                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


     MICHAEL D. HURD, JR.,

                          Plaintiff,

                  v.                                   Civil Action No. 15-0666 (ESH)

     DISTRICT OF COLUMBIA,

                          Defendant.



                                  MEMORANDUM OPINION

        Plaintiff Michael D. Hurd, Jr. brings this action against the District of Columbia for

damages under 42 U.S.C. § 1983 for “wrongful deprivation of liberty.” (Am. Compl. at 9 [ECF

7].) Before the Court are Hurd’s and the District’s cross-motions for summary judgment. For

the reasons stated herein, the District’s motion for summary judgment will be granted, and

Hurd’s will be denied.

                                         BACKGROUND

I.      FACTUAL BACKGROUND1

        Plaintiff Michael Hurd was stopped by the Metropolitan Police Department in August

2005 (id. ¶ 9), and charged with five crimes to which he pled guilty in January 2006: “one count

of carrying a pistol without a license[,] . . . one count of possession of a prohibited weapon, two

counts of possession of unregistered firearms and one count of possession of a quantity of

cocaine.” (Id. ¶¶ 10–11.) He was sentenced to 42 months in prison and three years of supervised



        1
          The facts relating to this case were set out in greater detail by this Court in Hurd v.
District of Columbia, 146 F. Supp. 3d 57 (D.D.C. 2015), and in the reversal by the Court of
Appeals in Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017).
release with the execution of all but 45 days suspended, as well as a $1,000 fine and one year of

probation. (Id. ¶ 11.) The sentence consisted of 15 months of imprisonment and three years of

supervised release for the felony gun charge, and several consecutive, shorter sentences adding

up to an additional 27 months of imprisonment for the four misdemeanor charges. (See 2006

Superior Court Judgment [ECF 38-3].) Several months later Hurd violated the terms of his

probation by testing positive for both cocaine and marijuana, and at a show cause hearing in

September 2006, his parole was revoked. (See Pl.’s Resp. to D.C.’s Statement of Material Facts

(“Pl.’s Resp.”) at 1–2 [ECF 40].) He was ordered to serve his 42-month prison sentence, to be

followed by three years of supervised release. (See Am. Compl. ¶ 12.)

       On June 11, 2007—i.e., less than a year after his parole was revoked and he was sent to

serve his full sentence—Hurd was released from the federal facility at which he was being held

in West Virginia and sent to Hope Village, a halfway house in the District. (See id. ¶ 15.) He

was released from the halfway house in July 2007, and thereafter began his three-year term of

supervised release. (See id. ¶ 17.) Hurd thus served only the felony part of his sentence. He

should have served the remaining misdemeanor time at the jail that is run by the D.C.

Department of Corrections (“DOC”), but instead BOP discharged him “under circumstances that

he reasonably believed reflected a deliberate sentence reduction.” Hurd, 864 F.3d at 674.

“During this time, he had regular contact with the District of Columbia Court Services &

Offender Supervision Agency officers who were monitoring his supervised release, and was

never found to have violated the terms of his supervised release.” (Am. Compl. ¶ 20.) Although

he tested positive for marijuana and cocaine “on more than 50 separate occasions” throughout his

term of supervised release, the Parole Commission never revoked his supervised release. (Pl.’s

Resp. at 5–6.)


                                                2
       Hurd appeared in D.C. Superior Court several times during this period. (See id. at 4–5.)

He was charged with simple assault in 2007, but found not guilty following a trial in 2008. (See

id. at 4.) He was charged “with possession with intent to distribute cocaine while armed,

possession of drug paraphernalia, possession of an unregistered firearm and possession of

unregistered ammunition” in late 2008, but this case was dismissed, and all charges were

dropped. (Id.) Hurd was again charged with simple assault in 2009, but the charge was

dismissed; another assault charge in 2010 was not papered. (See id. at 5.)

       In September 2011, Hurd pled guilty to possession of marijuana. (See Am. Compl. ¶ 25.)

Because he had been participating in a sheet metal apprenticeship since his release from federal

prison and was working towards his journeyman certification with the union (see Def.’s Resp. to

Pl.’s Statement of Material Facts (“Def.’s Resp.”) at 7–8 [ECF 43-1]), he was permitted to serve

his 9-day sentence over three consecutive weekends. (See Am. Compl. ¶ 25.) Hurd surrendered

to the DOC for his first weekend of incarceration on September 23, 2011, and was released on

September 25. (See id. ¶ 26.) He surrendered to serve his second weekend on September 30;

however, at the end of the weekend, on October 2, DOC did not release him as expected. (See

id. ¶¶ 27–28.)

       The DOC Records Office employs Legal Instruments Examiners (“LIEs”) who, at the

time of any inmate’s potential discharge, “conduct the review of an inmate’s file to look for other

pending charges and other matters to determine whether he is eligible for release and also run[] a

check for any outstanding warrants, detainers or other holds.” (Def.’s Resp. at 10.) Mark Sibert

was the LIE in charge of plaintiff’s case, and the one who denied his release. (See Pl.’s Resp. at

9.) According to Sibert, he denied Hurd’s release in reliance on Hurd’s 2006 judgment and

commitment, which showed that he had 27 months left to serve on his sentence. (See Sibert Dep.

