                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
JOHN DOE,                                 )
                                          )
            Plaintiff,                    )
                                          )
      v.                                  )                    Civil Action No. 08-0656 (PLF)
                                          )
DISTRICT OF COLUMBIA, et al.,             )
                                          )
            Defendants.                   )
__________________________________________)


                           MEMORANDUM OPINION AND ORDER

               This matter came before the Court on a motion to dismiss filed by defendants the

District of Columbia, the District of Columbia Department of Child & Family Services, and the

District of Columbia Department of Youth Rehabilitation Services (the “government

defendants”).1 Upon consideration of the government defendants’ motion, plaintiff’s opposition

thereto, the government defendants’ reply and the entire record in this case, the Court by Order of

March 31, 2009 (1) granted the government defendants’ motion to dismiss as non sui juris the

District of Columbia Department of Child & Family Services and the District of Columbia

Department of Youth Rehabilitation Services, and (2) denied the remainder of the government

defendants’ motion. This Memorandum Opinion and Order explains the reasoning underlying

the March 31, 2009 Order; requires the parties to re-evaluate the feasibility of settlement in light

of a recent legislative enactment; and directs the parties to submit new briefs if settlement fails.



       1
               The papers submitted in connection with this matter include: Defendants’ Motion
to Dismiss (“Mot.”); Plaintiff’s Opposition to Defendants’ Motion to Dismiss (“Opp.”); and
Reply to Plaintiff’s Opposition to Motion to Dismiss (“Reply”).
                                        I. BACKGROUND

               Plaintiff alleges that in 2004 he was placed in a youth shelter operated by Sasha

Bruce Youthwork, Inc. (“Sasha Bruce”), “a non-profit corporation operating in the District of

Columbia that contracts with [the District of Columbia Department of Youth Rehabilitation

Services] to provide temporary shelter for juveniles under the jurisdiction of the District of

Columbia Superior Court.” Defendant Sasha Bruce Youthwork’s Answer to Plaintiff’s Amended

Complaint ¶ 5.2 According to Mr. Doe, the government defendants placed him in the shelter

after he was charged with assaulting a relative. See Opp. at 2. He was 15 years old at the time.

Mr. Doe claims that he “remained in [the shelter] pending disposition of his [assault] case for

approximately seven months” without receiving a fact-finding hearing as contemplated by

District of Columbia law. First Amended Complaint ¶ 12 (“Compl.”); see also id. ¶ 22 (citing

16 D.C. CODE § 2310). He also claims that he was sexually assaulted by two older children

while in shelter care. See id. ¶ 26. On February 25, 2008, Mr. Doe filed suit in the Superior

Court of the District of Columbia against the government defendants and the youth shelter in

which he was placed. The case was subsequently removed to this Court pursuant to 28 U.S.C.

§ 1441 because Mr. Doe’s first amended complaint includes claims under the United States

Constitution and 42 U.S.C. § 1983. See Doe v. District of Columbia, Civil Action No. 08-0656,

Notice of Removal at 1-2 (D.D.C. April 15, 2008).


       2
                Mr. Doe’s first amended complaint improperly identified Reach Youth Shelter,
rather than Sasha Bruce, as a party defendant. On November 12, 2008, the Court granted Mr.
Doe leave to file a motion to amend his complaint for the purpose of substituting Sasha Bruce for
Reach Youth Shelter as a defendant. See Doe v. District of Columbia, Civil Action No. 08-0656,
Memorandum Opinion and Order at 2 (D.D.C. Nov. 12, 2008). To date, Mr. Doe has failed to do
so. In any event, neither Reach nor Sasha Bruce has filed a dispositive motion in this matter, so
neither figures into this Memorandum Opinion and Order.

                                                 2
               Mr. Doe asserts four claims against the government defendants. In Count I, Mr.

Doe seeks declaratory relief. Specifically, he seeks (1) “a judicial declaration that [the

government defendants’] policy of holding minor children in shelter detention for undetermined

periods of time greater than 30 days [without providing hearings on the charges for which they

are placed in shelter care] deprived [Mr. Doe] and deprives all other similarly-situated minor

children [of] their rights under the Fifth Amendment of the U.S. Constitution and laws of the

District of Columbia [– in particular, 16 D.C. CODE § 2310],” Compl. ¶ 41; and (2) “a judicial

declaration as to the duties of [the District of Columbia Department of Youth Rehabilitation

Services] and court social services with respect to the care and supervision of minor children

without parental control.” Id. ¶ 42. In Count II, Mr. Doe seeks relief under 42 U.S.C. § 1983,

arguing that he was “deprived of his constitutional rights and due process of law” because he was

forced to remain in the youth shelter without a hearing for an extended period of time and

endured sexual assault while there. Id. ¶ 45. In Count III, Mr. Doe seeks relief under a

negligence theory: that is, he argues that the government defendants’ failure “to properly train,

supervise, control, direct and monitor their agents” proximately caused the physical and

psychological injuries he suffered at the youth shelter. Id. ¶¶ 50-52. Finally, in Count IV

(incorrectly numbered as a second Count III), Mr. Doe asserts a common law claim for negligent

infliction of emotional distress. See id. ¶¶ 53-56.

