                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                                  )
RONNIE NELSON,                                    )
                                                  )
        Plaintiff,                                )
                                                  )
                v.                                )           Civil Action No. 12-0715 (BAH)
                                                  )
DISTRICT OF COLUMBIA,                             )
                                                  )
        Defendant.                                )
                                                  )

                                    MEMORANDUM OPINION

        The Plaintiff Ronnie Nelson, proceeding pro se, sues the District of Columbia and the

District of Columbia Jail under 42 U.S.C. § 1983 for alleged violations of the First, Fifth, and

Eighth Amendments to the Constitution.1 Second Amended Complaint (“Am. Compl.”), ECF No.

17. The Plaintiff also asserts a common law claim of negligence. See id. ¶ 18. The complaint

arises out of the Plaintiff’s detention at the D.C. Jail from November 3, 2011, to November 15,

2011.

        The District of Columbia moves to dismiss the amended complaint under Rule 12(b)(6)

of the Federal Rules of Civil Procedure on the grounds that (1) the Plaintiff failed to comply with

the claim notice requirements of D.C. Code § 12-309, with regard to the negligence claim, 2 and

(2) the complaint fails to state constitutional claims and a claim for which the District may be

1
   The complaint against the District of Columbia Jail is dismissed because the D.C. Jail is a
component of the District of Columbia government and not itself subject to suit. See Kundrat v.
District of Columbia, 106 F. Supp. 2d 1, 5 (D.D.C. 2000); Hinton v. Metro. Police Dep't, Fifth Dist.,
726 F. Supp. 875, 875 (D.D.C. 1989).

2
  See Gabriel v. CCA, 211 F. Supp. 2d 132, 139 (D.D.C. 2002) (“Notice of claim statutes are not
applicable to § 1983 claims.”) (citing Felder v. Casey, 487 U.S. 131, 140-41 (1988)).
                                                  1
held liable under § 1983. Def.’s Mot. to Dismiss Am. Compl., ECF No. 18. Upon consideration of

the Second Amended Complaint, the Defendant’s motion papers, and the Plaintiff’s opposition

papers, the Court finds that the complaint fails to state a municipal liability claim and,

therefore, will grant the Defendant’s motion to dismiss the § 1983 claim. Pursuant to 28 U.S.C.

§ 1367, the Court will decline to exercise supplemental jurisdiction over the negligence claim

and, thus, will dismiss the case.

                                           BACKGROUND

       The Plaintiff alleges that he was arrested in the District of Columbia in July 2011 and was

“transported to D.C. Jail as a detainee pended [sic] court proceedings.” Am. Compl. ¶ 6. On

November 3, 2011, the Plaintiff injured his lower back and right hand when the double bunk

bed he attempted to climb separated from the wall and collapsed. Id. ¶ 9. The Plaintiff was

treated in the Jail’s infirmary from November 3 to November 10, 2011, and each time was

returned to his “Unit.” Id. ¶¶ 10-11.

       After falling twice on November 10, the Plaintiff, at a nurse’s insistence, was placed in a

“Safe Cell” located in the infirmary that allegedly reeked of urine and spoiled food. Id. ¶¶ 12-

14. The Plaintiff alleges that he was held in the Safe Cell for five days “and only given one

shower despite numerous requests.” Id. ¶ 15. The Plaintiff also alleges that while in the Safe

Cell, he was refused “a phone call and envelopes to contact [his] lawyer and family,” and was

refused a clean cell because the “duty officer . . . told [] Plaintiff [that he] would not be in that

cell long.” Id. The Plaintiff alleges that when his property was returned to him “two or three

days later,” items were missing. When he complained about the missing items, the duty officer




                                                   2
told him “that it will be logged in the log book.” Id. ¶ 16. On the morning of November 15,

2011, the Plaintiff was transferred to “C.C.A. Medical Unit for treatment.” Id. ¶ 17.

        The Plaintiff filed this action on May 3, 2012, from the Federal Correctional Institution in

Butner, North Carolina. He claims that the District breached its duty of “reasonable care and

safekeeping owed to Plaintiff,” id. ¶ 18, “knowingly, intentionally . . . ex-communicated” him

from his family and attorney, in violation of the First Amendment, id. ¶ 20, and placed him “in a

filthy, urine infested cell with reckless disregard for his health and safety . . . .” and maintained

a “defective bunk bed,” in violation of the Eighth Amendment. Id. ¶¶ 19, 22. The Plaintiff

seeks a total of $360,000 in damages. Id. at 4.