                                                 3
at 65–66 [ECF 39-8].) Hurd filed a complaint with the DOC Records Office after he was not

released on October 2; on October 26, 2011, he received a response asserting that he was being

held because he “was erroneously released from the Bureau of Prisons on July 18, 2007.” (Pl.’s

Resp. at 7.)

       Hurd filed a habeas petition on November 16, 2011, under his original case number in

Superior Court. (See Am. Compl. ¶ 31.) Inexplicably, he did not receive a hearing until July 27,

2012, at which time Judge Holeman—who sentenced Hurd in 2006 to the original 42 months of

imprisonment—orally denied the habeas petition. (See id. ¶¶ 34–35.) Judge Holeman concluded

that Hurd had not stated a due process claim, because “a convicted person will not be excused

from serving his sentence [merely] because someone in a ministerial capacity makes a mistake

with respect to the execution of the sentence” (Habeas Hearing Transcript at 67 [ECF 38-12]),

and Hurd’s case was materially different from other cases in which relief had been granted. (See

id. at 69 (“Now, to the extent that when we hold up United States v. Merritt to be factually

similar to this case, it is, in fact, factually distinguishable from this case.”).) Although Hurd

appealed that denial, the D.C. Court of Appeals did not rule on the appeal prior to his release

from DOC custody on September 30, 2013; following his release, the D.C. Court of Appeals

dismissed Hurd’s appeal as moot. (See Am. Compl. ¶¶ 36–39.)

II.    PROCEDURAL HISTORY

       Hurd filed his complaint with this Court on May 1, 2015, and amended the complaint on

July 10, 2015. (See Compl. [ECF 1]; see also Am. Compl.) His complaint consists of a single

claim under 42 U.S.C. § 1983 for violation of his substantive and procedural due process rights,

based on the District’s choice to “suddenly and unjustly re-incarcerate[] him without a hearing,

four years after he was mistakenly released from a federal prison.” Hurd, 146 F. Supp. 3d at 59.

                                                  4
The District moved to dismiss the amended complaint on July 27, 2015, and on November 19,

2015, this Court granted that motion. See id. at 72 (“[T]he Court concludes that plaintiff cannot,

as a matter of law, state a constitutional claim for damages based on a violation of his due

process rights, and therefore, the District’s motion to dismiss will be [granted].”).

       Plaintiff appealed, and on July 28, 2017, the Court of Appeals for the District of

Columbia Circuit vacated this Court’s dismissal and remanded for further proceedings. See

Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017). The Circuit concluded that Hurd’s

substantive due process claim was not precluded by the earlier habeas proceedings before Judge

Holeman, see id. at 679–82, and that Hurd’s amended complaint stated a claim for procedural

due process because, under the particular facts of his case, he alleged “a liberty interest

crystallized sufficiently by the close of the period of supervision to entitle him to some kind of

process before re-incarceration.” Id. at 683. The Court also revived Hurd’s substantive due

process claim based on its determination that this Court had considered materials outside the

amended complaint. See id. at 686–87. On remand, the panel counseled this Court to consider

whether County of Sacramento v. Lewis, 523 U.S. 833 (1998), and its “shock the conscience” test

should be employed along with, or instead of, the multi-factor test used in United States v.

Merritt, 478 F. Supp. 804 (D.D.C. 1979), to determine whether the re-incarceration violated

Hurd’s substantive due process rights.

       On remand, after attempting without success to negotiate a settlement, the parties began

fact discovery, which was completed in early 2019. The District filed for summary judgment on

April 5, 2019, and Hurd filed a cross-motion for summary judgment on April 26. Argument was

held on the motions on November 18, 2019. (See November 18, 2019 Minute Entry.)




                                                  5
                                                ANALYSIS

       The first issue is whether the District can be held liable under § 1983. This was not

previously addressed by this Court or by the Circuit. This Court concludes that the District

cannot be held liable under § 1983, and therefore it does not reach the issue of whether there was

a procedural or substantive due process violation under the Fifth Amendment. 2

I.     LEGAL STANDARDS

       A.      Summary Judgment

       Summary judgment should be granted to the movant if it has shown that there are no

genuine issues of material fact and that the movant is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(a); see generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The mere

existence of some factual dispute will not preclude the entry of summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “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.

       B.      Municipal liability under 42 U.S.C. § 1983

       Hurd’s sole claim is against the District of Columbia under 42 U.S.C. § 1983. (See Am.

Compl. ¶ 1.) This section provides that:

               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, except that in
       any action brought against a judicial officer for an act or omission taken in such
       officer’s judicial capacity, injunctive relief shall not be granted unless a

       2
          “Because D.C. is a political entity created by the federal government, it is subject to the
restrictions of the Fifth Amendment, not the Fourteenth.” Propert v. District of Columbia, 948
F.2d 1327, 1330 n.5 (D.C. Cir. 1991) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).
                                                  6
       declaratory decree was violated or declaratory relief was unavailable. For the
       purposes of this section, any Act of Congress applicable exclusively to the
       District of Columbia shall be considered to be a statute of the District of
       Columbia.
42 U.S.C. § 1983. In Monell v. Department of Social Services of the City of New York, 436 U.S.

658 (1978), the Supreme Court held that “municipalities and other local government units” were

included within the meaning of “persons” who could be sued for monetary damages for

deprivation of an individual’s constitutional rights. Id. at 690.

