                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 ANGELA J. SMITH, Personal
 Representative of the Estate of GILBERT
 SAMPSON SMITH, JR., and as
 Grandmother and Next Friend of Kianna
 Smith, Minor Daughter of GILBERT
 SAMPSON SMITH, JR.,

         Plaintiff,
                 v.                                         Civil Action No. 09-0618 (JDB)
 DISTRICT OF COLUMBIA,

         Defendant.


                                  MEMORANDUM OPINION

       This case arises from the death of Gilbert Smith, Jr., an inmate who was incarcerated at

the Correctional Treatment Facility located in the District of Columbia. The Correctional

Treatment Facility is a private prison owned and operated by the Corrections Corporation of

America that houses inmates in the custody of the District's Department of Corporations. Angela

Smith, personal representative of Mr. Smith's estate, brings this action against the District of

Columbia, alleging that the District "deliberately failed to treat or provide treatment for the

serious and life threatening medical problems being suffered by the deceased." Compl. ¶ 15.

She asserts claims for the following: (1) violation of the Eighth Amendment pursuant to 42

U.S.C. § 1983; (2) negligent provision of medical care; (3) survival on behalf of both herself and

Gilbert Smith's daughter; and (4) wrongful death.

       Before the Court is [7] defendant District of Columbia's motion to dismiss, or in the

alternative for summary judgment. Upon careful consideration of the District's motion, the
parties' several memoranda and the entire record herein, and for the reasons stated below, the

Court will grant the District's motion.

                                          BACKGROUND

       Gilbert Smith, Jr. was incarcerated at the Correctional Treatment Facility in the District of

Columbia for seven months. Compl. ¶ 12. The Corrections Corporation of America operates the

Correctional Treatment Facility pursuant to a contract with the District of Columbia and, Ms.

Smith alleges, provides medical care and treatment there along with Unity Healthcare, Inc.

Compl. ¶¶ 1, 8.

       Prior to being incarcerated, Gilbert Smith "was partially paralyzed and confined to a

wheelchair as a result of gunshot wounds." Compl. ¶ 11. While in prison, these injuries, Angela

Smith contends, prompted Gilbert Smith to make repeated "requests for medical care treatment,

and attention including, but not limited to, providing medication when ordered by his physicians,

providing prompt and adequate dressing changes to prevent the formation and growth of

decubitus sores, [and] providing sanitary cell conditions." Compl. ¶ 12. She alleges, however,

that the District failed to "provide a healthcare system that included prompt, proper, adequate,

and reasonable medical care and treatment to all persons incarcerated under their care, custody,

and supervision." Compl. ¶ 13. In so doing, Ms. Smith asserts that it "failed to comply with

established standards of care." Compl. ¶ 13.

        Gilbert Smith was released from custody at the Correctional Treatment Facility in May

2007. Compl. ¶ 11. He died on January 19, 2008, allegedly as a result of injuries and damages

suffered while incarcerated. Compl. ¶ 30. Plaintiff Angela Smith brought this action as personal

representative of Mr. Smith's estate, and as next friend of Mr. Smith's daughter. Compl. ¶¶ 1, 7.


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                                    STANDARD OF REVIEW

       All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a

short and plain statement of the claim showing that the pleader is entitled to relief,' in order to

'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed

factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide

the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and

conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S.

at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To 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) (quoting

Twombly, 550 U.S. at 570); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d

672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach"

under which a court first identifies the factual allegations entitled to an assumption of truth and

then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

       The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura

Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to

dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should


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be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &

Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bur. of Prisons, 591 F.2d 966, 968

(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The

plaintiff must be given every favorable inference that may be drawn from the allegations of fact.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if

such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion

couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further

factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also

Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (the

court has "never accepted legal conclusions cast in the form of factual allegations").

                                            ANALYSIS

I.     Section 1983 Claim for Violation of the Eighth Amendment

       Municipalities, like the District of Columbia, do not enjoy absolute immunity from

section 1983 liability. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690-91

(1978). They may be held liable "where the municipality itself causes the constitutional violation

at issue." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). But municipalities are not

liable under section 1983 pursuant to a theory of "[r]espondeat superior or vicarious liability."

