Bah v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TEJAN BAH,
Plaintiff,
v. Civil Action No. 23-1248 (JDB)
DISTRICT OF COLUMBIA et al.,
Defendants.
MEMORANDUM OPINION
While a pretrial detainee at the D.C. jail, plaintiff Tejan Bah was attacked and repeatedly
stabbed by another inmate and suffered serious injuries. He sued the District of Columbia (the
“District”) and various unknown correctional officers, asserting a Fifth Amendment claim and
three common-law claims based on defendants’ alleged failure to control contraband and
adequately supervise inmates at the jail. Before the Court is the District’s motion to dismiss two
counts of Bah’s amended complaint. For the reasons that follow, the Court will deny the motion.
Background
On November 12, 2022, while a pretrial detainee at the D.C. jail, Tejan Bah got into an
argument with an inmate who wanted to cut the line to use a phone. Am. Compl. [ECF No. 7]
¶¶ 5–6, 8. No guard had “sight and sound” supervision over the phone area or this encounter. Id.
¶ 8. The other inmate had previously stabbed at least two people at the jail. Id. ¶ 9. Later that
day, this inmate approached Bah in the bathroom, where inmates were left unsupervised. Id. ¶ 11.
He was armed with a knife, which is prohibited contraband at the jail. Id. ¶ 12. He stabbed Bah
repeatedly, including in the lower back, abdomen, and right eye. Id. ¶¶ 13–14.
1
Bah underwent emergency surgery on his eye, but his vision is still severely impaired. Id.
¶¶ 15–16. It is not clear that he will ever regain full sight. Id. ¶ 16. Bah has since been released
from custody. Id. ¶ 5.
On March 14, 2023, Bah sued the District and various unknown correctional officers in
D.C. Superior Court seeking compensatory damages. Sup. Ct. Docs. [ECF No. 1-2] at 2. The
District removed the action to this Court and moved to dismiss two counts of Bah’s complaint.
See Notice of Removal [ECF No. 1]; Def.’s Partial Mot. to Dismiss [ECF No. 6]. Bah then filed
an amended complaint. 1 This operative complaint contains four counts: a Fifth Amendment due
process claim pursued under 42 U.S.C. § 1983 (Count One), as well as common-law claims for
negligence with respect to contraband control (Count Two), negligence with respect to supervision
of inmates (Count Three), and negligent supervision and training (Count Four). See Am. Compl.
¶¶ 2, 50–72. The first three claims are asserted against both the District and the correctional
officers; the last is asserted only against the District. See id. ¶¶ 50–72.
As relevant here, the amended complaint alleges that “[D.C. Department of Corrections’
(“DOC”)] policies, practices, and unheeded warnings led to the attack.” Id. at 3. In support of this
overarching charge, the complaint alleges the following:
(1) The D.C. jail has been “pervasively understaffed” and does not meet national standards
requiring correctional officers to maintain sight and sound supervision over all prisoners. Id. at 3,
¶¶ 17–22. The complaint cites an independent report noting that the D.C. jail is “chronically
understaffed” and a prior case in this District discussing staffing shortages. Id. ¶ 21 & n.1.
1
The Court will thus deny as moot the District’s motion to dismiss Bah’s initial complaint. See HIV &
Hepatitis Pol’y Inst. v. U.S. Dep’t of Health & Hum. Servs., Civil. A. No. 22-2604 (JDB), 2023 WL 6388932, at *7
n.2 (D.D.C. Sept. 29, 2023).
2
(2) In November 2021, the U.S. Marshals Service removed 400 individuals in its custody
from the D.C. jail after conducting a surprise inspection of jail conditions. Id. ¶ 24. In a
memorandum sent to DOC, the Marshals reported that entrance screening procedures at the jail
were “inconsistent and sloppy” and that the jail was full of a “strong smoke and odor of
marijuana”—evidence, the complaint alleges, that the introduction of contraband and the failure
to address known contraband was a serious problem. Id. ¶¶ 26–27. The Marshals’ memorandum
also noted that inmates had observable injuries with no corresponding medical or incident reports,
that some DOC staff were antagonizing inmates and directing them not to cooperate with the
Marshals, and that supervisors appeared indifferent to these issues. Id. ¶¶ 28–30.
