227 F.3d 433 (D.C. Cir. 2000)
Sunday Daskalea, Appelleev.District of Columbia and Margaret A. Moore, Director, D.C. Department of Corrections, Appellants
No. 98-7207
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 1999Decided August 8, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 96cv02496)
Lutz Alexander Prager, Assistant Deputy Corporation  Counsel, Office of Corporation Counsel, argued the cause for  appellants.  With him on the briefs were Jo Anne Robinson,  Interim Corporation Counsel at the time appellants' main  brief was filed, Robert R. Rigsby, Interim Corporation Counsel at the time appellants' reply brief was filed, and Charles  L. Reischel, Deputy Corporation Counsel.  Donna M. Murasky, Assistant Corporation Counsel, entered an appearance.
Gregory L. Lattimer argued the cause and filed the brief  for appellee.
Before:  Sentelle, Henderson, and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Uncontradicted evidence at the  trial of this case established the routine sexual abuse of  women inmates by prison guards at the District of Columbia  Jail.  The plaintiff, Sunday Daskalea, suffered from a continuing course of such abuse, culminating in an evening  during which "correctional" officers forced her to dance  naked on a table before more than a hundred chanting,  jeering guards and inmates.  The District asks us to relieve it  of all responsibility for this conduct, contending that the facts  fail to establish the "deliberate indifference" necessary to  sustain a municipality's liability for the acts of its employees. But "deliberate indifference" is precisely how any reasonable  person would describe the District's attitude toward its women prisoners, and we therefore uphold in full the jury's award  of $350,000 in compensatory damages.  We are unable, however, to uphold the jury's punitive damages award because  District of Columbia law bars the imposition of such awards  against the District.  And because Daskalea sued co-defendant Margaret Moore solely in her official capacity as  Director of the Department of Corrections, plaintiff must look  to the District alone for payment of compensation.


2
* This is not the first time the federal courts have reviewed  charges of sexual abuse by D.C. correctional officers against  female inmates.  In 1993, a class action was filed on behalf of  all women prisoners under the care of the District of Columbia correctional system.  See Women Prisoners v. District of  Columbia, 877 F. Supp. 634 (D.D.C. 1994).  In that case, the district court found a pattern of rape and sexual assault-coupled with other forms of sexual harassment, inadequate or  nonexistent staff training, and retaliation against women who  filed complaints--that rose to a level of objective cruelty  sufficient to violate the Eighth Amendment.  See Women  Prisoners, 877 F. Supp. at 639-43, 664-67;  see also Women  Prisoners v. District of Columbia, 93 F.3d 910, 929, 931 (D.C.  Cir. 1996).  The court further found that the inmates had  filed complaints and written letters to prison administrators  to no avail, and that the harassment was obvious and widely  known.  It concluded that the District of Columbia had acted  "with 'deliberate indifference' to the condition of sexual  harassment which women prisoners at the [District's facilities] must endure," and that the District was therefore liable  under 42 U.S.C. § 1983 for the violation of the inmates'  constitutional rights.  See Women Prisoners, 877 F. Supp. at  665-67.1


3
On the basis of the foregoing, the Women Prisoners court  issued a detailed order on December 13, 1994, requiring the  Department of Corrections to "take all action necessary to  remedy and prevent" sexual harassment of female inmates by  its employees.  The court specifically directed the Department to issue, distribute, and post a sexual harassment policy  within sixty days, and to conduct mandatory training on  sexual harassment for both employees and female inmates. See Women Prisoners, 877 F. Supp. at 679-81.


4
On May 15, 1995, the Department of Corrections issued a  policy in response to the Women Prisoners order.  The policy  forbade sexual misconduct and harassment, as well as retaliation for the filing of complaints regarding such behavior, and  directed the institution of mandatory training.  Although  some of the guards who testified at Daskalea's trial remembered receiving the policy, others did not.  No inmate testified to receiving the policy, and officers admitted that the  policy was never posted.  There was no evidence that the  training requirements were implemented nor that any significant corrective intervention occurred.


5
Against this background, we now turn to a consideration of  the specific facts of Daskalea's case.


6
* Daskalea was arrested on drug charges and sent to the  D.C. Jail on October 26, 1994--two months before the district  court issued its decision and order in the Women Prisoners  litigation.  She was initially housed in South 1, the unit used  primarily for women awaiting trial and for those in either  solitary confinement or protective custody.  From the beginning of her confinement, Daskalea testified that she was  called "whore," "white bitch," "cracker," and other epithets by  guards and inmates alike.2


7
In January 1995, Daskalea was moved to Southeast 1.This unit housed approximately eighty women who were  serving short-term sentences.  Upon arrival, she was met  with rumors that she was an undercover FBI agent.  She was  threatened by other inmates, including one who--in the presence of several guards who did not intervene--told her:"Bitch, you better sleep with one eye open."  Daskalea's fears  of attack were realized when she was subsequently assaulted  by two inmates.


