Simmons v. District of Columbia Government ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
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DANIEL SIMMONS, )
Plaintiff, )
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v. ) Civil Action No. 07-493 (RCL)
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DISTRICT OF COLUMBIA, et al., )
Defendants. )
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_______________________________________)
MEMORANDUM OPINION
Before the Court is defendant District of Columbia’s Motion for Partial Summary
Judgment. Upon consideration of the motion, ECF No. 53, the opposition thereto, ECF No. 54,
the reply brief, ECF No. 55, applicable law, and the entire record, the Court will grant in part and
deny in part the motion for the reasons stated below.
I. BACKGROUND
Plaintiff has alleged that when he was incarcerated at the D.C. Detention Facility,
defendants the District of Columbia and John Does 1–5 violated his rights. Plaintiff filed his
initial complaint in 2007. Compl., Mar. 15, 2007, ECF No. 1. The Court later dismissed all of the
counts for failure to state a claim, except those relating to plaintiff’s overdetention, which the
Court stayed pending further proceedings in Barnes v. District of Columbia, Civil No. 06-315
(D.D.C.). Mem. Order 6, 10–11, Mar. 27, 2008, ECF No. 18. Plaintiff then filed an amended
complaint, pleading four counts: (I) overdetention in violation of the Fifth Amendment; (II) an
unreasonable body-cavity search in violation of the Fourth Amendment; (III) common-law
negligence in overdetaining plaintiff, housing plaintiff with a convicted murderer, and
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conducting an unreasonable body-cavity search; and (IV) common-law negligent supervision,
training, and hiring in overdetaining plaintiff, housing plaintiff with a convicted murderer, and
conducting an unreasonable body-cavity search. The District now moves for summary judgment
as to Counts II, III, and IV of Plaintiff’s Amended Complaint. 1 The District does not move for
summary judgment as to Count I, because this overdetention claim has been stayed.
II. LEGAL STANDARD
The Court will grant a motion for summary judgment where a party shows “that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c)(2). There is a genuine issue as to a material fact if “reasonable minds
could differ” as to that fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), cited in
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden is on the moving party to
demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Celotex, 477
U.S. at 323. The Court will believe the evidence of the non-moving party and will draw all
reasonable inferences from the record in the non-moving party’s favor. Anderson, 477 U.S. at
255. It is not enough, however, for the non-moving party to show that there is merely “some
alleged factual dispute”: the fact must be “material.” Id. at 247 (emphasis in original). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. at 248. Thus, summary judgment is
appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find
for the [non-movant].” Id. at 252. “In determining a motion for summary judgment, the court
may assume that facts identified by the moving party in its statement of material facts are
1
Because only the District of Columbia has moved for summary judgment, the Court will not consider claims
against John Does 1–5 at this time.
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admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition
to the motion.” D.D.C. LCvR 7(h)(1).
III. ANALYSIS
A. Count II: § 1983 Claim of an Unreasonable Body-Cavity Search in Violation of
the Fourth Amendment
In Count II, plaintiff alleges that he was “deprived of his Fourth Amendment Right under
the U.S. Constitution to be free of illegal search and seizure when he was subjected to a body
cavity search ordered and/or conducted by Defendants, John Does 1–5 . . . .” Am. Compl. ¶ 17.
The District now moves for summary judgment on this claim, arguing that “Plaintiff has failed to
identify evidence in the record sufficient to support municipal liability against the District of
Columbia for his alleged constitutional claim.” Def.’s Mot. 2.
1. Legal Standard for a Claim Under § 1983
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
A § 1983 action requires two elements: first, that “the conduct complained of was committed by
a person acting under color of state law,” and second, that the alleged conduct deprived plaintiff
of “rights, privileges, or immunities secured by the Constitution.” Parratt v. Taylor, 451 U.S.