(3) A July 2021 report by the D.C. Office of the Inspector General (“OIG”) identified
various deficiencies in DOC’s operating procedures related to use-of-force incidents. See id.¶¶ 33–38. This report noted, among other things, that lapses in security practices led to the use of
force to regain control of inmates and that 15% of DOC’s surveillance cameras either did not work
correctly or did not work at all. Id. ¶¶ 35, 37.
(4) DOC has for years had “excessively high levels of contraband weapons in circulation,”
leading to many serious armed assaults. Id. ¶ 39; see id. ¶ 49. The complaint recounts, in some
detail, eight prior stabbings at the D.C. jail that occurred between May 2008 and April 2018. See
id. ¶¶ 41–48. Two of these attacks occurred in a bathroom / shower area; the others largely
occurred inside cells. See id. Most of these attacks occurred when inmates were unsupervised,
and many involved oversights or mistakes by correctional officers. See id. These stabbings are
the ones personally known to defense counsel; the complaint alleges that they represent only a
fraction of the total number of armed assaults at the jail during this period. Id. ¶ 49.
3
The District moved to dismiss Counts One and Four of the amended complaint. See Def.’s
Partial Mot. to Dismiss Am. Compl. [ECF No. 9] (“Mot.”). 2 As to Count One, the District argues
that the complaint fails to plausibly allege (1) a Fifth Amendment violation and (2) the District’s
municipal liability for the alleged violation. See Mot. at 3–12. As to Count Four, the District
contends that the complaint fails to plausibly allege that the District received actual or constructive
notice that its correctional employees were behaving in a dangerous or otherwise incompetent
manner. See id. at 12–13.
Bah opposed the motion, see Pl.’s Opp’n to Mot. [ECF No. 12] (“Opp’n”), and the District
filed a reply, see Reply in Supp. of Mot. [ECF No. 14] (“Reply”). The District’s motion is thus
fully briefed and ripe for decision.
Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In deciding such a motion, courts must “accept the
[complaint’s] factual allegations as true and draw all reasonable inferences in the plaintiff’s favor,”
Sanchez v. Off. of State Superintendent of Educ., 45 F.4th 388, 395 (D.C. Cir. 2022), but need not
credit legal conclusions “couched as factual allegations,” Gulf Coast Mar. Supply, Inc. v. United
States, 867 F.3d 123, 128 (D.C. Cir. 2017) (per curiam).
2
The District states that its motion is only on behalf of itself, not the unnamed correctional officer defendants.
Reply in Supp. of Mot. [ECF No. 14] at 10 n.3.
4
Analysis
I. Count One—Fifth Amendment Claim
Bah asserts his Fifth Amendment claim under 42 U.S.C. § 1983. “To sustain a claim
against a municipality under § 1983, a plaintiff must show that the policy or custom of the
municipality caused a violation of the plaintiff’s constitutional rights.” Harvey v. District of
Columbia, 798 F.3d 1042, 1049 (D.C. Cir. 2015) (citing Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 694–95 (1978)). Accordingly, to survive a motion to dismiss, a § 1983 claim
for municipal liability must plausibly allege both (1) “a predicate constitutional violation” and (2)
“a custom or policy of the municipality [that] caused the violation.” Baker v. District of Columbia,
326 F.3d 1302, 1306 (D.C. Cir. 2003). The District advances arguments as to both prongs of this
inquiry.
A. Fifth Amendment Violation
Bah alleges that DOC correctional officers violated the Fifth Amendment by failing to
maintain a reasonably safe environment and failing to protect him from the other inmate’s attack.
See Am. Compl. ¶¶ 50–54; Opp’n at 3–4. “Prison officials have a duty to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (cleaned
up). The constitutional basis for a claim premised on a violation of that duty differs depending on
an inmate’s status: pretrial detainees’ claims are based on the Fifth or Fourteenth Amendment’s
Due Process Clause, 3 while convicted inmates must rely on the Eighth Amendment’s Cruel and
Unusual Punishment Clause. See Brogsdale v. Barry, 926 F.2d 1184, 1187 (D.C. Cir. 1991); see
also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). That is so because a pretrial detainee like
3
Due process violations by the District of Columbia are properly challenged under the Fifth Amendment,
while those by states are properly challenged under the Fourteenth Amendment. See Atherton v. D.C. Off. of Mayor,
567 F.3d 672, 689 (D.C. Cir. 2009).
5
Bah may not be “punished” at all prior to conviction, whereas a convicted individual may be
punished so long as that punishment is not “cruel and unusual.” Bell, 441 U.S. at 535 n.16. Pretrial
detainees’ Fifth Amendment rights are thus “at least as great as the analogous Eighth Amendment
right[s].” Hardy v. District of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (cleaned up)
(collecting cases).