8
The civilian employee in charge of the Jail's library, Edward Gardner, was well known for providing inmates with  cigarettes in exchange for sex.  It was also widely known that the rooms adjacent to the library were routinely used for sex  between library staff and inmates.  When Daskalea first  attempted to use the library's research materials, Gardner  leered at her and rubbed his genitals.  She rebuffed his  advances, and thereafter had difficulty obtaining any assistance from the library staff.  Some time later, a guard took  Daskalea out of her cell and brought her to the library.  The  guard led her to a room where a male inmate, notorious for  engaging in sexual misconduct in the library, was waiting. The inmate then attacked her, attempting a sexual assault.


9
As time went on, the campaign of fear, harassment, and  violence against Daskalea--on the part of both staff and  inmates--intensified.  Guards told her they would break her. One day, when inmates were supposed to be on lock down, a  prisoner known as Bootsie came to Daskalea's cell and spat  and cursed at her.  Later that day a guard, Sgt. Theresa  Noble, forcibly restrained Daskalea's hands while Bootsie  attacked her.  Plaintiff stopped sleeping at night for fear she  would be raped or assaulted.


10
The testimony at trial disclosed a culture of routine acceptance of sexual encounters between staff and inmates on  Southeast 1.  One cell, known as Cell 73, was kept empty and  used for sex between prisoners and guards.  It was also used  by staff to sleep off drunkenness--particularly by Officer  Yvonne Walker, the officer in charge of the evening shift. There was also testimony that one of the inmates, Jacky  Newby, was threatened by a guard jealous of New by's sexual  relationship with evening-shift guard Quida Graham.


11
Daskalea repeatedly complained to the authorities about  sexual harassment.  She filed more than fifteen official Internal Grievance Procedure Forms and wrote letters directly to,  among others, the Deputy Warden, Warden, and Director  Moore.  She also wrote to the judge in her criminal case, who  held a hearing at which Daskalea's complaints of sexual  harassment were aired.  Notwithstanding the judge's written  recommendation that "defendant be moved from D.C. Jail," J.A. at 484 (commitment order), she was not.  Nor did prison  authorities intervene in any other way to stop the abuse.


12
All of the above turned out to be a mere prelude to the  events of July 20, 1995.During the weeks preceding that  date--on at least three occasions and perhaps as often as  weekly--Officer Walker, the head guard on the evening shift,  organized a series of evenings during which female inmates  stripped and danced provocatively to loud music.  Both female and male guards were present and, according to the  testimony at trial, some guards assaulted inmates who refused to dance.


13
On the evening of July 20, the Jail's cell doors were kept  open because the air conditioning system was malfunctioning. Sometime that evening, while plaintiff was sitting in her cell,  loud music began and inmates started moving to the dining  area.  Daskalea followed, arriving late and standing at the  back of the crowd.  There, at the center of attention, was  Officer Walker, doing a handstand on one of the dining tables  and gyrating her hips provocatively.  Soon, at Walker's instigation, three inmates climbed onto the table and began  dancing, completely naked, while the crowd cheered.  One of  the dancing inmates performed a lewd act, and Officer Walker placed her head between the inmate's legs to get a closer  look.  By that point, all of the inmates, numerous female  guards, and several male guards and maintenance workers  were in attendance.


14
Then, someone called out Daskalea's name.  Fearing what  might be coming, plaintiff fled back to her cell, but was  unable to close the door.  A few minutes later, Officer Walker  bellowed out the command:  "Get Sunday down here!"  The  crowd began chanting Daskalea's name, and the dancing  stopped.  Two inmates pulled plaintiff out of her cell, one  taking each arm while a third followed behind preventing  escape.  The inmates dragged Daskalea to the center of the  crowd.  Officer Walker commanded her to dance, and when  Daskalea hesitated, Walker visibly angered.  Afraid, Daskalea complied.  She removed all of her clothes except for her  underwear and attempted to dance to the music.  But she was in such a state of shock and fear that her legs trembled. Guards began shouting and clapping;  some flashed money. Officer Walker tried to get Daskalea to remove her underwear.  An inmate began rubbing baby oil all over Daskalea's  body.  The inmate then began rubbing her own body against  Daskalea's.  Plaintiff lost control of her legs and collapsed to  the ground.  The other inmate lay on top of her.  Eventually,  the guards permitted Daskalea to take her clothes and return  to her cell.  Later that night, both guards and inmates  approached her, communicating sexual interest.  One guard  exposed herself to Daskalea while telling her how much she  enjoyed the dance.


15
During the next few days, word spread about the incident. When inmate New by submitted a grievance complaining of  sexual harassment, assault, and threats by correctional officers, Lt. Edward Given "counseled" New by to mind her own  business.  Subsequently, Daskalea was summoned to the  office of a Mr. Lytle, who asked her about the forced striptease.  Although Daskalea expressed concern that guards  would retaliate against her if she discussed it, Lytle assured  her that they would not.


