                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




TONDA WRIGHT,

       Plaintiff,


               v.                                         Civil Action No. 10-901 (JEB)


DISTRICT OF COLUMBIA, et al.,

       Defendants.




                                  MEMORANDUM OPINION

       Johnquan Wright was shot and killed on August 14, 2008. His mother, Plaintiff Tonda

Wright, has brought this suit on behalf of his estate and on her own behalf. She claims that

Defendants – the District of Columbia, which operated the D.C. Fire and Emergency Medical

Service, and Rafael Sa’adah, the Acting Assistant Fire Chief at the time – are to blame for her

son’s untimely death because Chief Sa’adah inappropriately directed emergency response

personnel to cease giving him life-saving care. Because this Court finds that Plaintiff’s sole

federal claim cannot survive summary judgment, the remainder of the case will be dismissed

without prejudice for Plaintiff to return to D.C. Superior Court if she so chooses.

I.     Background

       On August 14, 2008, D.C. Fire and Emergency Medical Service personnel responded to

an emergency call at 33 K Street, N.W. Def. Stat. Undis. Mat. Facts Nos. 1-2. When emergency

personnel arrived on the scene, they discovered two gunshot victims, one of whom was

Plaintiff’s son. Id. No. 3. They immediately began to assess his condition, Pl. Opp., Exh. 5
(Dep. of Christopher Young) at 11, and found that he was unconscious, not breathing, and

without a pulse. Def. Stat. Undis. Mat. Facts No. 3. Meanwhile, Henry Lyles, a paramedic and

32-year veteran of the D.C. Fire Department, arrived and instructed emergency personnel to

begin CPR on Wright. Pl. Opp., Exh. 3 (Dep. of Henry Lyles) at 6, 11. As they complied with

this order, Rosalio Ruiz, the paramedic in charge of the team treating Wright, informed Chief

Sa’adah, the senior official at the scene, that Wright had suffered a number of gunshot wounds,

including one to the head. Pl. Opp., Exh. 10 (Dep. of Rosalio Ruiz) at 73, 94; Pl. Opp., Exh. 9

(Dep. of Rafael Sa’adah) at 175-83. This led Chief Sa’adah to conclude that Wright suffered

from injuries incompatible with life and therefore should be presumed dead on arrival (PDOA).

Sa’adah Dep. at 190-91; Pl. Opp., Exh. 11 (Fire Department Special Care Protocol on Presumed

Dead on Arrival) (setting out that “patients may be presumed dead on arrival if apneic and

pulseless with evidence of . . . [t]raumatic injuries incompatible with life”). Chief Sa’adah

instructed emergency personnel to desist all life-saving efforts on Wright and to instead help

their colleagues treat the other victim. See Young Dep. at 11; Pl. Opp., Exh. 2 (Dep. of Lucy

Jones) at 14; Lyles Dep. at 23-24. Personnel complied with this order, and Wright received no

further medical treatment. Id.

       An autopsy later revealed that Wright had in fact been shot twice in the chest and once in

the leg, but not in the head. See Def. Mot., Exh. 9 (Autopsy Report). This finding has led

several of the paramedics involved in the response call to conclude that Wright should not have

been determined PDOA, and instead that he should have been treated at the scene and

transported to a hospital. Lyles Dep. at 15-16; Ruiz Dep. at 58-59, 94.

       Plaintiff filed suit in May 2009 in the Superior Court of District of Columbia, asserting

claims for medical malpractice and negligent hiring, training, and supervision under both the
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Wrongful Death Act and the Survival Act. The thrust of her suit was that Defendants

misdiagnosed her son’s injuries, leading to the application of the wrong treatment protocol and

thus depriving him of a chance of survival. She avers that though her son’s injuries were life

threatening, he may have survived had he immediately received the appropriate emergency

medical care and been transported to a hospital. Plaintiff twice amended her Complaint, first in

August 20009 and again in May 2010, the latter time to add a constitutional claim under 42

U.S.C. § 1983. In response, Defendants removed the case to this Court, and the parties have now

filed Cross-Motions for Summary Judgment.1

II.     Legal Standard

        Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” FED. R. CIV. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the

outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’

do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895 (quoting Liberty

Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380

(2007); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. The party seeking

summary judgment “bears the heavy burden of establishing that the merits of his case are so


