOC
officials and policy maker [sic] were aware that correctional officers at the CDF were not
adequately trained in sexual abuse or security, and that it was a practice and custom at the CDF
for the correctional officers not to follow DOC Post Orders, and that the failure to adequately
train the correctional officers would lead to harm and violations of constitutional rights.” Pl.
SOF ¶ 27. The cited documents, however, almost exclusively discuss inmate conditions and not
sexual abuse or security. 4 E.g., OIG Report at 4 (finding that “DOC had addressed key findings
and recommendations from a previous inspection,” listing as examples “decreasing vermin
contamination throughout the CDF” and “delivering proper dietetic meals to inmates”). Ms.
Konah also embellishes the OIG Report’s reference to inconsistent following of post orders,
which in reality bore no relation to inmate assaults on staff, much less sex-based harassment or
attacks. Id. at 18.
4
Ms. Konah’s opposition brief is disconcertingly rife with similar material misrepresentations of
fact. For example, citing pages “42–34 [sic]” of Sergeant Jefferson’s deposition, she asserts:
“[Sergeant Jefferson] further stated that he did not take sexual harassment seriously and if a staff
brought it to his attention he would not report it.” Pl. Opp. at 12. Absolutely nothing in Sergeant
Jefferson’s deposition—on page 42, nearby pages, or otherwise—supports that assertion.
8
The Court does not rely on other materials submitted by Ms. Konah because
tenuous relevance is the least severe of their infirmities. For example, she has offered two
newspaper articles from the Washington City Paper describing assaults on inmates by other
inmates, which are inadmissible hearsay. See Pl. Opp., Ex. 13 [Dkt. 91-14] & Ex. 14 [Dkt. 91-
15]. She has also included a conclusory report from a “Correctional Consultant” (whose
credentials are unrevealed and who has not been accepted as an expert by the Court) that asserts
that the District “acted in a manner that was inconsistent with and below the applicable standard
of care and accepted practices and procedures” on August 5, 2009, id., Ex. 17, Dkt. 91-18.
“[U]nsworn, unauthenticated documents cannot be considered on a motion for summary
judgment,” Akers v. Liberty Mutual Group, 744 F. Supp. 2d 92, 97 (D.D.C. 2010) (quoting Orsi
v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993)), and “‘sheer hearsay . . . counts for nothing’ on
summary judgment.” Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (quoting Gleklen
v. Democratic Cong. Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000)). Were these
materials admissible on summary judgment, they would nonetheless remain irrelevant because
they do not bear on Ms. Konah’s Monell claim of a practice or custom of DOC that violated Ms.
Konah’s equal protection rights.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly
granted against a party who “after adequate time for discovery and upon motion . . . fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
9
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the
nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that
would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (citations omitted).
III. ANALYSIS
In Konah II, this Court denied the District’s motion for judgment on the pleadings
on Ms. Konah’s Monell claim because she had “alleged sufficient facts to state a claim that
District officials knew of the problem”—“that the District did not sufficiently train its employees
in the Department of Corrections to ensure that Unity nurses were not subjected to constant
gender-based lewd and nasty catcalls or acts by the inmates”—“and that their failure to address it
was deliberately indifferent.” Konah II, 915 F. Supp. 2d at 31–32. But allegations are not
evidence. The record on summary judgment shows no genuine disputes of material fact, and the
District is entitled to judgment as a matter of law. Accordingly, the motion for summary
judgment will be granted.
Constitutional claims against municipalities under 42 U.S.C. § 1983 are subject to
a two-step analysis. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)
(citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)). First, a court must find that
10
the plaintiff suffered “a predicate constitutional violation.” Id. (citation omitted). At the second
step, a court must determine whether “a custom or policy of the municipality caused the
violation.” Id. (citing Collins, 503 U.S. at 120; other citations omitted); see also Monell, 436
U.S. at 694 (“[I]t is when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.”).