16
Just days later, however, an officer arrived at Daskalea's  cell and demanded that she turn over all of her underwear as  "contraband."  Plaintiff's request to talk to Lytle was ignored.  A lieutenant appeared, told Daskalea she was going  to solitary, and when she protested threatened to mace her. She was then placed in solitary confinement, without any of  her belongings and, at first, without a mattress.  A guard  who went back to Daskalea's cell to retrieve her personal  items, including her legal papers, found another guard going  through them.  The second guard told the first that Daskalea  would not be getting them back.


17
Daskalea's requests to call an attorney were refused.  She  wrote a letter to the Warden to report the forced stripping. When she subsequently saw the Warden, however, he  brushed her off and turned away.


18
The Warden appointed a committee, headed by Acting  Deputy Warden Brenda Makins, to investigate the nude dancing incidents.  When the Makins' Committee asked to  speak with Daskalea in early August--at which time she was  being held in solitary confinement--it was informed that she  had already been discharged.  The Committee concluded that  Daskalea had been forced to dance for the assemblage (including both female and male guards) against her will, and  that nude dancing had taken place on three earlier dates the  same month.  The Makins Report named fourteen guards  who had "aided and abetted" the "sexual misconduct" and/or  "assault."  These included the lead guard, Officer Walker,  who was also found to have attacked another prisoner while  the prisoner was hand-cuffed and in the presence of other  guards.  In addition, the Committee concluded that eight  officers, ranging from corporals to lieutenants, had been  negligent, and that the "misconduct/assault was effected due  to," among other things, "poorly trained supervisors."  The  Committee further found that officers had tried to cover up  the incidents by providing it with false information.  At trial,  Director Moore testified that she had never read the Makins  Report.

B

19
Daskalea was released from prison at the end of August  1995.  On October 30, 1996, she filed a lawsuit alleging  violations of her civil rights under 42 U.S.C. § 1983.  Her  second amended complaint added common law claims of  negligent supervision and intentional infliction of emotional  distress.  The parties agreed to refer the case to a magistrate  judge for all purposes pursuant to 28 U.S.C. § 636(c)(1).


20
At trial, the named defendants were the District of Columbia and Director Moore.  Daskalea testified on her own  behalf, along with other inmates and six former or present  Department of Corrections employees.  Among the latter  were Brenda Makins, head of the investigatory committee,  whose report was introduced into evidence.  Daskalea also  called as a witness defendant Moore, who, among other  things, testified about the district court's findings and order  in the Women Prisoners case;  the order itself was entered into evidence.  Defendants introduced no evidence.  The jury  found them liable on all counts and awarded $350,000 in  compensatory damages and $5 million in punitive damages. Defendants moved for judgment as a matter of law or, in the  alternative, for a new trial or remittitur on the ground that  the damages award was excessive.  The court denied the  motion.


21
In this court, defendants press most of the arguments they  advanced below.  In particular, they deny liability under  section 1983, deny liability under the common law of the  District, assert immunity against punitive damages, and contend that Director Moore cannot be held personally liable  because she was sued solely in her official capacity.  We  consider each of these contentions below.

II

22
We begin with an examination of the issues raised by the  District regarding the jury's finding of liability and award of  damages under 42 U.S.C. § 1983.


23
* Section 1 of the Civil Rights Act of 1871, now codified at 42  U.S.C. § 1983, provides a cause of action for monetary damages and injunctive relief against "[e]very person who, under  color of [law] ... subjects or causes to be subjected, any  person ... to the deprivation of any rights, privileges, or  immunities secured by the Constitution...."  The District  does not dispute that the guards who assaulted and tormented plaintiff violated her Eighth Amendment right to be free  of "cruel and unusual punishments."  U.S. Const. amend.  VIII;  see Hudson v. McMillian, 503 U.S. 1, 7-9 (1992)  (holding Eighth Amendment is violated, even in the absence  of serious injury, when guard uses force against prisoner  maliciously and sadistically to cause harm, rather than in  good-faith effort to maintain discipline);  Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000) (holding guard's  attempted rape of prisoner constituted Eighth Amendment violation).  The only question is whether the District may be  held liable for that violation.3


24
There is also no disagreement over the appropriate standard for determining whether the District may be held liable. In Monell v. Department of Social Services, 436 U.S. 658  (1978), the Supreme Court ruled that a municipality is a  "person" who can be held liable under section 1983, but only  when the municipality's "policy or custom ... inflicts the  injury."  Id. at 694.  In subsequent cases, the Supreme Court  and this court have held that a city's inaction, including its  failure to train or supervise its employees adequately, constitutes a "policy or custom" under Monell when it can be said  that the failure amounts to " 'deliberate indifference' towards  the constitutional rights of persons in its domain."  City of  Canton v. Harris, 489 U.S. 378, 388-89 & n.7 (1989) (recognizing municipal liability under § 1983 for failure to train  adequately);  see Rogala v. District of Columbia, 161 F.3d 44,  56 (D.C. Cir. 1998) (recognizing liability for failure to train or  supervise);  Triplett v. District of Columbia, 108 F.3d 1450,  1453 (D.C. Cir. 1997) (noting that "inaction giving rise to or  endorsing a custom" can be basis of § 1983 liability).4