       However, “a municipality cannot be held liable under § 1983 on a respondeat superior

theory.” Id. at 691. In other words, “a municipality cannot be held liable solely because it

employs a tortfeasor.” Id. (emphasis in original). Instead, a local government can be held liable

“only for the results of unconstitutional governmental ‘policies.’” City of St. Louis v. Praprotnik,

485 U.S. 112, 122 (1988). “There are a number of ways in which a ‘policy’ can be set by a

municipality to cause it to be liable under § 1983: [1] the explicit setting of a policy by the

government that violates the Constitution; [2] the action of a policy maker within the

government; [3] the adoption through a knowing failure to act by a policy maker of actions by

his subordinates that are so consistent that they have become ‘custom’; or [4] the failure of the

government to respond to a need (for example, training of employees) in such a manner as to

show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional

violations.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (internal

citations omitted). “Official municipal policy includes the decisions of a government’s

lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Once such a

policy has been established, the plaintiff must next demonstrate that the municipality was the

“moving force” behind her injury—in other words, “a plaintiff must show that the municipal


                                                  7
action was taken with the requisite degree of culpability and must demonstrate a direct causal

link between the municipal action and the deprivation of federal rights.” Bd. of Cty. Comm’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997) (internal quotation marks omitted).

       A court must “separate two different issues when a § 1983 claim is asserted against a

municipality: (1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so,

whether the city is responsible for that violation.” Collins v. City of Harker Heights, 503 U.S.

115, 120 (1992). In numerous cases, the Supreme Court has “assumed that a constitutional

violation had been adequately alleged or proved and focused its attention on the separate issue of

municipal liability.” Id. at 121. This follows from “the separate character” of inquiries into

questions of constitutional violation and municipal responsibility for that violation. Id. at 122;

see also Doe v. District of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015) (remanding a § 1983

claim based on “a serious constitutional question” because the district court had not yet

determined whether any such violation was “pursuant to a custom or policy of the District”).

The Court of Appeals for the District of Columbia has instructed that if “the constitutional

question is a difficult one, and there is a question whether the District is liable under § 1983, the

district court should address the question of municipal liability in the first instance.” Doe, 796

F.3d at 106.

II.    HURD’S § 1983 CLAIMS

       Hurd argues that pursuant to 42 U.S.C. § 1983 the District should be liable for damages

for the approximately two years he was incarcerated by the DOC between October 2011 and

September 2013. He contends that his prior sentence had expired long before the DOC decided

to hold him in October 2011, either because his sentence continued to run while he was at liberty

(if he had been held continuously, his 42-month sentence would have been completed in full in



                                                  8
March 2010) or because his three years of supervised release had been completed. (See Pl.’s

Opp. at 10 [ECF 39].)3 As explained by Hurd’s attorney at the hearing, the passage of either

milestone should mark the beginning of a bright-line rule at which point it is no longer

constitutional to detain a prisoner with an ostensibly unfinished sentence. (See, e.g., Transcript

of November 18, 2019 Motion Hearing (“Tr.”) at 5:16-18 (“The case law is relatively uniform on

this, that until such time as his sentence is fully expired, the government can then recommit

him.”); id. at 6:18-21 (describing a “bright line test of some sort which says it is unconstitutional

if time on the street [as] added to the time served exceeds the amount of prison that he would

otherwise serve”); see also id. at 19:17-22 (“[T]he thing about Hawkins [v. Freeman, 195 F.3d

732 (4th Cir. 1999)], it involved a prisoner who had like 10 years to go on his sentence . . . at the

time that he was taken back into custody. That’s completely different than what happened here

because the time had long passed. The time for incarceration had long passed when Mr. Hurd

was rearrested.”).) Hurd further argues that his procedural due process rights were violated

because any sort of pre-incarceration process would have revealed that he had passed these

bright lines and thus was not subject to detention by the DOC. (See Pl.’s Opp. at 10 (“If Mr.

Hurd had been given a hearing, it would have quickly been determined that his prior sentence

had expired . . . .”).)




        3
          In his opposition to the District’s motion for summary judgment, Hurd described his
bright-line rule as such: “Mr. Hurd had a protectable liberty interest because (1) he was not a
mistakenly-released prisoner and his prior sentence had been served in full or (2) if he was a
mistakenly-released prisoner, his sentence continued to run, and the government could not
recommit him after the time period of his original confinement expired.” (Pl.’s Opp. at 10.)
According to Hurd, either (1) completion of supervised release, or (2) the addition of street time
to time served exceeding the total time of imprisonment that was imposed terminates the
government’s ability to re-incarcerate. (See id.)
                                                  9
       Hurd’s primary contention is that the District’s liability for these constitutional violations

is premised on its “long standing custom and practice of detaining prisoners for longer than their

actual sentences, and . . . long-standing culture of deliberate indifference to the constitutional

rights of prisoners under its control.” (Am. Compl. ¶ 40.) He also claims the District “failed to

adopt procedures and failed to train its employees regarding practices and procedures required

when prisoners have served portions of their sentences elsewhere, and has failed to train its

employees of the significance and effect of the division of authority between the District and the

federal government.” (Id. ¶ 50.) According to Hurd, his situation “was not an individual

experience as asserted by the District” (Pl.’s Opp. at 25); to the contrary, Hurd argues the District

has a “history of indifference” to court-ordered releases and the need to avoid overdetaining

prisoners. (Pl.’s Reply at 23 [ECF 46].)