                                          LEGAL STANDARD

        To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted, a plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[] [his] claims across the line from conceivable to

plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[A] complaint [does not]

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ “ Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint

must plead facts that are more than “ ‘merely consistent with’ a defendant's liability,” id.

(quoting Twombly, 550 U.S. at 557), and “that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.; accord Rudder v.

Williams, 666 F.3d 790, 794 (D.C. Cir. 2012).

        In considering a motion to dismiss, the Court “must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all


                                                   3
reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v.

Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal quotation marks omitted).

However, the court need not accept as true “a legal conclusion couched as a factual allegation,”

Iqbal, 556 U.S at 678 (internal quotation marks omitted), and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice” to

overcome a motion to dismiss. Id.

                                           DISCUSSION

       Under 42 U.S.C. § 1983, it is unlawful for a person acting under color of law to deprive

any other person of any federal constitutional or statutory right. The Supreme Court has held

that the term “person” in § 1983 includes municipalities and other local government units, such

as the District of Columbia. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). A

municipality, however, “cannot be held liable solely because it employs a tortfeasor -- or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior

theory.” Id. at 691; see also Connick v. Thompson, --- U.S. ---, 131 S. Ct. 1350, 1359 (2011)

(“under § 1983, local governments are responsible only for "their own illegal acts…. They are

not vicariously liable under § 1983 for their employees' actions."); accord Jones v. Horne, 634

F.3d 588, 600 (D.C. Cir. 2011).

       In order to plead a § 1983 claim against a municipality, a plaintiff must not only allege a

predicate violation of some right, privilege, or immunity secured by the Constitution and laws

of the United States, see 42 U.S.C. § 1983, but must also allege “that the municipality's custom

or policy caused the violation,” Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004)

(citing Collins v. City of Harker Heights, 503 U.S. 115, 123–24 (1992)), as evidenced by an official


                                                 4
policy or “practices so persistent and widespread as to practically have the force of law.”

Connick, 131 S.Ct. at 1359; see Jones, 634 F.3d at 600-01 (“Causation can be shown in several

ways,” including the adoption of an unconstitutional policy by “the municipality or one of its

policymakers[,]” a policymaker’s knowing disregard of “a practice that was consistent enough

to constitute custom,” or the municipality’s deliberate indifference, i.e., its failure to act on a

known risk of a constitutional violation.) (citations, internal quotation marks, and internal

alterations omitted). “Where a plaintiff fails to allege the existence of any policy or custom that

could have arguably violated his rights, dismissal is proper.” Gabriel v. CCA, 211 F. Supp. 2d

132, 139 (D.D.C. 2002) (citing Polk County v. Dodson, 454 U.S. 312, 326-27 (1981)). If a

predicate constitutional violation is not adequately pled, however, the Court “do[es]not reach

the second part of the inquiry, applying the standards for a claim of municipal liability.”

Hannon v. Transcor, 161 Fed. Appx. 20 (D.C. Cir. 2005) (per curiam).

       A. The First Amendment Claim

       The Plaintiff claims that he was “ex-communicated” from his family and attorney, Am.

Compl. ¶ 20, while in the Safe Cell because he was denied “a phone call and envelopes . . . .” Id.

¶ 15. He adds in his opposition that the First Amendment “guarantees Freedom of speech,

mail, and telephone use,” and that his requests to speak with his lawyer about “a sentencing

hearing coming up in a couple of days” and with his family “about medical condition and injury”

were “either denied or ignored.” Pl.’s Opp’n Mot. to Def.’s Mot. to Dismiss Am. Compl. (“Pl.’s

