                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


PHILLIPPE L. SMITH,                            :
                                               :
                       Plaintiff,              :       Civil Action No.:       09-1002 (RMU)
                                               :
                       v.                      :       Re Document Nos.:       12, 24
                                               :
ADRIAN FENTY et al.,                           :
                                               :
                       Defendants.             :

                                    MEMORANDUM OPINION

        GRANTING DEFENDANTS MILLER , FENTY AND BROWN ’S MOTIONS TO DISMISS

                                       I. INTRODUCTION

        In this civil action filed pro se, the plaintiff brings suit pursuant to 42 U.S.C. § 1983 (“§

1983”) for alleged actions taken during his confinement at the District of Columbia’s

Correctional Treatment Facility (“CTF”).1 Defendants Deborah Miller, Devon Brown and

District of Columbia Mayor Adrian Fenty (collectively “the moving defendants”) move to

dismiss the complaint against them pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

reasons discussed below the court grants these defendants’ motions to dismiss. Accordingly,

only employees of the Corrections Corporation of America (“CCA”) remain as defendants in this

case.



                                        II. BACKGROUND

        The plaintiff alleges generally that the defendants violated his rights under the First,


1
        “CTF is run under the auspices of [the District’s Department of Corrections], but [the
        Department] contracts the facility’s operation and management to Corrections Corporation of
        America.” Wormley v. U.S., 601 F. Supp. 2d 27, 31 (D.D.C. 2009).
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments during his confinement at CTF at an

unspecified time as well as committed various common law torts. See generally Compl. The

plaintiff sues Miller in her capacity as contract monitor for the District of Columbia Department

of Corrections (“DOC”), alleging that she “fail[ed] to investigate, and rectify [his] grievances,”

Compl. at 14,2 and that she, along with District of Columbia Mayor Adrian Fenty, DOC Director

Devon Brown and CTF Warden John Caulfield, “evaded obligations to insure that actions of

employe[e]s under their command [do not] endanger persons or interest of persons subject to

their custody,” id. at 22. The plaintiff also alleges that Fenty and Brown knowingly “turned [a]

blind eye” to his complaints against CTF, id. at 13, and faults Fenty for failing to “take away

[CCA’s] contract,” id. at 12. The plaintiff seeks monetary damages of $10 million and equitable

relief. Id. at 12.

        Defendant Miller filed a motion to dismiss on August 6, 2009, see generally Miller Mot.,

which the plaintiff opposed on September 10, 2009, see generally Pl.’s Opp’n. Defendants Fenty

and Brown filed a joint motion to dismiss on September 24, 2009. See generally Fenty & Brown

Mot. On September 28, 2009, the court advised the plaintiff, pursuant to Fox v. Strickland, 837

F.2d 507 (D.C. Cir. 1988), that failure to respond to defendants Fenty and Brown’s motion could

result in the court treating the motion as conceded.3 See generally Order (Sept. 28, 2009).

Nevertheless, the plaintiff never filed a response to that motion.



2
        Because the complaint is not numbered sequentially throughout, the court will refer to the
        electronic docket page numbers assigned thereto.
3
        The court issued a similar order after Miller filed her motion, see generally Order (Sept. 2,
        2009), and the plaintiff filed his opposition to Miller’s motion eight days later, see generally
        Pl.’s Opp’n.

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                                          III. ANALYSIS

                     1. Legal Standard for Dismissal Under Rule 12(b)(6)

        A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED . R. CIV . P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his

prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,

136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

        Yet, “[t]o survive a motion to dismiss, 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, 129 S.

Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56, instructing

courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of

facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when

the pleaded factual content “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to


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a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id.

       In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

                  2. The Court Grants the Defendants’ Motions to Dismiss

      a. The Court Dismisses the Claims Against Defendants Miller, Fenty and Brown

       Defendants Miller, Fenty and Brown argue that the plaintiff’s claims against them are

improper and should be asserted against the District of Columbia only. Miller Mot. at 3; Fenty &

Brown Mot. at 3-4. The plaintiff responds that he should be permitted to file an amended

complaint to cure any deficiency before the court grants defendant Miller’s motion to dismiss.