527, 535 (1981). The Supreme Court set out the standard for municipal liability under § 1983 in
Monell v. Department of Social Services, 436 U.S. 658 (1978): “Local governing bodies . . . can
be sued directly under § 1983 for monetary, declaratory, or injunction relief where, as here, the
action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,”
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which can include “constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body’s official
decisionmaking channels.” See also Morgan v. Dist. of Columbia, 824 F.2d 1049, 1058 (D.C.
Cir. 1987) (finding that the District of Columbia may be held liable under § 1983 “only when the
execution of its official policy or custom is responsible for the deprivation of constitutional
rights”). Thus, to prevail in a § 1983 claim against the District, plaintiff “must show a course
deliberately pursued by the city, ‘as opposed to an action taken unilaterally by a
nonpolicymaking municipal employee,’ . . . and ‘an affirmative link between the [city’s] policy
and the particular constitutional violation alleged.’” Carter v. Dist. of Columbia, 795 F.2d 116,
122 (D.C. Cir. 1986) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 829 (1985) (Brennan, J.,
concurring)).
2. Analysis
Even if the District violated plaintiff’s Fourth Amendment rights, the District is only
liable for this violation if the corrections officers were executing the District’s “official policy or
custom.” Morgan, 824 F.2d at 1058. Because the District has shown that there is an absence of a
genuine issue of material fact in dispute, the Court will grant summary judgment to the District.
In a motion for summary judgment, the Court will believe the non-movant’s—here, the
plaintiff’s—evidence. Anderson, 477 U.S. at 255. But the non-movant must provide some
evidence for the Court to consider, and this evidence must be evidence on which a jury could
reasonably find for the non-movant. Id. at 252. Although plaintiff has provided evidence in
support of his claim that this body-cavity search violated the Fourth Amendment, he has not
provided any evidence to support his claim that the corrections officers were executing the
District’s official policy or custom.
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The District has provided several pieces of evidence in support of its position. The
District’s official policy on strip searches provides, in relevant part: “Staff may conduct a strip
search where there is a reasonable belief that contraband may be concealed on the person, a good
opportunity for concealment has occurred, or there is increased need for security.” Defs.’ Ex. 2 at
3 ¶ 8(b)(1). The District’s official policy on body-cavity searches provides, in relevant part:
When there is reasonable belief that an inmate has ingested contraband or concealed
contraband in a body cavity and other methods of search are inappropriate or likely to
result in physical injury to the inmate, the Warden or designee may authorize the
placement of an inmate in a room to allow staff to closely observe the inmate. The inmate
shall be held in the dry cell until the inmate has voided the contraband or until sufficient
time has elapsed to preclude the possibility that the inmate is concealing contraband.
Defs.’ Ex. 2 at 3 ¶ 9. The District’s training materials address training on strip searches and
body-cavity searches. Defs.’ Ex. 2 at 97 ¶ III(A). The District submitted a declaration from the
Chief of Security of the D.C. Department of Corrections, in which he stated that “DOC’s practice
regarding strip searches is consistent with its policies. . . . Based on my knowledge of DOC’s
policies, if a radio was lost, according to Plaintiff’s allegations, a strip search of Plaintiff, if
performed would have been consistent with DOC policies.” Andrew Watford Decl. ¶ ¶ 8, 17.
These policies do not, on their face, violate the Fourth Amendment. Inmates maintain
some Fourth Amendment rights in prison. Bell v. Wolfish, 441 U.S. 520, 558 (1979). The Fourth
Amendment permits searches that are reasonable. U.S. Const., amend IV. The standard for
evaluating the reasonableness of a visual body-cavity search of a prisoner “requires a balancing
of the need for the particular search against the invasion of personal rights that the search entails.
Courts must consider the scope of the particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is conducted.” Id. at 559. A corrections
officer can conduct a visual body-cavity search when he has less than probable cause. Id. at 560.
But he cannot conduct the search when he has no cause or when there is no need for the search.
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Because the District’s official policy provides that corrections officers can conduct strip searches
and body-cavity searches when they have a “reasonable belief” that the search will find
contraband, its policies do not violate the Fourth Amendment.