       These arguments conflate the third and fourth prongs of municipal policy liability

described in Baker—they invoke both the consistent adoption of subordinates’ acts known as

“custom,” as well as policymakers’ failure to act in the face of a known need, i.e., “deliberate

indifference.” See Baker, 326 F.3d at 1306. The conflation of these two prongs is

understandable, as they both focus on essentially the same three questions: (1) has there been a

persistent pattern of similar constitutional violations; (2) was the District on notice of this pattern

of violations; and (3) did the District nevertheless fail to act, thus displaying deliberate

indifference to the possibility of further similar violations. While this has also been formulated

as a two-step test—did the District have notice of constitutional violations and make a deliberate

choice not to solve the problem (see Def.’s Mot. at 11–12 [ECF 38] (citing Connick, 563 U.S. at

61))—this two-step test is substantively no different since it combines similar constitutional

violations and notice into one step. See Connick, 563 U.S. at 62 (requiring “[a] pattern of similar



                                                  10
constitutional violations”); see also Egudu v. District of Columbia, 72 F. Supp. 3d 34, 41

(D.D.C. 2014) (requiring evidence that “the municipality’s employees engaged in a persistent or

regular pattern of conduct that gave rise to the alleged constitutional violations” (emphasis

added)); Olaniyi v. District of Columbia, 876 F. Supp. 2d 39, 49 (D.D.C. 2012) (concluding that

there could be no notice when the only evidence presented was of a “history of general

problems” with the District’s medical care).

       While Hurd’s briefing focused on Baker’s third- and fourth-prong arguments,4 Hurd’s

attorney suggested at oral argument that the District’s written release policy caused the alleged

constitutional violation. At the time of Hurd’s re-incarceration, the DOC had in effect a

“Program Statement” that addressed releases and that required all LIEs to check a variety of

databases for “outstanding charges preventing release, prior to an inmate’s release from the

custody of the DOC.” (DOC 2008 Program Statement at 9 [ECF 38-19].) Without this policy,

Hurd argues, the LIEs would never have checked his record and hence never discovered that he

had not served the 27 months required on his misdemeanor convictions from 2006. (See Tr. at

34:20-24 (“Because if . . . they had not looked into the old records, Mr. Hurd would have been

let out at 7:00 on Sunday. Their policy of making—looking at all of these things and making

sure that people are entitled to be released, that’s what they do. That’s their practice.”).)

       A.      Existence of an explicit District policy

       Hurd’s argument based on an explicit District policy must be rejected. Generally, in

order for an explicit municipal policy to warrant liability under § 1983, that policy must itself

violate the Constitution—it is not enough that the policy may in some attenuated fashion lead to



       4
         This is with the exception of a passing reference to DOC’s “practice to falsify
documents.” (See Pl.’s Opp. at 24 [ECF 39]). No evidence has been offered to support such a
bald assertion. As a result, the Court will not consider this argument.
                                                  11
actions that result in constitutional violations. See Bryan Cty., 520 U.S. at 404 (concluding that a

municipality could be held liable for explicit policies “[w]here a plaintiff claims that a particular

municipal action itself violates federal law, or directs an employee to do so” (emphasis in

original)). The action taken by the municipality must demonstrate a “degree of culpability.” Id.

Monell, for example, involved an explicit and unconstitutional official policy in New York,

which “compelled pregnant employees to take unpaid leaves of absence before such leaves were

required for medical reasons.” 436 U.S. at 661. An unconstitutional policy was also found in

Barnes, where Judge Lamberth concluded that the DOC’s policy of refusing to release inmates

after 10 p.m. violated their constitutional rights, as it essentially mandated inmate overdetentions

“when there exist[ed] no legal basis whatsoever for the continued deprivation of [inmates’]

liberty.” Barnes v. District of Columbia, 793 F. Supp. 2d 260, 278 (D.D.C. 2011).

       A DOC policy of checking records for outstanding charges prior to release of an inmate

is not itself unconstitutional. On the contrary, DOC’s policy is sensible and reasonably supports

society’s interest in “preventing the release of an inmate when an alternative basis for his

confinement exists.” Id. at 276. In this particular case, DOC’s policy triggered a chain of events

that culminated in Sibert declining to release Hurd when he would have otherwise been sent

home on his weekend sentence despite the absence of a federal detainer, which Hurd alleges was

ultra vires and in violation of his due process rights. However, even accepting his argument that

the policy led to an alleged constitutional violation by Sibert, a single constitution violation by a

low-level District employee is insufficient to make a case of municipal liability. See Bryan Cty.,

520 U.S. at 404 (“The plaintiff must . . . demonstrate that, through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.” (first emphasis in original)).

Indeed, Hurd is unable to cite to any deliberate actions by District policymakers that caused his



                                                 12
injuries. Hurd’s explicit policy argument thus does not meet the “rigorous standards of

culpability and causation” required to ensure a municipality is liable for only its own acts. See

id. at 405.