The general framework for failure-to-protect claims is as follows: an inmate must show (1)
“that he is incarcerated under conditions posing a substantial risk of serious harm” and (2) that a
prison official acted with “deliberate indifference” with respect to that risk. Farmer, 511 U.S. at
834. 4 The District assumes that Bah has sufficiently alleged the first prong; its sole challenge as
to the second prong is that Bah’s complaint fails to allege that correctional officers acted with
subjective deliberate indifference. See Mot. at 12. In other words, the District argues that Bah
must allege that correctional officers knew that Bah faced a risk of serious harm, not merely that
they should have known as much. See id. (“[Bah] does not allege that anyone at the D.C. Jail did
have knowledge of the argument or the other inmate’s alleged prior acts. ‘Should have’ and ‘would
have’ is not the same as ‘did.’”). This limited challenge is unavailing under Kingsley v.
Hendrickson, 576 U.S. 389 (2015), which is best read to require application of an objective rather
than subjective standard to pretrial detainees’ Fifth Amendment deliberate indifference claims.
In Farmer v. Brennan, the Supreme Court held that, for purposes of Eighth Amendment
failure-to-protect claims, a convicted-inmate plaintiff must show that a prison official was
subjectively deliberately indifferent to the risk of harm to the plaintiff. See 511 U.S. at 828–29,
4
This framework originated in the Eighth Amendment context. See Farmer, 511 U.S. at 834. Bah suggests—
with little explanation—that under Kingsley v. Hendrickson, 576 U.S. 389 (2015), this entire framework is gone and
the only question for a Fifth Amendment failure-to-protect claim is whether the assault was “objectively
unreasonable.” Opp’n at 4 (internal quotation marks omitted); see id. at 3. But while Kingsley has some bearing on
failure-to-protect claims, it does not wholly displace the Farmer framework. See Westmoreland v. Butler County, 29
F.4th 721, 729 (6th Cir. 2022) (incorporating Kingsley’s objective analysis into Farmer framework); Castro v. County
of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (same).
6
837. That is, “a prison official cannot be found liable under the Eighth Amendment . . . unless the
official knows of and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837. The Court’s conclusion was grounded in
“the text of the [Eighth] Amendment,” which “outlaws cruel and unusual ‘punishments’” but not
“cruel and unusual ‘conditions.’” Id. Absent actual knowledge of a risk, an official’s failure to
alleviate that risk could not be fairly “condemned as the infliction of punishment.” Id. at 838.
Twenty-some years later, in Kingsley v. Hendrickson, the Supreme Court held that a
pretrial detainee need only show that correctional officers’ use of force was objectively
unreasonable for purposes of an excessive force claim under the Fourteenth Amendment’s Due
Process Clause. See 576 U.S. at 391–92. Put differently, the inquiry turns on the “perspective of
a reasonable officer,” not the subjective state of mind of individual correctional-officer defendants
accused of using excessive force. Id. at 397; see id. at 396. In adopting this objective standard,
the Kingsley Court reasoned that “proof of intent (or motive) to punish is [not] required for a
pretrial detainee to prevail on a claim that his due process rights were violated”—rather, “a pretrial
detainee can prevail by providing only objective evidence” as to the impermissibility of “the
challenged governmental action.” Id. at 398 (citing Bell, 441 U.S. at 538, 541–43, 561). And in
rejecting the defendants’ reliance on Eighth Amendment jurisprudence, the Court drew an explicit
contrast between Due Process Clause claims and claims brought under the Eighth Amendment’s
Cruel and Unusual Punishment Clause: “The language of the two Clauses differs, and the nature
of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners)
cannot be punished at all . . . .” Id. at 400.