The predicate constitutional violation that Ms. Konah allegedly suffered is sexual
harassment, which can constitute discrimination based on gender in violation of the equal
protection component of the Fifth Amendment’s Due Process clause. 5 See Pl. Opp. at 11. As
the Court stated in Konah II:
“[T]he Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.” Davis
v. Passman, 442 U.S. 228, 234 (1979) (citations omitted). “To
withstand scrutiny under the equal protection component of the
Fifth Amendment’s Due Process Clause,” gender classifications
must meet so-called “intermediate scrutiny,” meaning that they
“must serve important governmental objectives and must be
substantially related to achievement of those objectives.” Id. at
235; see also United States v. Virginia, 518 U.S. 515, 533 (1996)
(applying same test to Fourteenth Amendment equal protection
claim of gender discrimination). “The equal protection component
of the Due Process Clause thus confers . . . a federal constitutional
right to be free from gender discrimination which cannot meet
these requirements.” Passman, 442 U.S. at 235.
915 F. Supp. 2d at 30–31. A sexual harassment claim brought under the equal protection clause
is actionable under § 1983. See, e.g., Annis v. Cnty. of Westchester, N.Y., 36 F.3d 251, 254 (2d
Cir. 1994) (“[H]arassment that transcends coarse, hostile and boorish behavior can rise to the
5
Because the District is treated as a federal enclave and not a state for the purpose of analyzing
constitutional due process claims, such suits against the District “must be brought under the Fifth
and not the Fourteenth Amendment.” See Fisher v. Fulwood, 774 F. Supp. 2d 54, 55 n.1 (D.D.C.
2011).
11
level of a constitutional tort.”); Pontarelli v. Stone, 930 F.2d 104, 113–114 (1st Cir. 1991),
abrogated on other grounds by Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380 (1993).
The record is clear that all staff at the D.C. Jail—whether employed by the
District of Columbia or Unity and whether male or female—were subject to some amount of
verbal abuse and noxious substances from inmates. It is also clear that masturbation by inmates
occurred most often in sight of female staff, although masturbation was not exhibited to Ms.
Konah on August 5, 2009, or, perhaps, ever during her tenure at the D.C. Jail. See Konah Dep.
at 68–73, 248–50 (referring to nonspecific incidents of “sexual remarks” that she “can’t recall”
but never mentioning exhibitionist self-gratification). Notably, the nursing staff employed by
Unity at the D.C. Jail in April 2009 was largely, although not exclusively, women, but they
attributed inmate misconduct to a lack of security, not sexual harassment directed against their
gender. Nonetheless, there is also no dispute that inmates directed lewd, sexually explicit
comments specifically at Ms. Konah and that one inmate grabbed her on the buttocks on August
5, 2009.
The Court is left with the complexity—through record evidence now or at a later
trial—of attempting to cull inmate misconduct directed to both sexes from that directed to
women due to the recipient’s gender. This complicated and time-consuming task could
ultimately be for naught because it is unclear that § 1983 would cover a claim of sexual
harassment when the offense arises from lewd inmate conduct. 6 The Court avoids this quagmire
6
In the context of an alleged hostile work environment in a jail, under Title VII, 42 U.S.C.
§ 2000e et seq., courts have ruled that an “employer may be liable if he ‘fails to take immediate
and appropriate corrective action in response to a hostile work environment of which the
employer knew or reasonably should have known.’” Konah II, 915 F. Supp. 2d at 24 (quoting
Beckford v. Department of Corrections, 605 F.3d 951, 957–58 (11th Cir. 2010)). But “[c]ourts
12
by moving instead to the second part of the Monell test, which proves to be dispositive even if
Ms. Konah had proved an equal protection violation.
Because a municipality is liable only “where the municipality itself causes the
constitutional violation at issue,” Simms v. District of Columbia, 587 F. Supp. 2d 269, 276
(D.D.C. 2008) (citing Monell, 436 U.S. at 694), there must be “an affirmative link . . . such that a
municipal policy was the moving force behind the constitutional violation,” Baker, 326 F.3d at
1306 (internal quotation marks and citations omitted). While a plaintiff may bring suit based on
an actual, identifiable policy or practice, an actionable policy may also exist when a municipality
fails “to respond to a need (for example, training of employees) in such a manner as to show
‘deliberate indifference’ to the risk that not addressing the need will result in constitutional
violations.” Baker, 326 F.3d at 1306 (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
The Supreme Court has cautioned that “[a] municipality’s culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 131 S. Ct.