Opp’n”) at 5 ¶ 2, ECF No. 20. 3


3
   A court must construe pro se filings liberally and, absent any indication of prejudice to the
defendant, should read all of the plaintiff’s filings together. Richardson v. U.S., 193 F.3d 545,
548 (D.C. Cir. 1999). Where necessary to present a complete picture of the Plaintiff’s claims,
                                                  5
        The fact that the Plaintiff was denied one telephone call and stationery for the brief

time that he was in the Safe Cell fails to implicate the First Amendment’s right of free speech or

right to redress grievances. See Ali v. District of Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002) (“To

maintain a court access claim, an inmate must demonstrate actual injury, that is, the inmate

must show “that an actionable claim . . . which he desired to bring has been lost or rejected, or

that the presentation of such a claim is currently being prevented . . . .”) (citation and internal

quotation marks omitted) (ellipses in original); accord Akers v. Watts, 740 F. Supp. 2d 83, 96

(D.D.C. 2010) (An inmate stating a First Amendment right of access to the courts must “allege

that he suffered actual prejudice or injury” as a result of the government’s deprivation.)

(citations omitted); Delaney v. District of Columbia, 659 F. Supp. 2d 185, 196 (D.D.C. 2009) (“A

claim for denial of access may be brought where (1) systemic official action frustrates a plaintiff

in preparing and filing suits, such as denial of access to a law library or (2) official action

precludes a claim resulting in the loss or inadequate settlement of a meritorious case or the loss

of the opportunity to bring suit.”) (citing Christopher v. Harbury, 536 U.S. 403, 412-14 (2002));

see also Hall v. Lanier, 766 F. Supp. 2d 48, 53 (D.D.C. 2011) (finding free speech claim stated

the Court has considered together the facts asserted in the Second Amended Complaint and
the Plaintiff’s opposition. However, the Court has not treated the Plaintiff’s opposition as
amending the complaint to add the common law claim of Intentional Infliction of Emotional
Distress (“IIED”) that he raises for the first time in the opposition. Pl.’s Opp’n at 7 ¶ 6. Since
the Plaintiff did not seek to amend the complaint to add this claim, the Court agrees with the
Defendant that the IIED claim should be disregarded. Reply in Supp. of Def.’s Mot. to Dismiss
Am. Compl., ECF No. 21, at 1. See Jefferies v. D.C., No. 11-1159, 2013 U.S. Dist. LEXIS 1770
(D.D.C. Jan. 7, 2013)(“Factual allegations in briefs or memoranda of law may not be considered
when deciding a Rule 12(b)(6) motion.”); Davis v. District of Columbia, 800 F. Supp. 2d 28, 30
n.2 (D.D.C. 2011)(same); Harris v. District of Columbia, 696 F. Supp. 2d 123, 136 (D.D.C.
2010)(same). On the other hand, the Court disagrees with the Defendant’s contention that the
Plaintiff did not present a negligence claim, Def.’s Reply at 1, and it finds this position
somewhat puzzling in light of the asserted defense based on the notice requirements of D.C.
Code § 12-309, which could only apply to the common law claim. See supra n.1.
                                                   6
where MPD officers allegedly “chilled” or suppressed plaintiff’s speech by threat of arrest). The

Plaintiff’s claim against the District predicated on the First Amendment therefore will be

dismissed.

       B. The Fifth and Eighth Amendment Claims

       Since the Plaintiff alleges that he was at the D.C. Jail as a pretrial detainee, Am. Compl. ¶

6, the Eighth Amendment does not apply to his claim based on his conditions of confinement.

This is because the Eighth Amendment protects convicted prisoners from “cruel and unusual

punishment.” U.S. Const. amend. VIII; City of Revere v. Mass. General Hosp. 463 U.S. 239, 243-

244 (1983) (“Eighth Amendment scrutiny is appropriate only after the State has complied with

the constitutional guarantees traditionally associated with criminal prosecutions . . . . [T]he

State does not acquire the power to punish with which the Eighth Amendment is concerned

until after it has secured a formal adjudication of guilt in accordance with due process of law.”)

(citation and internal quotation marks omitted) (alterations in original); accord Powers-Bunce v.

District of Columbia, 479 F. Supp. 2d 146, 152-53 (D.D.C. 2007) (observing “well-settled law

[that] the [Eighth] Amendment's prohibition applies only to persons who are subject to

‘punishment’ by the government”). Rather, the Plaintiff’s claim is properly brought under the

Fifth Amendment’s due process clause but analyzed in substantially the same manner as an

Eighth Amendment claim. See Powers-Bunce, 479 F. Supp. 2d at 153 (“Courts have consistently

held that this right belonging to pretrial detainees is ‘at least as great as’ the analogous Eighth

Amendment right and, therefore, generally treat the two claims as analytically identical.”)