7
Kingsley involved an excessive force claim, not a deliberate indifference claim. But a
majority of the circuits to consider the question have read Kingsley to modify the subjective
component of pretrial detainees’ deliberate indifference claims, including failure-to-protect
claims. See Westmoreland v. Butler County, 29 F.4th 721, 726–29 (6th Cir. 2022) (failure-to-
protect claim); Kemp v. Fulton County, 27 F.4th 491, 495–97 (7th Cir. 2022) (same); Castro v.
County of Los Angeles, 833 F.3d 1060, 1068–71 (9th Cir. 2016) (en banc) (same); see also Short
v. Hartman, 87 F.4th 593 (4th Cir. 2023) (medical deliberate indifference claim); Darnell v.
Pineiro, 849 F.3d 17, 23, 26, 32–36 (2d Cir. 2017) (conditions-of-confinement deliberate
indifference claim, including failure-to-protect allegations). These cases generally reason that a
subjective rather than objective requirement as to correctional officers’ knowledge of a substantial
risk to a pretrial detainee “cannot be reconciled with Kingsley’s language, reasoning, and
[emphasis on] the different status of pretrial detainees.” Westmoreland, 29 F.4th at 729 (quoting
Kemp, 27 F.4th at 497).
The D.C. Circuit has yet to weigh in. However, every judge in this District to consider the
matter has agreed with the majority view and extended Kingsley’s objective standard to other
claims by pretrial detainees. See United States v. Worrell, Crim. A. No. 21-292 (RCL), 2021 WL
2366934, at *10, *14 (D.D.C. June 9, 2021); O.M.G. v. Wolf, 474 F. Supp. 3d 274, 286–87 (D.D.C.
2020) (JEB); Banks v. Booth, 468 F. Supp. 3d 101, 110–11 (D.D.C. 2020) (CKK); C.G.B. v. Wolf,
464 F. Supp. 3d 174, 211 & n.31 (D.D.C. 2020) (CRC); United States v. Otunyo, Crim. A. No.
18-251 (BAH), 2020 WL 2065041, at *12–13 (D.D.C. Apr. 28, 2020). 5 The District attempts to
distinguish these cases as involving conditions-of-confinement claims generally, not failure-to-
5
The District repeatedly cites Hardy, 601 F. Supp. 2d 182. See Mot. at 11–12; Reply at 6. That reliance is
misplaced. For one thing, Hardy predated Kingsley by six years. For another, Hardy did not need to explore any
potential delta between Eighth and Fifth Amendment rights because the plaintiffs in that case prevailed even under
the more demanding Eighth Amendment standard. See 601 F. Supp. 2d at 188–89, 191.
8
protect claims specifically. See Reply at 7. Yet the District offers no reason why the same
reasoning does not apply to failure-to-protect claims, and various of these cases favorably cited
failure-to-protect precedents in support of their reasoning. See Banks, 468 F. Supp. 3d at 110–11;
C.G.B., 464 F. Supp. 3d at 211 n.31.
The District also cites Fifth Circuit cases that declined to extend Kingsley’s objective
standard. Reply at 7 (first citing Crandel v. Hall, 75 F.4th 537, 544 (5th Cir. 2023), cert. denied,
No. 23-317, 2024 WL 674720 (U.S. Feb. 20, 2024); and then citing Cope v. Cogdill, 3 F.4th 198,
207 n.7 (5th Cir. 2021)). Importantly, however, these cases relied on preexisting Fifth Circuit
precedent specifically addressing deliberate-indifference claims brought by pretrial detainees. See
Cope, 3 F.4th at 207 n.7 (citing Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996)); Crandel,
75 F.4th at 544. The District has not cited, and this Court is not aware of, comparable precedent
in this circuit. To the contrary, the D.C. Circuit has, albeit in a slightly different context,
recognized important distinctions between pretrial detainees’ Fifth Amendment rights and
convicted prisoners’ Eighth Amendment rights. See Brogsdale, 926 F.2d at 1189–91. 6
The Court joins the majority view of the circuits and the judges in this District that, post-
Kingsley, pretrial detainees’ deliberate indifference claims should be analyzed under an objective
rather than subjective standard. And the parties’ sparring is limited to this purely legal question;
the District assumes that Bah has otherwise plausibly alleged a predicate Fifth Amendment
6
The Eighth, Tenth, and Eleventh Circuits have also declined to extend Kingsley. The Eleventh Circuit did
so based solely on existing circuit precedent, see Nam Dang ex rel. Vina Dang v. Sheriff, Seminole Cnty. Fla., 871
F.3d 1272, 1279 n.2 (11th Cir. 2017), while the Tenth Circuit did so in part based on existing precedent, see Strain v.