1350, 1359 (2011).
A municipality is deliberately indifferent when it has knowledge that its agents
are likely to violate constitutional rights, and the municipality “adopt[s] a policy of inaction.”
Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). A court must determine
“whether the municipality knew or should have known of the risk of constitutional violations, an
objective standard.” Baker, 326 F.3d at 1307 (citing Farmer v. Brennan, 511 U.S. 825, 841
(1994)). A municipality is not deliberately indifferent simply because it fails to “take reasonable
care to discover and prevent constitutional violations.” Warren, 353 F.3d at 39. For liability to
have repeatedly declined to impose sexual harassment liability upon correctional institutions for
the sexually offensive conduct of inmates, as long as the defendant institution took proper
preventive and remedial steps with regard to inmate behavior.” Powell v. Morris, 37 F. Supp. 2d
1011, 1017 (S.D. Ohio 1999).
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attach, “the identified deficiency in the city’s training program must be closely related to the
ultimate injury.” Harris, 489 U.S. at 391.
Ms. Konah cannot meet the “stringent standard of fault” for the alleged failure-to-
train for three reasons. See Thompson, 131 S. Ct. at 1360 (quoting Board of Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 410 (1997)). First, setting aside her apparent violation of the new
sick-call room policy, the precipitating cause of the August 5, 2009 incident was Ms. Konah’s
own decision to violate longstanding policy and deviate from her standard practice of waiting for
a corrections officer to escort her before entering the housing unit. See Konah Dep. at 100 (“Q.
And do you typically wait for an officer if one is not available? A. Yes.”). This alone is
sufficient to grant summary judgment for the District because a Monell plaintiff must show that
“the identified deficiency in the city’s training program” was “closely related to the ultimate
injury.” Harris, 489 U.S. at 391. Ms. Konah seeks to expand this lawsuit into a referendum on
whether DOC officials “take sexual harassment or sexual abuse seriously,” Pl. Opp. at 12, or
whether DOC employees had “received sexual harassment or sexual abuse training,” id. at 10,
but the alleged harm was caused by Ms. Konah’s admitted choice to enter the sally port without
waiting for the security of a corrections officer. There is no suggestion that Ms. Konah was
forced to enter the housing unit without an escort or that she could not have waited for an officer
to accompany her, as she herself conceded at her deposition. 7 See Konah Dep. at 103–04. To
the extent that Ms. Konah complains that Sergeant Jefferson should have opened the gate to
allow her to escape the inmates in the sally port, as the Court concluded in Konah II, “[e]ven
7
The Third Amended Complaint alleges that Ms. Konah “was assigned by her supervisor to
dispense medications to inmates . . . without security escort,” 3d Am. Compl. ¶ 14, but at the
close of discovery, Ms. Konah pointed to no evidence to support that assertion. Mere
unsubstantiated allegations are insufficient to survive summary judgment. See Greene, 164 F.3d
at 675.
14
[Ms. Konah’s] deposition, viewed in the light most favorable to her and setting aside the many
inconsistencies and memory gaps, does not tend to show that Sgt. Jefferson ‘just did not open the
gate’ for any reason other than that there were inmates in the sally port who would have been
able to escape confinement.” 915 F. Supp. 2d at 23. It is worth noting that Ms. Konah conceded
at deposition that her claims are based on her belief that Sergeant Jefferson “did not open the
gate to let me out as I asked him before the inmate came and touched me.” Konah Dep. at 227–
28. There is no evidence tending to show that any municipal policy was the “moving force”
behind the August 5, 2009, incident, rather than Ms. Konah’s own decision to enter the unit
without a corrections officer escort, mandated by DOC policy and as per her typical practice.