1
       In considering the parties’ competing Motions, the Court has reviewed Defendants’ Motion for Summary
Judgment, Plaintiff’s Opposition thereto and Defendants’ Reply, as well as Plaintiff’s Partial Motion for Summary
Judgment, Defendants’ Opposition thereto, and Plaintiff’s Reply.
                                                        3
clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294,

297 (D.C. Cir. 1987). “Until a movant has met its burden, the opponent of a summary judgment

motion is under no obligation to present any evidence.” Gray v. Greyhound Lines, East, 545

F.2d 169, 174 (D.C. Cir. 1976). When a motion for summary judgment is under consideration,

“the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be

drawn in [their] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac

Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center,

156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of Health

and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment,

the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski

v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

       The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to

provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United

States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely

colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby,

Inc., 477 U.S. at 249-50; see Scott, 550 U.S. at 380 (“[W]here the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for

trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)).



                                                  4
III.    Analysis

        The parties’ competing Motions address both the sole federal claim and the pendent state

claims. Given that the Court grants Defendants’ Motion related to the former, it need not address

either side’s position on the latter.

        Plaintiff claims that Defendants have violated her and her son’s constitutional rights

under 42 U.S.C. § 1983. Sec. Am. Compl., ¶ 72. This statute reads, in relevant part: “Every

person who, under color of any statute, ordinance, regulation, custom, or usage, of . . . the

District of Columbia, subjects . . . any citizen of the United States . . . 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 . . . .” In this case, Plaintiff asserts violations of the Fourth, Fifth, and

Fourteenth Amendments. Sec. Amend. Compl., ¶ 72.

        A. Violations of IV and XIV Amendments

        Plaintiff’s claim based on Fourth and Fourteenth Amendment violations can be

summarily dismissed. She never alleges a search or seizure as required to establish the former,

see U.S. CONST. amend. IV (“The right of the people to be secure in their persons . . . against

unreasonable searches and seizures, shall not be violated.”), and the latter does not apply to the

District. Scales v. District of Columbia, 973 A.2d 722, 725 n.1 (D.C. 2009) (“[T]he Fourteenth

Amendment does not apply to the District of Columbia.”). These claims, moreover, have been

conceded since Plaintiff did not respond in her pleadings to Defendants’ arguments on those

points. See LCvR 7(b).

        B. Violations of V Amendment

        The Fifth Amendment prohibits the federal government from depriving citizens “of life,

liberty, or property, without due process of law.” U.S. CONST. amend. V. Plaintiff has not
                                                    5
specified in her Second Amended Complaint what deprivation she claims occurred on August

14, 2008. Presumably, she pursues this action for the deprivation of life on behalf of her son and

the deprivation of the liberty interest in her son’s companionship on her own behalf. The latter,

however, has been foreclosed in this Circuit since Wright was not a minor at the time of his

death See Butera v. District of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)(“[A] parent does

not have a constitutionally-protected liberty interest in the companionship of a child who is past

minority and independent.”); see also Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 16 n.1 (D.D.C.

2010); Autopsy Report at 1 (listing Johnquan Wright’s age as 18); DC Code § 46-101 (“[T]he

age of majority in the District of Columbia shall be 18 years of age.”). The analysis as to both

claims is nonetheless the same.

       Defendants argue preliminarily that their Motion should be granted because Defendant

Sa’adah’s incorrect assessment of Wright’s injuries did not lead to his death. In other words,

Defendants’ actions never deprived Wright of life. See Def. Mot. at 22. Plaintiff has presented

evidence, in the form of two expert affidavits, that although her son’s “condition was indeed dire,

he was not beyond resuscitation,” Pl. Opp., Exh. 7 (Aff. of Kevin R. Brown) at 6, and that his

injuries were “survivable.” Pl. Opp., Exh. 8 (Aff. of Stephen J. Joyce) at 4. Dr. Joyce went so

far as to declare Defendant Sa’adah’s decision to cease all aid as the proximate cause of Wright’s

death. Id. In reaching their conclusions, the two experts relied on the facts available to the

Court: the depositions and statements by the various actors involved at the scene, the incident

report, and the autopsy. See Brown Aff. at 1-3; Joyce Aff. at 1. (Although Dr. Joyce does not list

the autopsy as part of the material presented to him for review, he refers to its findings in the

report, leading the Court to conclude that he did in fact consider it before making his findings.)