        B.      “Policy” based on a custom or deliberate indifference

        Hurd claims that as of 2011 the District has a persistent custom of overdetaining

prisoners and failed to train or supervise appropriately its employees who were in charge of the

release process, thereby acting in deliberate indifference to potential violations of inmates’

constitutional rights. As noted above, this argument melds the third and fourth prongs (custom

and deliberate indifference) of Baker’s description of the “number of ways in which a ‘policy’

can be set by a municipality to cause it to be liable under § 1983.” Baker, 326 F.3d at 1306. To

succeed in demonstrating municipal liability based on these prongs, Hurd must show (1) a

pattern of similar constitutional violations; (2) notice; and (3) failure to act or deliberate

indifference by the District. The Court will consider each in turn.

                1.      Custom or pattern of similar constitutional violations

        To support his assertion of a District custom or pattern resulting in similar constitutional

violations, Hurd offers the following evidence: (1) the Bynum and Barnes class actions, as well

as other, more recently filed actions concerning overdetentions at the D.C. Jail; (2) testimony of

former supervisory LIE Mark Sibert, who was in charge of denying Hurd’s release in October

2011 and worked at DOC for more than 15 years, between approximately 1997 and 2013 (see

Sibert Dep. at 11–12); and (3) testimony of former LIE Michelle Waddy, who worked at DOC

for more than 20 years, between 1991 and 2017 (see Waddy Dep. at 7 [ECF 39-13]).

                        a.      Bynum and Barnes class actions

        The District has been the defendant in a series of cases, starting in 2002 with Bynum v.

District of Columbia, which challenged DOC’s release procedures and the ways in which they
                                                  13
may be generating unconstitutional overdetentions and strip searches. See Barnes, 793 F. Supp.

2d at 267. In January 2006, the Bynum class settled “pursuant to a settlement agreement that

contained a number of components that were designed to remedy the overdetention and related

strip search problems at the District’s jails.” Id. However, “instead of a swift change to the

status quo at the DOC, there were years where little if any substantive change was instituted,”

id., leading to the filing of the Barnes class action in 2006, which argued that “the DOC’s

overdetention and strip-search problems remain[ed] widespread post-Bynum.” Id. at 271.

       When Hurd first defended his suit against the District’s motion to dismiss, he argued that

although he was detained during the Barnes class period, his case should not be precluded by the

settlement: “Mr. Hurd’s overdetention did not come about because of the faulty administrative

process of release at issue in Barnes, but from other factors entirely.” (See Resp. to Def.’s Mot.

to Dismiss at 10 [ECF 10].) The Court agreed with this distinction. See Hurd, 146 F. Supp. 3d

at 62 (“[B]ecause plaintiff’s allegations are materially different from those in Barnes, he is not

precluded by the Barnes settlement from pursuing relief here.”). Now, however, Hurd maintains

that the issues causing his detention and those in the Barnes case are dissimilar, yet at the same

time he argues that “the same underlying behavior that lead [sic] to constitutional violations in

Barnes and Bynum [was] again at play in this case.” (See Pl.’s Reply at 21.) The Court

disagrees.

       Hurd vacillates between calling what happened to him an “over-detention” and a “re-

incarceration,” at times suggesting that the difference between the two is purely semantic. (See

Pl.’s Opp. at 23 n.8.) Although it advantages him to refer to his situation as an “over-detention,”

as this allows him to argue a closer alignment between his case and those in Bynum and Barnes,

Judge Lamberth described overdetentions in Barnes as situations in which “the jail has every



                                                 14
reason to believe that the person’s continued detention is unlawful and no reason to believe that

some other basis for the detention” exists. See Barnes, 793 F. Supp. 2d at 276 (emphasis

added). Hurd was not merely kept longer on his weekend sentence for administrative processing

or because of some human error on the part of the DOC; instead, he was held due to an

intentional decision to detain him pursuant to his unfinished 2006 sentence. This Court thus

concluded that his situation is best described as a re-incarceration, not an overdetention. See

Hurd, 146 F. Supp. 3d at 62 (“[T]his is a case of an alleged improper reincarceration, not over-

detention); see also Hurd, 864 F.3d at 684 (repeatedly referring to Hurd’s situation as a “re-

incarceration”.

       Where there is no explicit, unconstitutional municipal policy, the Supreme Court requires

“a pattern of similar violations that would establish that the policy of inaction was the functional

equivalent of a decision by the [municipality] itself to violate the Constitution.” Connick, 563

U.S. at 72 (internal quotation marks and brackets omitted). Furthermore, “a close link between

the alleged pattern of constitutional violations and the alleged injury” is necessary. Olanyi, 876

F. Supp. 2d at 50. For example, in Olanyi, Judge Walton of this Court granted summary

judgment to the District on a § 1983 claim because the plaintiff’s evidence showed only a

“history of general problems with medical care,” rather than the specific, alleged constitutional

injury, i.e., forced medication, at issue in the plaintiff’s case. Id. at 49 (emphasis added); see

Robinson v. Pezzat, 818 F.3d 1, 46–47 (D.C. Cir. 2016) (agreeing with the district court that

“seven years’ worth of police reports of dog shootings were insufficient” to establish a pattern

where it was unclear whether the majority of the shootings were unconstitutional).