               The government defendants have moved to dismiss Mr. Doe’s claims against

them. They contend that (1) Mr. Doe’s claims against the District of Columbia should be

dismissed pursuant to Rule 4(j) of the Federal Rules of Civil Procedure because Mr. Doe has

failed to serve the Mayor of the District of Columbia, and (2) Mr. Doe’s claims against the two


                                                  3
District of Columbia agencies should be dismissed because those agencies are non sui juris. The

government defendants further argue that (3) Counts I and II should be dismissed for failure to

state a claim because Mr. Doe was placed in “shelter care” rather than “secure detention,” and

therefore was not entitled to an expeditious fact-finding hearing under 16 D.C. CODE § 2310 (an

argument explained in greater detail below). Finally, the government defendants argue that

(4) the Court should decline to exercise supplemental jurisdiction over Mr. Doe’s common law

claims in Counts III and IV, but that even if the Court were to assert supplemental jurisdiction

over those claims, the Court should dismiss them pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure for failure to state a claim because the government defendants cannot be held

liable for the acts or omissions of an independent contractor like the youth shelter in which Mr.

Doe was placed. See Mot. at 1.


                                        II. DISCUSSION

                              A. Service on the District of Columbia

               On July 20, 2008, Mr. Doe filed proof of service upon the Mayor of the District of

Columbia, including an affidavit by the process server stating that service had been effected upon

“Ms. Tabatha Braxton.” Ms. Braxton is one of the individuals designated to receive service of

process on behalf of the Mayor of the District of Columbia. See Mot. at 6. Thus, as it appears

that Mr. Doe has properly served the Mayor – and as the government defendants have failed to

argue otherwise since Mr. Doe filed his proof of service – the Court declines to dismiss Mr.

Doe’s claims against the District of Columbia for lack of proper service.3


       3
              The government defendants do not argue that Mr. Doe’s service upon the District
of Columbia is defective in any other way.

                                                 4
                                     B. Non Sui Juris Agencies

               As noted above, Mr. Doe has asserted claims against two agencies of the District

of Columbia government: the District of Columbia Department of Child & Family Services and

the District of Columbia Department of Youth Rehabilitation Services. According to the

government defendants, Mr. Doe’s claims against these two agencies must be dismissed because

they are non sui juris – that is, “not suable as separate entities.” Mot. at 7 (citing several cases

explaining that agencies of the District of Columbia government are non sui juris absent specific

statutory provisions to the contrary). Mr. Doe rightly concedes this point. See Opp. at 4. The

Court therefore dismisses the two agencies as defendants.


                                           C. Other Issues

               Counts I and II of Mr. Doe’s first amended complaint are predicated on the claim

that the District of Columbia acted in an unlawful manner by keeping Mr. Doe in a youth shelter

for an extended period of time without a fact-finding hearing. In support of this claim, Mr. Doe

points to 16 D.C. CODE § 2310, entitled “Criteria for detaining children.” At the time Mr. Doe

filed suit, Section 2310 provided, in pertinent part, as follows:

               (a) A child shall not be placed in detention prior to a factfinding
               hearing or a dispositional hearing unless he is alleged to be
               delinquent or in need of supervision and unless it appears from
               available information that detention is required [to protect others or
               the child, or to secure the child’s presence at the next hearing.]

                                                ***

               (b) A child shall not be placed in shelter care prior to a factfinding
               hearing or a dispositional hearing unless it appears from available
               information that shelter care is required [to protect the child, or to
               ensure that the child receives adequate supervision and care.]


                                                   5
                                                ***

               (e) Fact finding hearings for children placed in secure detention
               shall be held within the time limits provided in this subsection.

               (1) Except as provided in this subsection, whenever a child has
               been placed in secure detention prior to a fact finding hearing
               pursuant to §§ 16-2310 through 16-2313, the fact finding hearing
               set forth in § 16-2316 shall commence not later than 30 days from
               the date at which the Division authorized the child to be detained
               pursuant to § 16-2312, unless the child is charged with murder,
               assault with intent to kill, first degree sexual abuse, burglary in the
               first degree, or robbery while armed, in which case the fact finding
               hearing shall commence not later than 45 days from the date at
               which the Division authorized the child to be securely detained.

                                                ***

               (4) Upon motion by or on behalf of the child, a child in secure
               detention shall be released from custody if the fact finding hearing
               is not commenced within the time period set forth in this
               subsection.