25
The District has no objection to the manner in which the  jury was charged on the question of municipal liability.  Its  only contention is that there was insufficient evidence upon  which to base a finding of deliberate indifference, and that the  magistrate should therefore have granted its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).  We review de novo a trial court's ruling on such a  motion.  See United States ex rel. Yesudian v. Howard Univ.,  153 F.3d 731, 735 (D.C. Cir. 1998).  Because granting judgment as a matter of law "intrudes upon the rightful province  of the jury, it is highly disfavored."  Id. (quoting Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994)).  It "is warranted  only if 'no reasonable juror could reach the verdict rendered  in th[e] case.' "  Id. (quoting Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 473 (D.C. Cir. 1987)).


26
We conclude that the jury had more than sufficient evidence upon which to base its finding of deliberate indifference.  Only seven months prior to Daskalea's forced striptease, a federal district court had found the District liable  under section 1983 for being deliberately indifferent to the  repeated sexual abuse and harassment of women prisoners by  D.C. correctional officers.  The court noted a failure to train  officers to prevent such misconduct, and ordered the District  to take all steps necessary to prevent sexual harassment of  female prisoners, including the institution of mandatory training.  Given this history, the District and its policymakers  were on notice that D.C. guards lacked basic respect for the  rights of female inmates, and that absent substantial intervention, the pattern of unconstitutional behavior would persist.


27
Notwithstanding the court's unequivocal findings and order, the sexual abuse of women prisoners at Southeast 1  continued in an open and notorious manner.  The use of the  library for sexual trysts between guards and inmates was well  known.  Nude dancing incidents, accompanied by blaring  music and raucous crowds, took place on a regular basis. There was no evidence that a training program or any other  corrective measure was implemented.  Daskalea repeatedly  complained of sexual abuse, sending grievance forms and  letters to everyone from correctional officers to the Deputy  Warden, Warden, and Director of the Department.  Given  the notice afforded by the Women Prisoners order and  Daskalea's own letters, and the open and notorious nature of  the continued abuse, a jury could reasonably have concluded  that the District was deliberately indifferent to the constitutional rights of its women prisoners.  See Canton, 489 U.S. at  390 n.10 (recognizing municipal liability where officers "so  often violate constitutional rights that the need for further  training must have been plainly obvious to the city policymakers");  Atchinson, 73 F.3d at 421 (same);  see also Board of County Comm'rs v. Brown, 520 U.S. 397, 407-08 (1997)  (recognizing that "the existence of a pattern of tortious  conduct by inadequately trained employees may tend to show  that the lack of proper training ... is the 'moving force'  behind the plaintiff's injury");  id. at 407 (noting that "municipal decision makers['].... continued adherence to an approach that they know or should know has failed to prevent  tortious conduct by employees may establish the conscious  disregard for the consequences of their action--the 'deliberate indifference'--necessary to trigger municipal liability").


28
Finally, the jury had additional, direct evidence from which  it could have concluded that the District's policymakers were  indifferent to the plight of women in the Jail, and specifically  to the plight of Sunday Daskalea.  Margaret Moore, Director  of the Department of Corrections, testified at the trial.  Notwithstanding the notoriety of the incident, Moore conceded  that she had not read the Makins Report and had not  familiarized herself with the events at issue.  Moreover,  notwithstanding the findings of the report, Moore pronounced  herself unaware of the multiple nude dancing incidents that  preceded Daskalea's humiliation, and she took no action to  protect Daskalea from the subsequent harassment and solitary confinement that a jury reasonably could have regarded  as retaliation for Daskalea's complaints.


29
The District's principal defense to section 1983 liability is  that, because the abuses in this case were committed by  female guards, while those in Women Prisoners were committed by males, Women Prisoners did not sufficiently put it on  notice of the kind of constitutional violations that Daskalea  would suffer.  We reject this argument as cutting the notice  issue much too finely.  Moreover, its premise is factually  inaccurate:  several of the incidents in this case did involve  male-on-female harassment.  To take but three examples: the librarian who demanded sexual favors of Daskalea was a  male;  the guard who brought her to the library to be  attacked by a male prisoner was a male;  and the group of  guards and other employees who were "entertained" by Daskalea's forced striptease included several males.


30
The District also attempts to turn the very court order that  required it to issue a harassment policy into a defense against  liability for its guards' harassment.  Because the Department  of Corrections eventually did issue such a policy, the District  argues, it is clear that sexual harassment was against District  "policy" and hence may not be the subject of a section 1983  action.  This argument has two flaws.  First, the policy upon  which the District relies was not issued until well after many  of the events of which Daskalea complains.  Second, a "paper" policy cannot insulate a municipality from liability where  there is evidence, as there was here, that the municipality was  deliberately indifferent to the policy's violation.  See Ware v.  Jackson County, 150 F.3d 873, 882 (8th Cir. 1998) ("[T]he  existence of written policies of a defendant are of no moment  in the face of evidence that such policies are neitherfollowed  nor enforced.").  That evidence included not only the continued blatant violation of the policy, but also the fact that the  policy was never posted, that some guards did not recall  receiving it, that inmates never received it, and that there  was no evidence of the training that was supposed to accompany it.  Indeed, the Department purportedly had a "policy"  against sexual harassment even before the court order in  Women Prisoners--a policy that court found to have been "of  little value."  877 F. Supp. at 640.


