                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
                                        )
DANIEL SIMMONS,                        )
      Plaintiff,                       )
                                       )
             v.                        )    Civil Action No. 07-493 (RCL)
                                       )
DISTRICT OF COLUMBIA, et al.,          )
      Defendants.                      )
                                       )
_______________________________________)


                                  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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