Pl.’s Opp’n at 1-2. Defendants Fenty and Brown, however, allege that allowing the plaintiff to

amend his complaint would be futile because the plaintiff’s § 1983 claim fails against the District

as well. Fenty & Brown Mot. at 6.

       To state a claim under § 1983, the plaintiff must allege the deprivation of “rights,

privileges, or immunities secured by the Constitution and laws” by a person acting under color of


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state, territorial or District of Columbia law. 42 U.S.C. § 1983. Defendants Miller, Fenty and

Brown correctly assert that the plaintiff has not stated a claim against them in their individual

capacities because the allegations in the complaint fail to establish their personal involvement in

any injurious conduct. See Iqbal, 129 S. Ct. at 1948 (noting that “[b]ecause vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution”). Even if the moving

defendants failed to investigate the plaintiff’s grievances at CTF, no constitutional deprivation is

either alleged or apparent in the plaintiff’s complaint, and negligence is not a cognizable claim

under § 1983. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In addition, the plaintiff’s

allegation that the moving defendants and other high-level District officials somehow “evaded

obligations” to assure that CTF employees protected the safety of prisoners in their charge

implies an official-capacity claim, which is in effect against the District of Columbia. See

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (explaining that “official capacity suit, in contrast

[to personal-capacity suits], ‘generally represent only another way of pleading an action against

an entity of which an officer is an agent.’” (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436

U.S. 659, 690 n.55 (1978)). Accordingly, the court dismisses the claims against these defendants

in their official capacities.

                  b. Amendment of the Plaintiff’s Complaint Would Be Futile

        Defendants Fenty and Brown further argue that, even if the plaintiff were allowed to

amend his complaint to add a § 1983 claim against the District of Columbia, such a claim would

be subject to dismissal. Fenty & Brown Mot. at 6-9. The plaintiff filed no response to

defendants Fenty and Brown’s motion.


                                                  5
       A municipality may be held liable under § 1983 only if the alleged wrongdoing resulted

from an unconstitutional policy, practice or custom promulgated or sanctioned by the

municipality. See Atchinson v. Dist. of Columbia, 73 F.3d 418, 420 (D.C. Cir. 1996). Liability

cannot be based on a theory of respondeat superior or vicarious acts. Monell, 436 U.S. at 691

(concluding “that a municipality cannot be held liable solely because it employs a tortfeasor”);

accord Iqbal, 129 S. Ct. at 1948 (citing cases). To determine municipal liability under § 1983,

the district court must conduct a two-step inquiry. Baker v. Dist. of Columbia, 326 F.3d 1302,

1306 (D.C. Cir. 2003). First, the court must determine whether the plaintiff establishes a

predicate constitutional or statutory violation. Id.; see also Hoai v. Vo, 935 F.2d 308, 312 (D.C.

Cir. 1991). If so, the court then determines whether the complaint alleges that a custom or policy

of the municipality caused the violation. Id.; see also Monell, 436 U.S. at 694.

       The plaintiff’s potential municipal liability claim fails to satisfy the second requirement

because it is premised on the allegedly independent, rogue acts of CTF employees, see Compl. at

14-19, rather than on an identifiable policy or custom of the District, see Monell, 436 U.S. at 694

(holding that “a local government may not be sued under § 1983 for an injury inflicted solely by

its employees or agents. Instead, it is when execution of a government’s policy or custom . . .

inflicts the injury that the government as an entity is responsible under § 1983”). Accordingly,

allowing the plaintiff to amend his complaint to add the District as a defendant would be futile.4

       In light of the court’s determination that the plaintiff has not stated a federal claim against

defendants Miller, Fenty and Brown, the court declines to exercise supplemental jurisdiction over


4
       Moreover, despite the court’s warning, see Order (Sept. 28, 2009), the plaintiff did not file a
       response to defendants Fenty and Brown’s motion to dismiss and has thus conceded that
       amending his complaint would be futile, see LCvR 7(b).

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any common law claims against those defendants. See 28 U.S.C. § 1367(c)(3).



                                      IV. CONCLUSION

        For the foregoing reasons, the court grants defendant Miller’s motion to dismiss and

grants defendants Fenty and Brown’s motion to dismiss. An Order consistent with this

Memorandum Opinion is separately and contemporaneously issued this 16th day of February

2010.



                                                             RICARDO M. URBINA
                                                            United States District Judge




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