Although the District may very well have a custom of ignoring these policies, plaintiff
has provided no evidence in support of that custom. In his statement of genuine issues of
material facts in dispute, plaintiff states: “While Defendant had policies and procedures
governing strip searches, Defendant failed to implement the policies and procedures governing
probable cause to conduct a strip search.” Pl.’s Statement of Material Facts ¶ 4. In support of this
assertion, plaintiff states that the District has had a “long history of failure to follow its stated
policies. Beginning in 2002 to the present there have been several class action cases brought
against the District of Columbia for the faulty interpretation of its strip search policies.” Pl.’s
Opp’n 11. The Court cannot consider evidence presented in these class-action cases, especially
when there have been no factual findings in those cases. The opinions to which plaintiff cites
either resolved a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Bynum v.
Dist. of Columbia, 257 F. Supp. 2d 1 (D.D.C. 2002), or approved a settlement of a class action,
see Bynum v. Dist. of Columbia, 384 F. Supp. 2d 342 (D.D.C. 2005). A court does not make
factual findings when ruling on a 12(b)(6) motion to dismiss, because it must accept as true all
allegations contained in plaintiff’s complaint, without the benefit of discovery. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nor does a court make factual findings when approving a
settlement. Plaintiff also cites to Barnes v. District of Columbia, Civil No. 06-315 (D.D.C.),
currently before this Court, in which the Court has similarly not made any factual findings.
Indeed, the Court earlier denied defendant’s motion to consolidate Barnes with this case. Order,
Mar. 10, 2009, ECF No. 28. Plaintiff, thus, has not cited to any evidence in support of his bare
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assertions. Nor has plaintiff provided any evidence in his exhibits, which the Court reviewed
carefully. These assertions are insufficient to contradict the District’s evidence. Thus, the District
has shown that there is no genuine issue of material fact in dispute, and the District is entitled to
judgment as a matter of law on plaintiff’s Fourth Amendment claim. Defendant’s motion for
summary judgment will be granted as to Count II. Because John Does 1–5 have not moved for
summary judgment, the Court will not consider at this time whether the individual officers are
liable under § 1983.
B. Counts III and IV: Common-Law Claims of Negligence and Negligent
Supervision, Training, and Hiring
In Count III, plaintiff alleges that defendants acted negligently by (1) overdetaining
plaintiff, Am. Compl. ¶ 25, (2) housing plaintiff with a convicted murderer, id. at ¶ 27, (3) and
conducting an unreasonable body-cavity search, id. at ¶ 29. In Count IV, plaintiff alleges that
defendant the District of Columbia negligently supervised, trained, and hired its employees,
agents, and officials, which resulted in (1) overdetaining plaintiff, (2) housing plaintiff with a
convicted murderer, and (3) conducting an unreasonable body-cavity search. Id. at ¶ 34.
1. Common-Law Claims Relating to Plaintiff’s Overdetention
As the Court held in its previous order, plaintiff’s common-law claims relating to his
alleged overdetention will continue to be stayed pending further proceedings in Barnes. Mem.
Order 10. Defendant’s motion for summary judgment will be denied without prejudice to refile
as to the common-law overdetention claims.
2. Common-Law Claims Relating to Plaintiff’s Improper Housing
The Court has supplemental jurisdiction over common-law claims only to the extent that
they raise issues that “form part of the same case or controversy” as the claims arising under
federal law. 28 U.S.C. § 1367(a). This means that the federal and common-law claims must
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“derive from a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 725 (1966); Doe ex rel. Fein v. Dist. of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996).
The Court may decline to exercise jurisdiction over common-law claims if “the district court has
dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3).