Id.; see also Monell, 436 U.S. at 694-95. Therefore, "[u]nder Monell, municipalities are liable

for their agents' constitutional torts only if the agents acted pursuant to municipal policy or

custom." Warren v. Dist. of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004); see also Monell, 436


                                                 -4-
U.S. at 694. The "first inquiry in any case alleging municipal liability under § 1983 is the

question whether there is a direct causal link between a municipal policy or custom and the

alleged constitutional deprivation." Harris, 489 U.S. at 385.

       A municipality's custom or policy may "cause" a constitutional violation under several

different circumstances. "[F]or instance, the municipality or one of its policymakers [could have]

explicitly adopted the policy that was 'the moving force of the constitutional violation.'" Warren,

353 F.3d at 39 (quoting Monell, 436 U.S. at 694). "Or a policymaker could knowingly ignore a

practice that was consistent enough to constitute custom," thereby leading to a violation. Id. Or

the "municipality's conduct may evidence a 'deliberate indifference' to the rights of its

inhabitants." Harris, 489 U.S. at 388; accord Baker v. Dist. of Columbia, 326 F.3d 1302, 1306

(D.C. Cir. 2003)). Here, Ms. Smith adopts the "deliberate indifference" theory of municipal

liability -- where "'the municipality knew or should have known of the risk of constitutional

violations,' but did not act." Warren, 353 F.3d at 39 (quoting Baker, 326 F.3d at 1306).

       Ms. Smith offers two allegations to support her claim that the District was deliberately

indifferent. First, she contends that

       there were systemic problems associated with referrals for off-site medical
       treatment of inmates and specialists care that were known to defendant D.C. The
       defendant failed to take reasonable actions to ensure that systemic problems were
       addressed.

Compl. ¶ 14. Second, she asserts that

       defendant knew or should have known that there were unreasonable delays
       associated with the deceased's treatment and failed to take the steps necessary to
       correct systemic problems associated with such delays.

Compl. ¶ 20. In short, Ms. Smith alleges that the District knew or should have known about



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supposedly ongoing Eighth Amendment violations regarding Gilbert Smith's medical care.

       These allegations, however, cannot survive the District's motion to dismiss. They do

nothing more than recite the requisite causal elements of custom or policy liability based on

deliberate indifference -- that is, that the District "knew or should have known" about possible

constitutional violations yet failed to act. Compl. ¶¶ 14, 20. But "[a] pleading that offers 'labels

and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'"

Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555); see also id. at 1951 (pleading that

defendant "knew of, condoned, and willfully and maliciously agreed to subject [plaintiff] to harsh

conditions of confinement as a matter of policy solely on account of his religion, race, and/or

national origin and for no legitimate penological interest" fails to state a claim for invidious

discrimination); Twombly, 550 U.S. at 551 (alleging a "contract, combination or conspiracy to

prevent competitive entry" fails to state a claim for conspiracy). Ms. Smith's allegations

regarding the District's knowledge therefore "are conclusory and not entitled to be assumed true."

Id.

       Because the "conclusory nature of [Ms. Smith's knowledge ] allegations . . . disentitles

them to the presumption of truth," id., the Court must determine whether any factual allegations

plausibly suggest that Ms. Smith is entitled to relief. But Ms. Smith's complaint, and indeed the

entire record, is devoid of any facts or allegations that the District of Columbia knew or should

have known about Gilbert Smith's supposed mistreatment. Nowhere does she allege that, for

example, Gilbert Smith forwarded complaints or grievances about his treatment to the District of

Columbia. See Moonblatt v. Dist. of Columbia, 572 F. Supp. 2d 15, 21 (D.D.C. 2008) (repeated

written complaints regarding treatment forwarded to the District sufficient to place District on


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actual or constructive notice). Although she alleges that "[o]n almost a daily basis, the deceased

made requests for medical care, treatment, and attention," Compl. ¶ 12, the Court cannot

reasonably infer that these requests were made to or forwarded to the District. The District

neither operated, nor provided medical care at, the Correctional Treatment Facility. See Compl.

¶ 1 (alleging that the Corrections Corporation of America operated the Correctional Treatment

Facility, and in conjunction with Unity Healthcare, Inc., provided medical treatment there); see

also Hinton v. Corrections Corp. of Am., 624 F. Supp. 2d 45, 46-47 (D.D.C. 2009); Moonblatt,

572 F. Supp. 2d at 23-24. Therefore, even if this allegation is true, it does not plausibly suggest

that the District knew or should have known about Gilbert Smith's medical treatment, but failed

to act.