16 D.C. CODE § 2310 (2008) (emphasis added).

               The government defendants argue that Counts I and II must be dismissed for

failure to state a claim because Section 2310(e) guarantees an expeditious hearing only to

children placed in secure detention, not to children placed in shelter care. More specifically, the

government defendants argue that Mr. Doe’s

               procedural due process claims cannot survive unless this Court
               determines that the 30-day hearing provision of § 16-2310 creates a
               constitutionally protectable life, liberty or property interest
               applicable to children placed in shelter care. However, the plain
               text of § 16-2310(e)(1) clearly reveals that its 30-day limitation
               only applies to children placed in secure detention – not those
               placed in shelter care.

Mot. at 10. See also Reply at 3 (arguing that Mr. Doe “is not among the class of persons



                                                  6
protected by” Section 2310(e)). Alternatively, the government defendants argue that even if

Section 2310 does guarantee an expeditious hearing to children placed in shelter care, Counts I

and II still must be dismissed because Section 2310(e)(4) provides the “sole remedy” for children

denied an expeditious hearing. Mot. at 10. Mr. Doe responds that Section 2310 provides an

adequate basis for Counts I and II because his placement in the youth shelter amounted to a

“secure detention” within the meaning of Section 2310(e). See Opp. at 6.

               Oddly, neither party has moved to update or supplement their papers in light of

the Juvenile Speedy Trial Equity Congressional Review Emergency Act of 2009, see D.C. ACT

18-7 (2009) (the “2009 Act”), a piece of emergency legislation passed by the District of

Columbia Council on January 6, 2009 and signed into law by the Mayor on January 29, 2009.

The 2009 Act amends Section 2310 to make clear that a child placed in “shelter care,” like a

child placed in “secure detention,” is entitled to an expeditious hearing. For example, the 2009

Act amends Section 2310(e) as follows: “The lead-in text is amended by striking the phrase

‘placed in secure detention’ and inserting the phrase ‘ordered into secure detention or ordered

into shelter care’ in its place.” Id. (emphasis added). The 2009 Act also adds a new section,

Section 2310(e)(1)(C), which provides:

               whenever a child has been ordered into shelter care before a
               factfinding hearing pursuant to §§ 16-2310 through 16-2313, the
               factfinding hearing set forth in § 16-2316 shall commence not later
               than 45 days from the date at which the Family Court ordered the
               child to be placed in shelter care pursuant to § 16-2312.

Id. (emphasis added). Also potentially relevant to this case is new Section 2310(f), which

provides that “[n]o provision [of Section 2310] shall be interpreted as a bar to any claim of denial

of speedy trial as required by the Sixth Amendment of the United States Constitution.” Id.


                                                 7
                It is difficult to imagine that the 2009 Act does not substantially alter – or at least

inform – the parties’ arguments with respect to Counts I and II. The Court therefore concludes

that it would be unwise to address those arguments without first allowing the parties to update

and supplement their papers. Nor will the Court address the parties’ arguments with respect to

Counts III and IV at this time. It is entirely possible that the parties’ arguments with respect to

those counts might be affected by the 2009 Act as well and might influence this Court’s decision

as to whether to exercise supplemental jurisdiction. In any event, it would be more efficient to

resolve all of the parties’ substantive disputes at the same time. Thus, the Court will (1) deny

without prejudice the remainder of the government defendants’ motion to dismiss, and (2) order

the parties to submit new briefs that include a discussion of the 2009 Act and its import for this

case. The Court will also order the parties to re-evaluate the feasibility of settlement in light of

the 2009 Act.


                                         III. CONCLUSION

                For the reasons stated above, on March 31, 2009 the Court issued an Order

granting in part and denying in part the government defendants’ motion to dismiss. Consistent

with that Order, it is hereby

                ORDERED that the District of Columbia Department of Child & Family Services

and the District of Columbia Department of Youth Rehabilitation Services – but not the District

of Columbia – are dismissed as defendants in this matter; it is

                FURTHER ORDERED that on or before May 8, 2009, the parties shall meet and

confer to re-evaluate the feasibility of settlement in light of the 2009 Act; it is



                                                   8
               FURTHER ORDERED that, if the parties do not settle this matter, the

government defendants shall file a new dispositive motion on or before May 22, 2009. That new

dispositive motion must discuss the import for this case of the 2009 Act; it is

               FURTHER ORDERED that the plaintiff shall oppose the government defendants’

new dispositive motion on or before May 29, 2009; and it is

               FURTHER ORDERED that the government defendants shall file a reply in

support of their new dispositive motion on or before June 5, 2009.

               SO ORDERED.




                                              /s/_______________________________
                                              PAUL L. FRIEDMAN
                                              United States District Judge

DATE: April 21, 2009




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