The experts’ conclusion that “Mr. Wright very well could have survived” had he received “the
                                                  6
same life saving care provided the other patient at the scene,” Joyce Aff. at 4, may not be enough

to convince a factfinder that Defendants are to blame for Wright’s death, considering the extent

and seriousness of his injuries and the fact that the other patient died even though he received

emergency care. See Young Dep. at 21. These expert affidavits are sufficient, however, to show

that there is a genuine dispute of material fact as required under Rule 56(a) to survive this

Motion. Compare Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 672-73 (D.C. Cir. 1977)

(upholding summary judgment where trial court found that plaintiff’s expert was unfamiliar with

the record in the case and that his conclusions were no more than “theoretical speculations”) with

Ambrosini v. Labarraque, 966 F.2d 1464 (D.C. Cir. 1992) (finding that an expert’s affidavit was

enough to defeat summary judgment where he stated “a specific fact” based on his scientific

knowledge and review of the case).

       Plaintiff’s constitutional claim nevertheless cannot survive Defendants’ Motion for a

separate and independent reason: the Fifth Amendment does not impose an affirmative duty on a

state to protect the lives of citizens from third parties. In DeShaney v. Winnebago County Dept.

of Social Services, 489 U.S. 189 (1989), a mother whose four-year-old child had been beaten so

severely by his father that he was rendered permanently mentally retarded sued a state social

services provider. The Supreme Court found that a state could not be held responsible for the

acts of a private citizen because the Fourteenth Amendment, “like its counterpart in the Fifth

Amendment . . . was intended to prevent government from abusing its power, or employing it as

an instrument of oppression.” Id. at 196. Even though the state had previously intervened to

protect the child and was effectively on notice that he was in danger, there was no duty to act

because “the Due Process Clause[] generally confer[s] no affirmative right to governmental aid,

even where such aid may be necessary to secure life, liberty, or property interests of which the
                                                 7
government itself may not deprive the individual.” Id. This is because the Due Process Clause

“forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of

law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State

to ensure that those interests do not come to harm through other means.” Id. at 195. In short, the

purpose of the Fifth Amendment is “to protect the people from the State, not to ensure that the

State protect[s] them from each other.” Id. at 196.

        Plaintiff nonetheless avers that her Fifth Amendment claim can survive summary

judgment because her son was in the custody of the District’s emergency personnel at the time he

died. Pl. Opp. at 44-45. DeShaney did discuss an exception to the general rule against state

responsibility in the case of persons in custody: “[B]ecause the prisoner is unable by reason of

the deprivation of his liberty to care for himself, it is only just that the State be required to care

for him.” 489 U.S. at 199. In so doing, the Supreme Court confirmed its previous decisions to

this effect. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976) (finding that states are required

to provide adequate medical care to incarcerated prisoners, reasoning that “it is but just that the

public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty,

care for himself”); Youngberg v. Romeo, 457 U.S. 307 (1982) (extending Estelle to patients

involuntarily committed to mental institutions); City of Revere v. Massachusetts General Hosp.,

463 U.S. 239, 244 (1983) (“The Due Process Clause . . . require[s] the responsible government or

governmental agency to provide medical care to [suspects in police custody] who have been

injured while being apprehended by the police.”).

        In this Circuit, “the custody exception is narrowly construed” so that “[m]ere police

interaction with or assistance to an individual . . . does not necessarily amount to custody.”

Butera, 235 F.3d at 648. In Moses v. District of Columbia, 741 F. Supp. 2d 123 (D.D.C. 2010), a
                                                   8
Court in this District considered the case of a man who had sought medical attention at a District

Fire and Emergency Medical Services station for an apparent heart attack. He died while

awaiting an ambulance even though the personnel on duty had medical training and had access to

a defibrillator. That Court found that he had not been in the District’s custody because the

emergency personnel had returned him to his vehicle to await the ambulance.

       Here, as Plaintiff has not presented any evidence that her son was taken into custody by

emergency personnel, this case remains much closer to Moses than, for example, to Harris v.