The second fatal shortcoming in Ms. Konah’s Monell claim is the disconnect
between the sexual harassment she suffered on August 5, 2009, and the evidence she has offered
to show that the District was deliberately indifferent to a need for better corrections officer
training. Again, despite counsel’s attempt to transform this case into a sweeping review of
management of the D.C. Jail, the circumstantial evidence relied on by Ms. Konah does not show
“deliberate indifference to the risk that not addressing the need will result in constitutional
violations.” See Baker, 326 F.3d at 1306. Ms. Konah’s proffered evidence of deliberate
indifference supports two conclusions: first, in 2009, CDF had a general problem of inmates
cursing and throwing fecal matter or urine at staff, including nurses; and, second, in the late
2000s, the District was actively trying to remedy inmate conditions and overall management at
CDF. But none of this evidence shows that the District was deliberately indifferent to any
problem of sexual harassment of staff by inmates, which is the alleged constitutional violation at
issue. The 4/21/09 Letter, relied on by Ms. Konah, stated nurses’ concerns about security and
thrown bodily waste, not sexual harassment, and even the most relevant part of the OIG
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Report—the section regarding correctional officer compliance with post orders—did not mention
staff security, much less sexual harassment of contractors. To the contrary, it primarily
addressed issues regarding “a safe, clean, secure, and human environment for inmates.” OIG
Report at 18. Generalized concerns about a need for increased safety at CDF are not sufficient to
prove deliberate indifference to sexual harassment of the kind experienced by Ms. Konah. Thus,
there is no evidence that the District “adopt[ed] a policy of inaction” that led to a violation of
constitutional rights. Warren, 353 F.3d at 39.
Third, even assuming that the ongoing, general concerns about conditions at CDF
somehow should have put the District on notice of the risk of nurses experiencing sexual
harassment, the record reflects that Unity and the District collaborated to address those concerns.
The day after receiving the 4/21/09 Letter, Unity determined that all nurses would be required to
distribute medication from within the sick-call rooms. This policy was distributed to Unity and
CDF staff and was the subject of the April 30, 2009 Unity staff meeting. Ms. Konah argues that
“she did not understand that the policy had changed,” Pl. SOF ¶ 4, but her subjective lack of
understanding is not evidence that the District “knew or should have known of the risk of
constitutional violations.” Baker, 326 F.3d at 1307; see also Konah II, 915 F. Supp. 2d at 26
(observing that Unity was bound by DOC security policies and concluding that “Unity took
reasonable and appropriate corrective steps to ensure that the environment for Unity nurses at
CDF would be as safe and non-hostile as a job situation in a jail requiring direct contact with
inmates could be”). Moreover, as the Court discussed in Konah II, “[t]he follow-up by Unity
and DOC to the August 5, 2009 incident was also comprehensive, including the immediate
medical evaluation of Ms. Konah by the infirmary, a meeting with the warden, the offer of
criminal prosecution, and the use of the internal CDF disciplinary system to which inmates are
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subject.” 915 F. Supp. 2d at 26. These responses are far more robust than the failure to respond
that the Ninth Circuit found supported a correctional facility’s Title VII hostile work
environment liability for failure to respond to inmate sexual misconduct in Freitag v. Ayers, 468
F.3d 528, 540–41 (9th Cir. 2006), cited by Ms. Konah. In Freitag, for example, there were
specific complaints “by female officers about exhibitionist masturbation,” and the jail had
neither used its own disciplinary process sufficiently nor adopted any of the other corrective
measures available. Id. The responses to the 4/21/09 Letter and to the August 5, 2009 incident
do not reflect deliberate indifference.
There is no doubt that the August 5, 2009 incident justifiably unnerved Ms.
Konah. However, persons who work in close contact with inmates face dangerous and difficult
circumstances each day, even in the best-managed facilities. Were Ms. Konah able to prove that
inmate sexual harassment violated her rights to equal protection of the laws, there is no evidence
that the District failed to train correctional officers in a way that would have averted the incident,
and there is evidence that Ms. Konah could have avoided it by following known policy. On
these facts, Ms. Konah has not shown that the any custom or policy is to blame for her alleged
constitutional injury.
IV. CONCLUSION
For the foregoing reasons, the District of Columbia’s Motion for Summary
Judgment, Dkt. 90, will be granted. A memorializing Order accompanies this Opinion.
Date: September 20, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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