Regalado, 977 F.3d 984, 989–93 (10th Cir. 2020). The Eighth Circuit’s analysis consisted of a single sentence in a
footnote. See Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018) (“Kingsley does not control because
it was an excessive force case, not a deliberate indifference case.”).
9
violation. See Mot. at 11–12. 7 Hence, the District’s sole contention as to why Bah has failed to
plausibly allege a predicate constitutional violation is unavailing.
B. Monell Liability
The question thus becomes whether Bah has plausibly alleged that a custom or policy of
the District caused this violation. There are various ways of establishing such a custom or policy:
(1) “the explicit setting of a policy by the government that violates the Constitution,” (2) “the
action of a policy maker within the government,” (3) “the adoption through a knowing failure to
act by a policy maker of actions by his subordinates that are so consistent that they have become
‘custom,’” or (4) “the failure of the government to respond to a need . . . 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; see also Hurd v. District of Columbia, 997 F.3d 332, 337
(D.C. Cir. 2021). 8 The parties focus on the third and fourth methods of establishing liability. See
Mot. at 4–10; Opp’n at 4–9.
To establish liability under the third method, “a plaintiff must show that the municipality
‘knowingly ignore[d] a practice that was consistent enough to constitute custom,’” Hurd, 997 F.3d
at 338 (alteration in original) (quoting Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir.
2004))—i.e., a practice that was “persistent and widespread,” id. (quoting Connick v. Thompson,
563 U.S. 51, 61 (2011)). Under the fourth method, when “faced with actual or constructive
knowledge that its agents will probably violate constitutional rights, [a] city may not adopt a policy
7
The Court observes, however, that allegations bearing on this Fifth Amendment failure-to-protect claim
include a general risk of inmate-on-inmate violence at the jail, see Am. Compl. ¶¶ 17–49, the fact that the inmate who
stabbed Bah had previously stabbed at least two other inmates, id. ¶ 9, and the fact that Bah had gotten into an argument
with that inmate earlier in the day in an area that should have been supervised, id. ¶ 8.
8
This “deliberate indifference” inquiry should not be confused with the “deliberate indifference” required to
find an officer liable on a Fifth Amendment failure-to-protect claim. While the terminology is the same, the inquiries
serve different purposes. See Baker, 326 F.3d at 1305–07.
10
of inaction.” Id. at 339 (quoting Warren, 353 F.3d at 39). This actual or constructive notice “may
be shown by demonstrating ‘[a] pattern of similar constitutional violations.’” Id. (alteration in
original) (quoting Connick, 563 U.S. at 62). For present purposes, there is substantial overlap
between the two inquiries: “Where a plaintiff is alleging deliberate indifference based on a city’s
failure to respond to a pattern of misconduct . . . that analysis overlaps with the consideration of
whether policymakers knowingly ignored a custom . . . .” Tyson v. District of Columbia, Civ. A
No. 20-1450 (RC), 2021 WL 4860685, at *13 (D.D.C. Oct. 19, 2021); see also Alexander v. Gov’t
of District of Columbia, Civ. A. No. 17-1885 (ABJ), 2020 WL 3573462, at *8 (D.D.C. July 1,
2020).
Here, Bah alleges that his Fifth Amendment rights were violated and that this violation was
caused by a custom or policy of the District because the District “failed to train its correctional
officers concerning contraband control; and failed to supervise them adequately; and failed to staff
housing units with an adequate level of staffing so as to ensure a reasonable level of inmate
supervision.” Am. Compl. ¶ 53. He further alleges that the District had knowledge that, absent
such training, supervision, and staffing, its employees would likely violate individuals’
constitutional rights. Id. ¶¶ 23–49. He relies heavily on a history of past inmate stabbings—with
contraband weapons, in unsupervised situations, and due to correctional officer mistakes—which
he characterizes as “unheeded warnings” of threats to inmate safety. Id. ¶¶ 39–49; see Opp’n at
4–7. He also relies on information including the November 2021 Marshals’ memorandum and the
July 2021 OIG report as evidence that the District had notice of “lack of staffing,” “severe security
lapses,” the presence of contraband, and other issues at the D.C. jail. Am. Compl. ¶¶ 23, 26–27,
33; see Opp’n at 6–8. Bah argues that “there is no leap of logic required to understand that if there
were no contraband, and the Jail had a properly supervised fully-staffed cohort of correctional
11
officers, a man who had previously stabbed other Jail residents would not have been able to obtain
a weapon, follow a man he had argued with that day into the bathroom, and stab him in the
eyeball.” Opp’n at 8.