District of Columbia, 932 F.2d 10 (D.C. Cir. 1991), where the police restrained someone who

was under the influence of PCP by handcuffing him and placing him in a police wagon and then

delayed taking him to the hospital for an hour and a half. It cannot be said that the District by

“affirmative exercise of its power so restrain[ed] [Wright’s] liberty that it render[ed] him unable

to care for himself.” DeShaney, 489 U.S. at 200. Wright was rendered unable to care for

himself by the unidentified person who shot him, and Defendants imposed no further restrictions

on his liberty. They merely let him remain on the ground, where he tragically died. Even if

Sa’adah had prevented others from treating him, this does not somehow transform his

circumstances into custody. As Defendants never restrained his liberty, the Court cannot find

that Wright was in custody for purposes of this exception.

       Plaintiff alternatively argues that Defendants had a duty to help her son because, though

they did not originally injure him, they “substantially worsened [his] condition[, which] resulted

in his death.” Pl. Opp. at 43. She thus invokes the state-endangerment exception to the general

no-duty rule, which was adopted in this Circuit by Butera: “[A]n individual can assert a

substantive due process right to protection by the District of Columbia from third-party violence

when District of Columbia officials affirmatively act to increase or create the danger that
                                                 9
ultimately results in the individual's harm” where that conduct was “so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.” 235 F.3d at 651 (internal

citation omitted). The Court need not decide whether Defendant Sa’adah’s behavior “shocks the

conscience.” This is because Plaintiff has not made out the requisite showing of increased

endangerment to fulfill the first prong of the Butera test.

       There can be no doubt that Defendants did not create the danger that ultimately resulted

in Wright’s demise. Whoever shot him did that. See id. at 650 (“No constitutional liability

exists where the State actors had no hand in creating a danger but simply stood by and did

nothing when suspicious circumstances dictated a more active role for them.”) (internal citation

omitted); see also Harris, 932 F.2d at 14 (finding that the District had no duty to decedent where

“[his] inability to take care of himself . . . was not due to anything the officers did but was

instead a direct result of his ingestion of PCP”). The exception envisaged in Butera could be

employed if the facts had been reversed – that is, if the District’s acts had somehow left Wright

vulnerable to attack by a gunman – because Butera allows for a constitutional claim where an

individual falls prey to “third-party violence” due to the District’s actions. Id. at 651. Yet here,

as in Moses, “[i]t cannot be said that [D]efendant[s] placed [Wright] in greater danger than he

would have been in had [they] done nothing at all.” 741 F. Supp. 2d at 129. While treating him

may have conceivably saved his life, Defendants’ actions did not increase or create the danger he

would be shot. That is what the exception covers.

       Plaintiff cites another decision in this District that considered the endangerment

exception in a case brought by postal workers in the aftermath of the anthrax scare. See Briscoe

v. Potter, 355 F. Supp. 2d 30 (D.D.C. 2004). They alleged that the head of their organization

“intentionally misled Plaintiffs into believing the facility was safe and prevented them from
                                                  10
acting to preserve their own safety.” Id. at 45. The Court found that the claim could proceed

because the alleged conduct was an affirmative action. Id. at 44-45. Plaintiff argues that

Defendant Sa’adah’s misdiagnosis and wrongful application of the PDOA protocol likewise

should be construed as an affirmative act rather than an omission of treatment. Yet, as in Butera,

but not here, the government action in Briscoe preceded the harm. Here, the danger and injury

had already occurred before Defendants’ arrival at the scene. Plaintiff cannot argue, as those in

Briscoe did, that but for Defendants’ acts her son could have “act[ed] to preserve [his] own

safety.” Id. at 45. Regardless of how Defendants’ acts may be described that night, it simply

cannot be said that they created or increased the danger to Wright, who was unresponsive from

the time they arrived until he was pronounced dead.

       Since none of the DeShaney exceptions apply, Plaintiff’s Fifth Amendment claim cannot

survive summary judgment.

       C. Municipal Liability

       An independent ground to grant Defendant’s Motion as to the District also exists. Even if

Plaintiff could fit within a DeShaney exception, she has not sufficiently made out a

governmental policy to hold the District liable. As set out below, this defense bars Plaintiff’s

constitutional claim against the District, though not against Defendant Sa’adah.

       The Supreme Court has found that an “official policy must be ‘the moving force of the

constitutional violation’ in order to establish the liability of a government body under § 1983.”