31
The District makes one further attempt at legal jujitsu-trying to turn Daskalea's evidence against her by arguing  that the very fact that guards sought to conceal the July 20  incident is proof that the abuse was only undertaken "by a  small group of rogue employees, acting surreptitiously."  Reply Br. at 16.  In Triplett v. District of Columbia, we did note  that "[c]over-up efforts at relatively low levels in the hierarchy not only reduce the likelihood that policymakers will  learn of the covert practice, but suggest a belief by the  subordinates that their behavior violates established policy."108 F.3d 1450, 1453 (D.C. Cir. 1997).  But here the misconduct can hardly be described as that of a few "rogues."  The  District's own investigative committee charged fourteen  guards with "aiding and abetting" sexual misconduct and/or  assault, and charged several more--including supervisors and lieutenants--with negligence.  Moreover, whatever the participants did to cover up the July 20 incident, the series of  bacchanalian nights that preceded it was open and notorious,  and the jury could reasonably have concluded that if such  behavior were not known to prison policymakers, it was only  because of their deliberate indifference to conditions at the  Jail.  Accordingly, we affirm the jury's verdict against the  District under 42 U.S.C. § 1983.5

B

32
The District urges that even if we affirm the jury's finding  of liability, we should grant a new trial with respect to the  amount of the compensatory damages award.  We review  trial courts' rulings on motions for new trial only for an abuse  of discretion.  See Langevine v. District of Columbia, 106  F.3d 1018, 1023 (D.C. Cir. 1997).  A jury award must stand  unless it is "beyond all reason" or "so great as to shock the  conscience."  Williams v. Steuart Motor Co., 494 F.2d 1074,  1085 (D.C. Cir. 1974).  "Courts may not set aside a jury  verdict merely deemed generous;  rather, the verdict must be  so unreasonably high as to result in a miscarriage of justice."Langevine, 106 F.3d at 1024 (citing Barry v. Edmunds, 116  U.S. 550, 565 (1886)).  And remittitur of a jury verdict is  appropriate only if the verdict "is so inordinately large as  obviously to exceed the maximum limit of a reasonable range  within which the jury may properly operate."  Id. at 1024  (internal quotation omitted);  see Carter v. District of Columbia, 795 F.2d 116, 135 n.13 (D.C. Cir. 1986).


33
The District argues that there was insufficient evidence to  justify a compensatory award of $350,000 because Daskalea "suffered no physical injury," because her damages evidence  was limited to her own testimony, and because she did not  establish a "causal link" between the unlawful acts and the  harm she suffered.  We disagree.


34
First, it is well established that "mental and emotional  distress" are "compensable under § 1983," even in the absence of physical injury.  Carey v. Piphus,435 U.S. 247, 264  (1978);  see Gray v. Spillman, 925 F.2d 90, 94 (4th Cir. 1991)  (noting that "even in the absence of physical injury," plaintiff  may prove actual damages under § 1983 "based on injuries  such as 'personal humiliation' and 'mental anguish and suffering' ") (quoting Memphis Community Sch. Dist. v. Stachura,  477 U.S. 299, 307 (1986)).  Moreover, Daskalea plainly did  suffer "physical" injury through sexual assault.  If what the  District means is that she did not suffer permanent injury  from such attacks, we emphatically disagree with the proposition that a person may not recover damages for a constitutional violation unless she suffers lasting physical harm.


35
Second, no expert testimony was required to bolster that of  Daskalea and her witnesses, or to show the causal link  between her treatment in prison and her injuries.  See Price  v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996) ("A  survey of the case law reveals that a plaintiff's testimony,  standing alone, may support a claim of emotional distress  precipitated by a constitutional violation.") (collecting cases).The unrebutted evidence showed that she was subjected to  continuing sexual abuse and harassment, was denied library  assistance because she refused to have sex with the librarian,  was set up by correctional officers to be assaulted, was  attacked with the assistance of correctional officers, was  forced to perform a striptease for guards and inmates, and  thereafter was confined in isolation without underwear or a  mattress.  Daskalea testified that, as a result, she felt constant stress, anxiety, and dread of imminent sexual attack. She had to sleep during the day for fear of what the guards  might do at night.  After her release, she suffered from  insomnia and eating disorders, and spent months emotionally  and psychologically debilitated, withdrawn, and depressed. These injuries are hardly surprising or unexpected in light of the abuse Daskalea suffered, and it does not take an expert to  confirm the jury's common sense with respect to both their  existence and cause.