The question is thus not whether Bah has even attempted to establish Monell liability, but
rather whether his allegations have sufficient “factual heft” to do so. Tyson, 2021 WL 4860685,
at *10. 9 Viewing Bah’s allegations as a whole and drawing reasonable inferences in his favor—
as the Court must at this early stage—the Court concludes that Bah has plausibly alleged municipal
liability. He has alleged serious issues with respect to contraband weapons, inadequate staffing,
and inadequate supervision at the D.C. jail, that the District was aware of these issues, and that
these issues caused the alleged violation of his Fifth Amendment rights.
Contrary to the District’s contention, Bah’s allegations of past stabbings in unsupervised
situations at the D.C. jail are entitled to some weight here. The District maintains that only two of
these prior stabbings—the ones that occurred in a bathroom or shower—are relevant. See Mot. at
5–6, 9–10; Reply at 4. But while the probative value of those two incidents may be heightened
given that Bah was also stabbed in a bathroom, it does not follow that stabbings that did not occur
in a bathroom are irrelevant. Bah alleges failures with respect to controlling contraband weapons
and supervising prisoners in the jail. Prior stabbings—wherever they occurred in the jail—bear
on this inquiry. After all, “[t]he standard for deliberate indifference requires only a ‘pattern of
similar constitutional violations by untrained employees,’ rather than an exact duplication.” Parker
9
Cf. Irving v. District of Columbia, Civ. A. No. 19-3818 (RDM), 2021 WL 495041, at *1, *5–6 (D.D.C.
Feb. 9, 2021) (granting motion to dismiss because pro se plaintiff—the victim of March 2019 stabbing at the D.C.
jail—“fail[ed] to articulate any connection” to a municipal policy and failed to respond to the District’s Monell
arguments); Webster v. District of Columbia, Civ. A. No. 20-300 (JDB), 2020 WL 4698436, at *1, *3 (D.D.C. Aug.
13, 2020) (granting partial motion to dismiss because plaintiff—who was stabbed at the D.C. jail in November 2018,
then stabbed again by the same inmate less than a month later—provided “no factual allegations to contextualize what
policy, custom, or long-term procedural oversights” gave rise to any constitutional violation). The Court observes
that these stabbings allegedly occurred after the stabbing incidents cited in Bah’s complaint.
12
v. LeBlanc, 73 F.4th 400, 406 (5th Cir. 2023) (quoting Connick, 563 U.S. at 62); see also Hurd,
997 F.3d at 340.
The District also argues that these eight prior stabbings cannot support a plausible
allegation of a persistent custom or a pattern of similar constitutional violations because these eight
incidents occurred over a ten-year period, with the most recent incident occurring four-and-a-half
years before the attack on Bah. See Mot. at 6; Reply at 4. This is a close question. Two
considerations ultimately lead the Court to reject the District’s categorical position.
First, this “numerosity” argument is before the Court on a motion to dismiss, not at
summary judgment. This distinction matters. There is never any “strict numerical requirement on
the number of other examples that must be alleged, rather, the level of corroboration needed
depends on the context and similarity.” Tyson, 2021 WL 4860685, at *10 (citing Carter v. District
of Columbia, 795 F.2d 116, 124 (D.C. Cir. 1986)). And courts unsurprisingly hold plaintiffs to a
less demanding standard in terms of the number of prior comparators at the motion-to-dismiss
stage than at summary judgment. See Lipman v. Budish, 974 F.3d 726, 748 n.11 (6th Cir. 2020)
(concluding that “[t]his differing procedural posture makes all the difference” because it may be
very difficult for plaintiffs “to have secured evidence of misconduct with respect to other
individuals” at the motion-to-dismiss stage); see also Hildreth v. Butler, 960 F.3d 420, 428 & n.6
(7th Cir. 2020) (collecting ten circuit cases “that have considered the frequency of instances to
establish a widespread practice”—all of which were decided at summary judgment or later).