       Hurd’s situation—a re-incarceration following an intentional DOC decision to hold him

to finish an earlier, uncompleted sentence—is not like the “garden-variety” over-detentions due



                                                  15
to administrative processing or human error that occurred in Bynum and Barnes. See Hurd, 146

F. Supp. 3d at 62.5 As a result, the Bynum and Barnes cases cannot be used to prove a pattern of

similar constitutional violations.

                       b.      Testimony of Mark Sibert

       Hurd cites the testimony of Mark Sibert, who at the time of Hurd’s re-incarceration in

October 2011 was a lead supervisory LIE. (See Sibert Dep. at 53.) Sibert confirmed that he

wrote “Denied” on Hurd’s release form on October 2, 2011 (see id. at 53–54; see also Release

Authorization Form [ECF 39-9]), and that he did so solely based on the judgment and

commitment from Hurd’s 2006 case, which showed Hurd still had 27 months to serve. (See

Sibert Dep. at 66.) Sibert testified that “it’s a rare case but, you know, some inmate can serve his

time elsewhere on misdemeanor charges, or if he was released and not returned to us.” (Id. at

58.) When asked how often such cases arise, Sibert said “[m]ore times than we would like to

remember, but if I had to put a time frame on it, maybe every three months, maybe twice a year,

not a whole lot but often enough that we had to respond to it.” (Id. at 59.) Nevertheless, Sibert

confirmed that there was no official policy in place to deal with such cases; instead, when these

cases were discovered, the DOC “would just hold . . . the inmate to serve his sentence.” (See id.

at 58.) Sibert clarified that when he was describing these situations, he was referring both to

situations where an inmate was released “from [the] Bureau of Prisons and not returned,” as well



       5
          Hurd also cites “several additional cases beyond Mr. Hurd’s including another class
action based on over-detentions.” (Pl.’s Reply at 23 n.8 [ECF 46].) However, these cases, like
Bynum and Barnes, are not factually similar to Hurd’s re-incarceration. See, e.g., Harris v. Gov’t
of District of Columbia, 2019 WL 3605877, at *1 (D.D.C. Aug. 6, 2019) (plaintiff’s “‘in-transit’
hold” was supposed to last a night or two but extended for more than two months because of
missing paperwork). Moreover, both Harris and the other case Hurd cites, Jones v. District of
Columbia, 2019 WL 5690341 (D.D.C. June 13, 2019), were at the motion to dismiss stage, and
thus subject to a different standard of proof—the plaintiffs did not have to provide evidence to
support a claim of municipal liability, they merely had to state a plausible claim.
                                                16
as to situations where “an inmate could have gone to Maryland, served his time, was released

and not returned to us.” (Id. at 59–60.)

       While Hurd argues that Sibert’s testimony demonstrates that situations such as his were

common, and that the District acted inappropriately when it provided no training for such

specific situations (see, e.g., Reply at 23), the case law demonstrates that Sibert’s testimony does

not support these conclusions. For example, in Robinson, the Court found that although the

plaintiff’s evidence of a record of prior animal shootings may have proven the existence of prior

animal shootings generally, it was not sufficient to support municipal liability as “plaintiff has

tendered no evidence suggesting that the majority of these shootings were unconstitutional.”

Robinson v. Pezzat, 83 F. Supp. 3d 258, 269 (D.D.C. 2015), vacated on other grounds by

Robinson, 818 F.3d at 47. Here, although Sibert describes a situation facially similar to Hurd’s

(an inmate serves a sentence outside the District and is not returned to the District to serve a D.C.

sentence afterwards), it is unclear if the situation is in fact similar to Hurd’s. (See Sibert Dep. at

59–60 (“‘[L]ike’ is a big term.”).) More significantly, the Court has no way to know whether

any of these prior incidents cited by Sibert were unconstitutional. See Egudu, 72 F. Supp. 3d at

43 (rejecting evidence of number of arrests, “without more,” as sufficient to “demonstrate a

custom of constitutional violations,” as “the Court will not simply assume that the recorded

arrests were improper”). It is possible that in one or more of the “similar” situations about which

Sibert testified, the individual was erroneously released following completion of a federal prison

sentence, but picked up just one week later while still on supervised release, at which point her

unfinished sentence was observed and she was returned to the DOC to serve the remainder of her

sentence. Not only would this situation not meet the “bright line” test suggested by Hurd, as her

time served added to her time on the street would not exceed the time she was required to serve



                                                  17
(see Tr. at 24:3-24 (Hurd’s attorney agreeing that “society’s interest in consecutive sentences

would [not] outweigh having a potentially dangerous person out on the street that somebody

mistakenly let out” when, for example, a sex offender is released with nine years left on his

sentence)), but it would also go no further than what the Circuit called “unproblematic.” See

Hurd, 864 F.3d at 86 (“If [a] release were mistaken and quickly recognized as such, a prompt

arrest and re-incarceration would seem unproblematic.”).

       Sibert’s testimony also lacks any specification as to the timing of these incidents, which

is necessary to establish a pattern of unconstitutional conduct. See Moore v. District of

Columbia, 79 F. Supp. 3d 121, 140 (D.D.C. 2015) (rejecting the plaintiffs’ attempts to use a

2003 report “to invite the jury to infer that because of warnings made in 2003[,] . . . the same

problem continued unabated for the next five years”); see also Egudu, 72 F. Supp. 3d at 43

(rejecting various pieces of evidence analyzing data from 1996 to 2005, as “that information

would not satisfy plaintiff’s burden to show what was customary in the District in 2009”). Sibert

testified that he worked for the DOC from approximately 1997 to 2013, and that these “like”

situations occurred sometime between two and four times a year. (See Sibert Dep. at 59.) The

Court cannot presume that any of these “like” situations occurred close in time to Hurd’s re-

incarceration in 2011, let alone a significant enough number of them to constitute a pattern or

custom.