Polk County v. Dodson, 454 U.S. 312, 326 (1981) (citing Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 694 (1978)). Courts have found that “a city's

inaction, including its failure to train or supervise its employees adequately, [can] constitute[] a

policy or custom under Monell when it can be said that the failure amounts to deliberate
                                                 11
indifference towards the constitutional rights of persons in its domain.” Daskalea v. District of

Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000) (internal quotations omitted). Plaintiff claims that

this theory applies because the District failed to adequately train its emergency personnel. Pl.

Opp. at 28-31. She points to a section of the June 2006 Inspector General Report in response to

the death of David Rosenbaum, which found that emergency personnel had not appropriately

treated the patient. Id. at 29.

        The citation of the Rosenbaum incident is simply not enough for Plaintiff to survive

Defendant’s Motion. This is so for a couple of reasons. First, the only portion of the I.G. Report

Plaintiff cites states that policies were violated. It does not stand for the proposition that the

District fails to train or supervise its emergency personnel. Second, two incidents years apart and

based on misdiagnoses of different injuries do not constitute evidence of a policy or a general

lack of supervision or training.

        As the Fourth Circuit stated in deciding a factually similar case, in which emergency

response personnel failed to act properly and led to further injury to the plaintiff, “[W]hile a

municipality's ‘policy’ of inaction need not be found to have effectively commanded the

particular violation, it must be of such a character that municipal employees could reasonably

infer from it tacit approval of the conduct in issue. For only so could the requisite causal

connection between policy and constitutional deprivation be found.” Milligan v. City of

Newport News, 743 F.2d 227, 230 (4th Cir. 1984). Even when considered in the light most

favorable to her, Plaintiff has not set forth facts to satisfy this requirement.




                                                  12
        D. Qualified Immunity

        Defendant Sa’adah has also put forth a qualified immunity defense. Because the Court

will dismiss the case against him for the reasons set out in section III.B., supra, it does not reach

this issue.

        E. Pendent Jurisdiction

        District courts are given supplemental jurisdiction over state claims that “form part of the

same case or controversy” as federal claims over which they have original jurisdiction. 18

U.S.C. § 1367(a). By the same token, they “may decline to exercise supplemental jurisdiction

over [such] claim[s] . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction.” § 1367(c)(3). The decision of whether to exercise supplemental

jurisdiction where a court has dismissed all federal claims is left to the court’s discretion as

“pendent jurisdiction is a doctrine of discretion, not a plaintiff's right.” United Mine Workers v.

Gibbs, 383 U.S. 715, 726 (1966), quoted in Shekoyan v. Sibley Intern., 409 F.3d 414, 423 (D.C.

2005). When deciding whether to exercise pendent jurisdiction over state claims, federal courts

should consider “judicial economy, convenience and fairness to litigants.” Id. Nonetheless, “in

the usual case in which all federal-law claims are eliminated before trial, the balance of factors to

be considered under the pendent jurisdiction doctrine —judicial economy, convenience, fairness,

and comity — will point toward declining to exercise jurisdiction over the remaining state-law

claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see Edmondson &

Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (finding the

discretion set out in Carnegie-Mellon Univ. “unaffected by the subsequent enactment of 28

U.S.C. § 1367(d), in the Judicial Improvements Act of 1990”).



                                                   13
       Here the factors weigh against a retention of the case. The matter was originally pending

in the Superior Court for a year before removal. This Court has handled nothing in the case

beyond the current Motion for Summary Judgment and has not dealt at all with the pendent state

claims. Compare Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir. 2010)

(finding that district court appropriately retained pendent jurisdiction over state claims where it

had “invested time and resources” in the case). Finally, Plaintiff will not be prejudiced because

28 U.S.C. 1367(d) provides for a tolling of the statute of limitations during the period the case

was here and for at least 30 days thereafter. See Shekoyan, 409 F.3d at 419 (finding that because

of this tolling, dismissal of the pendent state claims “will not adversely impact plaintiff's ability

to pursue his District of Columbia claims in the local court system.”) (internal citation omitted).

       The Court declines to exercise pendent jurisdiction over Plaintiff’s remaining state

claims. Those will be dismissed without prejudice. A separate Order consistent with this

Opinion will be issued on this day.

       SO ORDERED.

                                                       /s/ James E. Boasberg
                                                         JAMES E. BOASBERG
                                                       United States District Judge
Date: July 29, 2011




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