Tellingly, neither of the cases the District cites for the proposition that Bah’s numerical allegations
are insufficient was decided on a motion to dismiss. See Carter, 795 F.2d at 123 (judgment as a
matter of law); Buie v. District of Columbia, Civ. A. No. 16-1920 (CKK), 2021 WL 4061142, at
*18 (D.D.C. Sept. 7, 2021) (summary judgment); see also Mot. at 6. And while the Court does
13
not place significant weight on Bah’s allegation that these eight incidents make up only “a fraction”
of the actual number of stabbings at the jail, Am. Compl. ¶ 49, it bears noting that these incidents
are presented as only those personally known to counsel rather than as a comprehensive accounting
of such attacks.
Second, the question is not whether these prior stabbings alone are sufficient to plausibly
allege municipal liability, but whether they do so in conjunction with Bah’s other allegations.
While the District takes a “slice-and-dice” approach to Bah’s complaint, see, e.g., Reply at 4, the
Court is compelled to “consider the allegations in their totality,” Vila v. Inter-Am. Inv. Corp., 570
F.3d 274, 285 (D.C. Cir. 2009); see also GOLO, LLC v. Goli Nutrition, Inc., Civ. A. No. 20-667
(RGA), 2023 WL 2456067, at *1 (D. Del. Mar. 10, 2023) (“[The Court’s] obligation is not to read
each allegation in isolation nor to nitpick a complaint line by line, paragraph by paragraph.”
(internal quotation marks omitted)).
Here, Bah also points to various other information, including the November 2021
Marshals’ memorandum and July 2021 OIG report. The Marshals’ memorandum concluded that
entrance screening procedures at the jail were “inconsistent and sloppy” and that the jail was full
of marijuana smoke. Am. Compl. ¶¶ 26–27. Contrary to the District’s view, see Mot. at 6, these
observations support a reasonable inference that correctional officers were broadly deficient in
controlling contraband, including contraband weapons. The Marshals’ memorandum’s conclusion
that inmates had observable injuries with no corresponding reports supports the inference that
correctional officers were “not properly observing, preventing, or addressing injuries.” Am.
Compl. ¶ 28. And the memorandum’s other conclusions—and the Marshals’ notable decision to
remove individuals in their custody from the jail—bear on jail conditions and the District’s alleged
failure to properly supervise staff. See id. ¶¶ 23–32.
14
Bah further cites an independent report and prior case noting pervasive understaffing at the
jail, id. ¶¶ 17–22, as well as the D.C. OIG report. While the OIG report is perhaps not as probative,
it supports the reasonable inference that non-functioning surveillance cameras in the jail heighten
issues associated with staffing shortages. See id. ¶¶ 37–38.
Any one of these reports might be insufficient when considered in isolation. But taken as
a whole, and in conjunction with Bah’s allegations of a history of prior stabbings with contraband
weapons, they are sufficient to plausibly allege a municipal policy or custom at this stage.
The District’s remaining contentions lack merit and will be addressed only briefly: The
District intimates that contraband control failures, inadequate supervision, and inadequate staffing
are insufficiently “specific” issues to make out a custom or a form of misconduct of which the
District should have been aware. See Mot. at 5, 7, 9. The District does not meaningfully develop
this argument. And the cases cited by the District stand only for the proposition that a specific
custom or form of misconduct must be identified, not that it must be defined at an extremely
granular level of detail. See Young v. District of Columbia, 107 F. Supp. 3d 69, 81 (D.D.C. 2015);
Bell v. District of Columbia, 82 F. Supp. 3d 151, 157–58 (D.D.C. 2015). Further, D.C. Circuit
case law cuts against any such requirement. See Morgan v. District of Columbia, 824 F.2d 1049,
1060–61 (D.C. Cir. 1987) (basing deliberate indifference conclusion on jail “overcrowding”).
The District’s contention that Bah fails to allege “any connection” between the attack on
him and a policy or custom, Mot. at 7; Reply at 5, is belied by the plain language of the complaint.