36
Finally, we have no basis for questioning the amount of the  jury's award.  The jury's valuation of Daskalea's damages  "was neither beyond all reason nor so great as to shock the  conscience."  Langevine, 106 F.3d at 1024 (affirming award of  $200,000 under § 1983 for, inter alia, pain, suffering, humiliation, and emotional distress, despite only minor physical  injury arising from single incident).  Indeed, a "court must be  especially hesitant to disturb a jury's determination of damages in cases involving intangible and non-economic injuries."Id.  The magistrate's denial of the District's motion for a new  trial is therefore affirmed.6

III

37
In addition to finding the District liable for violating section  1983, the jury found it liable on Daskalea's pendent claim for  negligent supervision under the common law.  The damages  verdict did not distinguish between the grounds for liability,  and Daskalea concedes that both theories represented attempts to impose liability for the same predicate acts.  The  District challenges this ground for liability as well.


38
Under District of Columbia law, prison authorities have "a  duty to exercise reasonable care under the circumstances in  the protection and safekeeping of prisoners," Toy v. District  of Columbia, 549 A.2d 1, 6 (D.C. 1988), including the duty "to  use reasonable care in supervising and controlling" their  employees, Morgan v. District of Columbia, 449 A.2d 1102, 1108 & n.3 (D.C. 1982), rev'd on other grounds, 468 A.2d 1306  (1983) (en banc).7  The District may be held liable for damages caused by its negligence in carrying out that duty.  See  Finkelstein v. District of Columbia, 593 A.2d 591, 594-95  (D.C. 1991) (holding District liable for negligence in death of  prisoner).  That the District negligently supervised its employees in this case is an a fortiori conclusion from the  finding, discussed in Part II. A. above, that the District displayed deliberate indifference with respect to the treatment  of women prisoners by correctional officers.


39
The District's only real challenge to liability for negligent  supervision is its claim that proof of the standard of care  requires expert testimony, which Daskalea did not offer. That, however, is not the law of the District of Columbia.  To  the contrary, the rule is that "[p]roof of a deviation from the  applicable standard of care need not include expert testimony  where the alleged negligent act is 'within the realm of common knowledge and everyday experience.' "  Toy, 549 A.2d at  6 (quoting District of Columbia v. White, 442 A.2d 159, 164  (D.C. 1982)).  Expert testimony is required only "where the  subject presented is 'so distinctly related to some science,  profession, or occupation as to be beyond the ken of the  average layperson.' "  Id. (quoting District of Columbia v.  Peters, 527 A.2d 1269, 1273 (D.C. 1987)).


40
It is true that in cases involving assaults on prisoners by  fellow prisoners, the District of Columbia Court of Appeals  has held expert testimony necessary to establish the standard  of care for "secur[ing] the safety of an inmate," because a  "reasonably prudent juror cannot be expected to appreciate  the ramifications of prison security."  District of Columbia v.  Carmichael, 577 A.2d 312, 314 (D.C. 1990) (quoting Hughes,  425 A.2d at 1303);  cf. Toy, 549 A.2d at 9 (holding expert  testimony necessary to establish standard of care for administration of cardiopulmonary resuscitation).  But it does not take an expert to establish that the District was negligent in  permitting the kind of persistent, open and notorious conduct  at issue here.  Surely a juror could reasonably conclude that  the District had been negligent (at best) when it failed to  notice, let alone stop, a continuing series of evening stripteases, accompanied by blaring music and guard-on-inmate violence.  See Morgan, 449 A.2d at 1106, 1109 (stating that  expert testimony is not required to establish "standard of  care for control and supervision of police officers" because  "[d]iscipline of police officers ... is not a matter which  laymen are incapable of intelligently evaluating without the  assistance of expert testimony") (internal quotation omitted).


41
Nor did Daskalea's jury have to rely only upon its common  sense.  As we have noted, the Department's own investigating committee concluded that eight officers, ranging from  corporals to lieutenants, had been negligent, and that the  "misconduct/assault was effected due to," among other things,  "poorly trained supervisors."  Moreover, Patricia Jackson,  Deputy Warden at the time of the events in question, testified  that she agreed with the committee that the supervision had  been inadequate, that officers were negligent, and that the  Jail was grossly negligent in protecting women from sexual  misconduct.


42
The District also attacks the amount of damages awarded  for negligent supervision, noting that the District of Columbia  Code bars local law claims against the District unless, within  six months after the injury, the potential claimant gives notice  in writing of the "circumstances."  D.C. Code § 12-309;  see  Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C.  1999).  Because Daskalea did not send the required notice  until November 21, 1995, the District contends she cannot  recover for any injuries suffered before May 21 of that year. We need not resolve the merits of this contention, however,  as it has no bearing on the result in this case.  The six-month  notice requirement of the D.C. Code does not apply to  plaintiff's claim under section 1983, see Brown v. United  States, 742 F.2d 1498, 1509 (D.C. Cir. 1984) (en banc), and that cause of action therefore provides an independent basis  for the full amount of the damages award.8

IV

43
In addition to compensatory damages, the jury awarded  Daskalea $5 million in punitive damages for her D.C. common  law claims.  In this Part, we consider the permissibility of  that award.