          Nor does Ms. Smith allege that anyone else forwarded grievances to the District on behalf

of Gilbert Smith. To be sure, Maria Smith asserts in an affidavit that while Gilbert Smith was

incarcerated she "took it upon [herself] to write to the head of the medical unit at the Correctional

Treatment Facility in an effort to obtain better wound care for Gilbert Smith." Pl.'s Opp'n, Aff.

of Maria Smith, at 1. But even assuming the Court could consider Maria Smith's affidavit on a

motion to dismiss,1 her statement demonstrates only that the head of the medical unit at the

Correctional Treatment Facility was on notice of Gilbert Smith's treatment. As discussed above,

the District neither operated, nor provided medical care at, the Correctional Treatment Facility.


          1
          Maria Smith's affidavit was attached to Angela Smith's opposition to the District's
motion to dismiss. On a motion to dismiss, however, the Court generally may consider only "the
facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the
complaint, or documents upon which the plaintiff's complaint necessarily relies even if the
document is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss." Hinton, 624 F. Supp. 2d at 46 (citations and quotations omitted). Maria Smith's
affidavit is thus not properly before the Court on the motion to dismiss.

                                                 -7-
See Compl. ¶ 1. And there are no allegations that any complaint was subsequently forwarded to

the District of Columbia. In short, there simply are no facts alleged that could plausibly give rise

to an inference that the District was on notice of Gilbert Smith's treatment.

        Ms. Smith's allegations supporting her claim of custom or policy based on deliberate

indifference, then, "amount to nothing more than a 'formulaic recitation of the elements' of " the

claim for liability. Iqbal, 129 S. Ct. at 1951 (quoting Twombly, 550 U.S. at 555). And therefore

they "are 'merely consistent with' defendant's liability, [but] . . . 'stop[] short of the line between

possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly,

550 U.S. at 557).2 Accordingly, Count I -- Ms. Smith's section 1983 claim for violation of the

Eighth Amendment -- must be dismissed.3

        II.     State Law Claims

        The District contends that the state law claims asserted in Counts II, III, and IV should be

dismissed because Ms. Smith "failed to comply with the statutory notice requirements of D.C.



        2
           To be sure, the D.C. Circuit previously held that a plaintiff need only plead that a
municipality "'knew or should have known' about the ongoing constitutional violations" to
sustain a claim for Monell liability predicated on deliberate indifference. Warren, 353 F.3d at 39
("It is of no moment that Warren's allegation of actual or constructive knowledge on the part of
the District was conclusory."). But Warren preceded Iqbal, and must now be interpreted in light
of that subsequent Supreme Court decision. Under Iqbal, such conclusory pleadings are no
longer sufficient to state a claim on which relief may be granted. See United States v. Torres,
115 F.3d 1033, 1036 (D.C. Cir. 1997) ("But just as we leave to the Supreme Court the
prerogative of overruling its decisions, district judges . . . are obligated to follow controlling
circuit precedent until either [the circuit court], sitting en banc, or the Supreme Court, overrule
it." (citation and quotation omitted)). This Court concludes that, notwithstanding Warren, the
sufficiency of Ms. Smith's allegations here must be assessed under the standard set by the
Supreme Court in Twombly and Iqbal.
        3
         The Court therefore need not reach the question whether Ms. Smith alleges a sufficient
claim of deliberate indifference under the Eighth Amendment.

                                                   -8-
Code § 12-309." Def.'s Mot. at 13. Ms. Smith agrees. See Pl.'s Opp'n at 7. Under D.C. Code §

12-309, "[a]n action may not be maintained against the District of Columbia for unliquidated

damages to person or property unless, within six months after the injury or damage was

sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the

District of Columbia of the approximate time, place, cause, and circumstances of the injury or

damage." Gilbert Smith was incarcerated at the Correctional Treatment Facility until

approximately May 17, 2007. He died on January 19, 2008. Ms. Smith, however, did not serve

the notice required by section 12-309 until January 5, 2009, considerably more than six months

after both the termination of his incarceration and his passing. See Compl. ¶ 5. Therefore, the

state law claims -- Counts II, III, and IV -- must be dismissed as well.

                                         CONCLUSION

       For the foregoing reasons, the Court will grant the District of Columbia's motion to

dismiss. A separate Order accompanies this Memorandum Opinion.



                                                               /s/
                                                      JOHN D. BATES
                                                  United States District Judge

Dated: December 16, 2009




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