Bah’s complaint alleges that “DOC policies, practices, and unheeded warnings led to the attack,”
Am. Compl. at 3, and the following allegations clearly relate to alleged deficiencies that bear on
Bah’s case, see id. ¶¶ 17–49. The District’s argument that Bah fails to allege that the District was
15
aware of a lapse in training with respect to contraband control, see Mot. at 9, is similarly contrary
to the language of the complaint, see Am. Compl. ¶¶ 26–27, 39–49.
The District maintains that “the metal knife used by [Bah’s] inmate-assailant . . . may very
well have been fashioned by the inmate inside the jail” rather than being “smuggled in from
outside,” and this possibility defeats any causal link between a failure to train correctional officers
on contraband control and the attack on Bah. Mot. at 10. This argument rests on a faulty premise.
As Bah’s complaint alleges and common sense affirms, “contraband control” includes both efforts
to prevent the introduction of contraband to a facility and to control contraband inside. See Am.
Compl. ¶¶ 12, 27, 39. That the knife used to stab Bah hypothetically may have been fashioned
inside the jail does not mean that it is not “contraband.” 10
* * *
Hence, the Court concludes that Bah has plausibly alleged both a Fifth Amendment
violation (at least insofar as the District’s limited challenge goes) and Monell liability. Bah’s Fifth
Amendment claim thus survives the District’s motion to dismiss.
II. Count Four—Negligent Supervision and Training Claim
The District also moves to dismiss Count Four, Bah’s negligent supervision and training
claim. Under D.C. law, “[t]o establish a cause of action for negligent supervision [and training],
a plaintiff must show: that the employer knew or should have known its employee behaved in a
10
Because the Court concludes that Bah has plausibly alleged Monell liability under the custom or deliberate
indifference methods with respect to jail conditions generally, it need not reach Bah’s argument as to the District’s
deliberate indifference to the threat posed to him specifically by the other inmate. See Opp’n at 8–9. While Bah’s
argument finds some support in the case law, it appears to blur the line between Fifth Amendment deliberate
indifference (here, involving knowledge by correctional officers) and Monell deliberate indifference (here, involving
knowledge by District policymakers).
The Court will construe Bah’s arguments as to general jail conditions as bearing on both the custom and
deliberate indifference methods of establishing Monell liability. See Opp’n at 4–8. Having contended that these
analyses overlap, Mot. at 8 n.1, the District cannot now be heard to fault Bah for not specifically directing each of his
arguments to each method, see Reply at 6.
16
dangerous or otherwise incompetent manner, and that the employer, armed with that actual or
constructive knowledge failed to adequately supervise the employee.” Blair v. District of
Columbia, 190 A.3d 212, 229 (D.C. 2018) (quoting Phelan v. City of Mount Rainier, 805 A.2d
930, 937–38 (D.C. 2002)). The District’s sole contention as to this claim is that Bah does not
allege that the District had actual or constructive “notice” of “dangerous or otherwise incompetent
behavior” on the part of correctional officers. Mot. at 13; see Reply at 8–9. 11 This argument fails
for many of the reasons previously stated as to Monell liability. Bah plausibly alleges that the
District had actual or constructive knowledge that correctional officers at the D.C. jail were not
competently discharging their responsibilities. See, e.g., Am. Compl. ¶¶ 26–31 (Marshals’
memorandum to DOC detailing deficient entrance screening procedures, presence of marijuana,
inmates with “observable injuries” but no corresponding reports, and correctional officers
antagonizing inmates and telling them not to cooperate with the Marshals); id. ¶¶ 39–48 (previous
stabbing incidents, many involving mistakes by correctional officers and/or officers’ failure to
observe the attack).
III. Conclusion
For the foregoing reasons, the Court will deny the District’s motion to dismiss Counts One
and Four of Bah’s amended complaint. An accompanying Order will issue on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: March 7, 2024
11
In its opening brief, the District also contended that Bah needed to “identify” a specific employee who
behaved in a dangerous or incompetent manner for purposes of this claim. Mot. at 13. But the case cited by the
District does not support that proposition, see Blakeney v. O’Donnell, 117 F. Supp. 3d 6, 21 (D.D.C. 2015), and the
District concedes as much in its reply brief, see Reply at 8.
17