       As a result, Sibert’s testimony fails to present the “fully packed, precisely delineated

scenarios” necessary to demonstrate a custom. See Carter v. District of Columbia, 795 F.2d 116,

125 (D.C. Cir. 1986); see also Olaniyi, 876 F. Supp. 2d at 49 (concluding that “evidence offered

by [the plaintiff] concerning deficiencies at the D.C. Jail with respect to patient care in general”




                                                 18
was insufficient to support municipal liability for a claim stemming from the specific issue of

forced medication (internal quotation marks omitted)).

                       c.      Testimony of Michelle Waddy

       Hurd cites to the testimony of Michelle Waddy, an LIE who worked at the DOC at the

time he was re-incarcerated. Waddy, whom the District described in its briefing as a

“disgruntled employee” (see Def.’s Opp. & Reply at 13 [ECF 43]), cited a number of complaints

that arose during her more-than-twenty-year tenure with the DOC. (See generally Waddy Dep.)

For example, she testified that she quit the DOC in 2017 because her supervisor “changed

everything by word of mouth and didn’t want to put nothing [sic] on paper.” (Id. at 8.)

However, none of her complaints relate to a comparable situation to Hurd’s, so they cannot

support a pattern claim. See Olaniyi, 876 F. Supp. 2d at 50 (observing the “necessity of a close

link between the alleged pattern of constitutional violations and the alleged injury”). She

testified to the problem of DOC overdetentions (see Waddy Dep. at 31 (“It’s been a lot of them

since I been there, and I’m sure it’s been more since I left . . . .”)), but she described nothing akin

to Hurd’s experience of re-incarceration. She also testified to a number of “bad releases” that the

DOC made during her tenure, but these involved inmates released directly to self-custody when

in fact they were meant to go into drug programs. (See id. at 25.) As a result, her testimony

cannot support “[a] pattern of similar constitutional violations.” Connick, 563 U.S. at 62.

               2.      Evidence of notice by the District

       Hurd has not adduced any evidence that policymakers were aware of problems such as

his. Because municipalities cannot be held liable “solely on the basis of the existence of an

employer-employee relationship with a tortfeasor,” see Monell, 436 U.S. at 692, plaintiffs must

demonstrate that a municipality was aware of constitutional violations taking place. A “policy



                                                  19
of inaction in light of notice that its program will cause constitutional violations is the functional

equivalent of a decision by [a municipality] itself to violate the Constitution.” Connick, 563 U.S.

at 61–62 (internal quotation marks omitted). However, as Hurd has provided no evidence to

show that the District had notice of a custom or policy of re-incarcerating prisoners in violation

of their constitutional rights, his § 1983 claim fails for this reason as well.

          Hurd’s notice argument relies heavily on the Bynum and Barnes cases. (See, e.g., Pl.’s

Opp. at 24 (“The District has been sued repeatedly in one form or another for the very issue of

over-detentions . . . .”).) According to Hurd, these cases put the District on notice of its

overdetention problem. See Barnes, 793 F. Supp. 2d at 283 (“There is no dispute that the

District was aware, or at least should have been aware, of overdetention problems at its jails

beginning, at the latest, in 2002, when the Bynum lawsuit was filed.). As the Court explained

above, however, Hurd was re-incarcerated, not over-detained. Bynum and Barnes thus did not

put the District on notice of the problem of re-incarcerations like Hurd’s because they do not

represent a “pattern of similar constitutional violations.” Connick, 563 U.S. at 62 (emphasis

added).

          Sibert and Waddy’s testimony also fails to establish notice. Waddy testified that she

brought complaints to her supervisor, one of the wardens, and even the director. (See Waddy

Dep. at 8–9). But even if one could assume that one of those individuals is a policymaker for

purposes of Monell, Waddy never specified what types of complaints she voiced. (See id. at 9

(“I put it in paper on the different things, about ten different things that I disagreed with that

were happening at the facility.”).) Even her release-related complaints do not involve any

situations similar to Hurd’s. (See, e.g., id. at 25 (describing “bad releases” as when an inmate

was released to self-custody rather than a drug program).) Furthermore, Sibert never testified



                                                  20
that he passed along his information to anyone, let alone to a sufficiently senior individual who

would be considered a District policymaker. Hurd’s evidence of notice by the District is

therefore woefully deficient; rather, as far as can be adduced, Hurd-like situations were dealt

with on an ad hoc basis by low-level employees on the rare occasions that they arose.

       At the hearing on this motion, Hurd’s attorney essentially acknowledged that he was not

able to provide evidence of notice to the District of specific situations like Hurd’s—instead, he

suggests that the sort of general notice described above should be sufficient. (See Tr. at 50:24–

51:7 (“[I]f we’re going to talk about notice, you have to have notice of a case that is exactly like

this or actually you don’t have notice, I think that’s the wrong rule. I think the rule here is that

they had plenty of notice. That there was a lot going on that was wrong in the District of

Columbia Department of Corrections, that they were having serious problems with their

management, their paperwork.”).) The Court simply cannot accept such generalized evidence of

notice. See, e.g., Connick, 563 U.S. at 62–63 (describing evidence of prior reversals due to

Brady violations and determining they could not prove a pattern because “[n]one of those cases

involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence

of any kind,” and thus “those incidents are not similar to the violation at issue here, [so] they

could not have put Connick on notice that specific training was necessary to avoid this

constitutional violation”); see also Robinson, 818 F.3d at 47 (concluding that “police reports of

dog shootings provide no basis for a reasonable jury to conclude that the District had notice of a

pattern of likely unconstitutional conduct adequate to prove deliberate indifference” because

reports did not demonstrate that situations were similar to the one at issue).