(quoting Barber v. City of Salem, 953 F.2d 232, 235 (6th Cir. 1992)). Hence, the Court will grant




                                                 7
the Defendant’s motion to dismiss the Eighth Amendment claim and will consider whether the

underlying facts state a claim under the Fifth Amendment’s due process clause.

        In Bell v. Wolfish, the Supreme Court instructed that “[i]n evaluating the

constitutionality of conditions or restrictions of pretrial detention that implicate only the

protection against deprivation of liberty without due process of law, . . . the proper inquiry is

whether those conditions amount to punishment of the detainee.” 441 U.S. 520, 535-36

(1979). A condition may amount to punishment if it “is not reasonably related to a legitimate

[institutional] goal - if it is arbitrary or purposeless . . . .” Id. at 539. But “[n]ot every disability

imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense . . . . And

the fact that such detention interferes with the detainee’s understandable desire to live as

comfortably as possible . . . during confinement does not convert the conditions . . . of

detention into ‘punishment’ ” Id. at 537; accord Jones, 634 F.3d at 597-98. The Fifth

Amendment is implicated upon “a showing of an expressed intent to punish on the part of

detention facility officials” or when the challenged detention is not “reasonably related to a

legitimate governmental objective.” Bell, 441 U.S. at 538-39.

        The Plaintiff alleges that for five days in the Safe Cell, he was exposed to “dried urine on

the toilet seat and floor . . . Styrofoam trays with food in them and open milk cartons with

[spoiled] milk in them,” and was allowed one shower “despite [his] plea[s] for more showers.”

Pl.’s Opp’n at 6 ¶ 3. The Plaintiff’s allegations in the complaint establish that his placement in

the infirmary’s Safe Cell was not “motivated by the desire to punish [him],” Jones, 634 F.3d at

598, but rather by the nurse’s desire to attend to the Plaintiff’s ailments after his “legs or back

gave out” twice on November 10, 2011. Am. Compl.¶¶ 12-13. In addition, the duty officer is


                                                     8
alleged to have refused the Plaintiff’s request to have the cell cleaned for the non-punitive

reason that “Plaintiff would not be in that cell long.” Am. Compl. ¶ 15. Hence, the Court finds

that the challenged conditions do not rise to the level of a Fifth Amendment violation. Even if

they did, the Court finds for the reasons stated next that the Plaintiff has not pleaded a § 1983

claim against the District.

       The Plaintiff alleges that “the District did not exercise appropriate oversight over D.C.

Jail policies and training of guards,” Am. Compl. ¶ 24, and that [i]t has become ‘custom’ for

D.C. Jail officials to not check or inspect cells before inmates are placed in them, [which] poses a

dangerous situation because inmates can use defective or broken materials in cells as

weapons.” Pl.’s Opp’n at 5 ¶ 1. Not only is this alleged custom too nebulous to support a claim

against the District but the alleged result of the custom is wholly disconnected to “the injuries

of which [the Plaintiff] complained.” Gabriel, 211 F. Supp. 2d at 140. Furthermore, the

complaint does not allege that a policymaker was aware of the conditions in the Safe Cell and

failed to act and, thus, “stops short of the line between possibility and plausibility of

entitlement to relief” from the District. Jones, 634 F.3d at 601-02 (quoting Iqbal, 556 U.S. at

678). Hence, the Court will dismiss the municipal liability claim. See Gabriel, 211 F.Supp. 2d at

140 (““[C]onclusory allegations by a plaintiff about the existence of a policy or custom will not

satisfy the plaintiff's requirement to allege a prima facie case under § 1983.”) (citations

omitted).




                                                  9
                                             CONCLUSION

       For the foregoing reasons, the Court will grant the Defendants’ motion to dismiss the

Plaintiff’s claims brought under 42 U.S.C. § 1983 and will dismiss the case. The Court declines

to exercise supplemental jurisdiction over the negligence claim, which presumably the Plaintiff

may pursue in the District of Columbia courts. A separate Order accompanies this

Memorandum Opinion.

                                                     /s/ Beryl A. Howell
                                                    UNITED STATES DISTRICT JUDGE
DATE: March 8, 2013




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