The Court previously dismissed plaintiff’s constitutional claim stemming from his
allegation that he was housed with a dangerous cellmate. Mem. Order 9. Plaintiff did not re-
allege any such constitutional claim in his amended complaint. See Am. Compl. The federal
claims that remain before the Court, therefore, are the stayed overdetention claim and the body-
cavity search claim against defendants John Does 1–5. The Court finds that the housing claims
do not derive from a common nucleus of operative fact as the overdetention and body-cavity
search claims. Each claim relies on an independent set of facts that would require independent
proof. The Court, therefore, does not have supplemental jurisdiction over plaintiff’s improper
housing claims. Defendant’s motion for summary judgment will be granted as to the common-
law improper housing claims.
3. Common-Law Claims Relating to Plaintiff’s Body-Cavity Search
As discussed above, the Court will grant summary judgment to the District on plaintiff’s
body-cavity search claim. But because defendants John Does 1–5 have not moved for summary
judgment, plaintiff’s federal claim against those defendants as to his body-cavity search is still
pending before the Court. Because plaintiff’s common-law claims against all defendants as to his
body-cavity search derive from a common nucleus of operative fact as the still-pending federal
claim, the Court retains supplemental jurisdiction over these common-law claims.
In its motion, the District argues three grounds for dismissal of these common-law
claims: “(1) the law of the case bars the plaintiff from reviving these claims; (2) the plaintiff
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cannot meet his burden of proof because he has not designated an expert witness; and (3) the
evidence in the record does not support plaintiff’s common-law claims.” Def.’s Mot. 10. Plaintiff
responds that there is “no requirement for an expert to testify that it was negligence . . . [because
the] radio they were looking for was too large to be secreted in any body cavity of Plaintiff
which the jury is quite able to see and determine for themselves without an expert.” Pl.’s
Opp’n 1.
The Court disagrees with the District as to its first ground. Although the Court earlier
dismissed plaintiff’s common-law claims, it only did so because it also dismissed the related
federal claims. Mem. Order 10. After plaintiff realleged those claims and corresponding federal
claims in his Amended Complaint, the Court could properly consider them again.
The Court agrees with the District as to its second ground. The D.C. Court of Appeals has
held:
The plaintiff in a negligence action bears the burden of proof on three issues: the
applicable standard of care, a deviation from that standard by the defendant, and a causal
relationship between that deviation and the plaintiff’s injury. . . . We have repeatedly held
that the standard of care owed by the District of Columbia to persons in its custody is a
matter beyond the ken of the average juror that requires expert testimony.
Clark v. Dist. of Columbia, 708 A.2d 632 (D.C. 1997) (emphasis added). This is a very clear
statement that plaintiff must designate an expert witness for any negligence claim. The parties
agree that “Simmons has not presented an expert witness, and discovery in the case closed on
April 2, 2010.” Defs.’ Statement of Material Facts ¶ 14. 2 Because plaintiff did not present an
expert witness, it would be impossible for plaintiff to succeed on these negligence claims at trial.
The Court need not reach the District’s third ground. Thus, the District has shown that there is no
2
Plaintiff failed to respond to the District’s assertion of this fact in his statement of material facts, so plaintiff has
admitted this fact. See D.D.C. LCvR 7(h)(1).
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genuine issue of material fact in dispute, so defendant’s motion for summary judgment will be
granted as to the common-law body-cavity search claims.
IV. CONCLUSION
For the reasons stated, the Court will grant in part and deny in part defendant District of
Columbia’s Motion for Partial Summary Judgment.
The Court will grant defendant’s motion as to Count II of the Amended Complaint.
The Court will deny defendant’s motion without prejudice as to claims under Counts III
and IV relating to plaintiff’s overdetention.
The Court will grant defendant’s motion as to claims under Counts III and IV relating to
plaintiff’s improper housing and plaintiff’s body-cavity search.
In accordance with the Court’s previous order, ECF No. 18, the common-law claims
relating to plaintiff’s overdetention will remain stayed pending further proceedings in Barnes v.
District of Columbia, Civil No. 06-315 (D.D.C.).
A separate order consistent with this memorandum opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on November 9, 2010.
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