                                                  21
                3.     Failure to act or deliberate indifference

        Hurd offers no evidence that the District knowingly failed to act or was otherwise

deliberately indifferent to constitutional violations presented by situations like his. As discussed

above, he adduced no evidence that his situation recurred so frequently that District

policymakers should have been aware of it. And vague suggestions that the District could have

improved the release policy and that such improvements would have avoided Hurd’s situation

are not enough. See Robinson, 83 F. Supp. 3d at 270 (“Claims that ‘better or more training’

could have averted harm can be made ‘about almost any encounter resulting in injury’ and are a

flimsy basis for liability.” (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989))); see also

Smith v. District of Columbia, 306 F. Supp. 3d 223, 255 (D.D.C. 2018) (rejecting a claim that the

District was deliberately indifferent to the need for training when the plaintiff’s expert “did not

identify deficiencies in DOC’s training with respect to release orders in particular, and he did not

connect any differences between his preferred training program and DOC’s to what took place in

this case.”).

        In support of his failure to act argument, Hurd argues that “[h]ad D.C. made the promised

changes [resulting from the Barnes and Bynum cases] by 2011, it is likely Mr. Hurd would never

have been over-detained and reimprisoned.” (See Reply at 22–23.) This is plainly incorrect.

For example, in Barnes, Judge Lamberth criticized the District for its number of overdetentions

by suggesting that “many, if not most, of the administrative tasks incident to an inmate’s release

can be undertaken prior to the expiration of a sentence or before a jail’s receipt of a paper court

order authorizing release—unlike in the probable cause context, where all of the administrative

tasks must necessarily follow the detainee’s arrest.” 793 F. Supp. 2d at 276. Looking at Hurd’s

file sooner, on the other hand, would not have accelerated his release; instead, the DOC would



                                                 22
have unearthed the evidence of his unserved time earlier. Hurd was simply not on the same

footing as the inmates described by Judge Lamberth—those “who [are] entitled, at that very

moment, to release, and whom the DOC has absolutely no reason to suspect is the subject of

some other basis for continued detention.” Id. at 276 n.13 (emphasis added). The same faulty

logic can be found in Hurd’s criticism of the District’s changes to its release policies, which he

says “ha[ve] only complicated the policies and procedures making it more likely that over-

detentions occur.” (Pl.’s Opp. at 6.) There is no evidence that the need for additional

supervisory signatures had anything to do with Hurd’s re-incarceration, or that a different reform

would have avoided his injury. See Dave v. D.C. Metro. Police Dep’t, 905 F. Supp. 2d 1, 13

(D.D.C. 2012) (“[S]uch generalized claims without reference to specific facts are insufficient at

the summary judgment stage.”).

       Furthermore, if one accepts Hurd’s argument that the Court should look to Barnes, Judge

Lamberth’s findings cut against him. The Court in Barnes determined that after February 25,

2008, the District demonstrated a sharp decrease in the number of over-detentions. See 793 F.

Supp. 2d at 281. As a result, it concluded that this reduction, “alongside the District’s

implementation in 2008 of measures that even plaintiffs concede have ‘solved’ much of the

overdetention problem, leads this Court to the conclusion that the DOC, from February 2008

forward [to the end of May 2011], could not reasonably be found to have been deliberately

indifferent to the due process rights of overdetention class members during this period.” Id. So

even accepting Hurd’s argument that his situation is sufficiently similar to the Barnes scenario,

the Court cannot both accept Hurd’s argument that Barnes evidences a problem about which the

District was aware and ignore the explicit finding that the District had undertaken substantial

reforms starting in 2008 that had substantially reduced the number of overdetentions. See id.



                                                 23
The same goes for the use of evidence that the District has changed its release procedures. While

Hurd attempts to turn the District’s evidence of policy changes against it (see Reply at 22 (“[The]

fact that it says it made changes to its release processes demonstrates that D.C. knew of the

problem at a policymaking level . . . .” (emphasis in original))), the Court cannot accept such

arguments. See Byrd v. District of Columbia, 297 F. Supp. 2d 136, 141 (D.D.C. 2003) (“[I[f one

were to adopt plaintiff’s approach, a municipality would be ill-advised to evaluate its operational

practices or to institute reforms lest its efforts be labeled as a policy or custom of deliberate

indifference.”).

                                          CONCLUSION

       For the foregoing reasons, the Court concludes Hurd has failed to prove that the District

is liable for any constitutional violations under 42 U.S.C. § 1983. As a result, the Court will

grant the District’s motion for summary judgment (ECF 38) and deny Hurd’s motion for

summary judgment (ECF 41). A separate Order accompanies this Memorandum Opinion.



                                                       _______________________
                                                       ELLEN S. HUVELLE
                                                       United States District Judge


Date: December 11, 2019




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