44
Daskalea did not seek punitive damages under 42 U.S.C.  § 1983, conceding that she was not eligible for them in light  of the Supreme Court's decision in City of Newport v. Fact  Concerts, Inc., 453 U.S. 247 (1981).  See Daskalea Br. at 19.In Fact Concerts, the Court considered whether punitive  damages may be awarded against municipalities under section  1983.  It began by noting that municipalities had long been  held immune from punitive damages under the law of the  "vast majority" of the states.  453 U.S. at 259-60.  It then  surveyed the rationales for that result, declaring that "punitive damages imposed on a municipality are in effect a  windfall to a fully compensated plaintiff[,] are likely accompanied by an increase in taxes or a reduction of public services  for the citizens footing the bill," and punish only the "blameless or unknowing taxpayers" rather than the true wrongdoer, the offending government official.  Id. at 267.  Finding  the same principles applicable to suits brought under section  1983, the Supreme Court concluded that "a municipality is  immune from punitive damages" under that statute as well.Id. at 271.  In a footnote, the Court preserved a potential  exception:  "It is perhaps possible to imagine an extreme  situation where the taxpayers are directly responsible for  perpetrating an outrageous abuse of constitutional rights."Id. at 267 n.29


45
The District contends that it is immune from punitive  damages for the common law tort of negligent supervision,  just as it is for a violation of section 1983.  As the District  points out, the D.C. Court of Appeals has never permitted  such an award.  In Smith v. District of Columbia, 336 A.2d  831 (D.C. 1975), a case decided before Fact Concerts, the  Court of Appeals rejected a claim against the District for  punitive damages resulting from false arrest and assault.The court noted that "[t]he clear weight of authority in the  states is that as a general rule there can be no recovery of  punitive damages against a municipality absent a statute  expressly authorizing it."  336 A.2d at 832.  It then proceeded to quote six paragraphs from a Florida Supreme Court  opinion explaining the rationales for such immunity--rationales similar to those later surveyed by the U.S. Supreme  Court in Fact Concerts.  See 336 A.2d at 832 (quoting Fisher  v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965)).9 On the  basis of the Florida court's rationales, the D.C. Court of  Appeals concluded:  "Absent extraordinary circumstances not  present here, we agree with the weight of authority and  conclude the District of Columbia is not liable for punitive  damages."  Id. at 832.


46
The District argues that notwithstanding the Court of  Appeals' caveat--"absent extraordinary circumstances not  presenthere"--punitive damages are never available against  the District for wrongs committed by its employees.  That  argument is not without support.  The Florida opinion upon  which Smith rested held municipalities wholly immune in the  absence of a legislative authorization.  See Fisher, 172 So. 2d  at 457.  And in a subsequent en banc opinion, the D.C. Court  of Appeals stated, this time without qualification, albeit in  dictum, that:  "punitive damages may not be awarded against  the District of Columbia."  Finkelstein v. District of Columbia, 593 A.2d 591, 599 (D.C. 1991) (en banc) (citing Smith, 336  A.2d at 832).  The following year, the court again rejected a  claim for punitive damages against the District, citing Fact  Concerts as "reaffirming [the] common law principle that  municipalities [are] immune from punitive damages."  Ramos  v. District of Columbia Dep't of Consumer and Regulatory  Affairs, 601 A.2d 1069, 1074 n.9 (D.C. 1992).


47
We need not go as far as the District urges to resolve this  case.  Even if the D.C. Court of Appeals would permit  punitive damages in some not-yet-presented category of "extraordinary" cases, we are unable to conclude that this case  would fit within that category.  That is not, in any way, to  minimize the offensiveness of the District's conduct here.But this is not a case that falls within the exception noted in  Fact Concerts, where a jurisdiction's taxpayers are directly  responsible for perpetrating the policies that caused the  plaintiff's injuries.  Nor is this a case where a municipality or  its policymakers have intentionally adopted the unconstitutional policy that caused the damages in question.10  Rather,  this is a case where the charge against the District is "deliberate indifference," and the D.C. Court of Appeals has given  no hint that it would permit an award of punitive damages in  such a case--if it would permit such an award at all.  Because  our role in deciding a pendent District of Columbia claim is  only to ascertain what District law is, "not what it ought to  be," Women Prisoners, 93 F.3d at 922 (quoting Klaxon Co. v.  Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)), we are  unable to do for Daskalea what the D.C. Court of Appeals has  never done for any plaintiff.

V

48
The other named defendant in this case, Margaret Moore,  served at all relevant times as the Director of the D.C.  Department of Corrections.  The jury returned a general verdict finding "defendants" liable on all counts.  Moore and  the District contend that Moore was sued solely in her official  capacity, and hence cannot be held personally liable for the  damages award.  Daskalea contends that she sued Moore in  her individual (personal) capacity, and that Moore therefore is  liable not only for the $350,000 in compensatory damages, but  also--because she is not an immune municipality--for $5  million in punitive damages.  See generally Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (holding that a government  official may be held personally liable only if sued in an  individual rather than official capacity);  Atchinson v. District  of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (same);  Eskridge v. Jackson, 401 A.2d 986, 989 n.7 (D.C. 1979) (same  under D.C. law);  Keith v. Washington, 401 A.2d 468, 470-71  (D.C. 1979) (same).  The magistrate judge agreed with Daskalea and held Moore personally liable for the entire amount  of both awards.


49
Neither the complaint nor any other pleading filed by  plaintiff indicates whether Moore was charged in her official  or her individual capacity.  In some circuits, that would be  the end of the matter, as they require a plaintiff who seeks  personal liability to plead specifically that the suit is brought  against the defendant in her individual capacity.11  Although  it has not definitively resolved the issue, see Hafer v. Melo,  502 U.S. 21, 24 n.* (1991), the Supreme Court has typically  looked instead to the "course of proceedings" to determine  the nature of an action.  See Graham, 473 U.S. at 167 n.14;Brandon v. Holt, 469 U.S. 464, 469 (1985).  Following the  Supreme Court's lead, this circuit has joined those of its  sisters that employ the "course of proceedings" approach. See Atchinson, 73 F.3d at 425.12  Like the Supreme Court, however, we remind litigants that "it is obviously preferable  for the plaintiff to be specific in the first instance to avoid any  ambiguity."  Hafer, 502 U.S. at 24 (internal quotation  omitted).


50
We conclude that the course of proceedings in this case  neither put Moore on notice that she was being sued in her  individual capacity, nor evidenced her understanding that her  personal liability was at stake.  As noted, the complaint itself  did not give her such a warning, stating only that "Defendant  Moore is the Director of the D.C. Department of Corrections  and is responsible for the overall operation of that Department and each institution of which it is comprised, including  the D.C. Jail."  Nor did the complaint seek to hold the  defendants jointly and severally liable, a formulation that  might have given some indication of an intention to sue Moore  in her personal capacity.  See Atchinson, 73 F.3d at 425.Indeed, at several points the complaint refers to "defendant's  failure" in the possessive singular, suggesting that plaintiff  viewed Moore and the District as interchangeable.  See  Compl. p p 21, 23, 25, 27.


51
Daskalea contends that the fact that Moore was named at  all indicates an intention to hold her personally liable, because  naming Moore would have added nothing to the available  damages if she had been named only in her official capacity. Although the latter point is true, it does not prove the former. Complaints often include surplusage.  Indeed, it is not uncommon for civil rights complaints to name both the municipality and an officer charged in his or her official capacity. On occasion this may be due to a misunderstanding of the law  of section 1983, but it also may be done in an effort to "personalize" the otherwise faceless municipal entity being  sued.13


52
Once the complaint was filed, attorneys for the District  repeatedly expressed their understanding that Moore had  been sued solely in her official capacity.  District counsel  expressed that understanding in their answer to the complaint.  See J.A. at 511 (stating that Moore had been "sued solely in her official capacity").  They did so again in their  trial brief, specifically noting that because plaintiff "has sued  only the District and the Director of the Department of  Corrections in her official capacity, plaintiff's claim is governed by the standards set forth in Monell."  J.A. at 43.  And  they did so yet again, with great clarity, on four occasions  during the trial.14  Not once, prior to rebuttal argument, did  Daskalea's attorney dispute opposing counsel's characterization of the nature of the case.  To the contrary, plaintiff's own  trial brief, which addressed only one claim, mentioned only a  single defendant--the District of Columbia.  See Pl. Trial Br.  at 1 (Jan. 12, 1998).


53
Moreover, both Moore and her counsel plainly acted on the  understanding that she had been sued solely in an official  capacity.  Moore did not hire separate counsel, but relied instead upon the District of Columbia Office of Corporation  Counsel, which represented the District in the case.  Although joint representation would not necessarily have been  unusual even if Moore had been sued individually, it would  have raised potential conflicts that would have had to have  been addressed.  See Atchinson, 73 F.3d at 427 ("[N]aming  the officials in their individual capacities ... may make  continued joint representation problematic, if not impossible. A municipality and officials named individually may have  mutually exclusive defenses.").


54
Corporation Counsel certainly defended the case as if  Moore had nothing personally at risk.  A government official  sued under section 1983 has available to her the defense of  qualified immunity, a defense unavailable in an official capacity suit.  See Graham, 473 U.S. at 166-167;  Atchinson,  73 F.3d at 425.  Corporation Counsel did not offer that  defense on Moore's behalf, notwithstanding that it surely  would have been at least colorable had she been sued individually.  Nor did Corporation Counsel (or plaintiff's counsel, for  that matter) seek to introduce evidence of Moore's personal  finances, despite the fact that punitive damages awards are  supposed to be based on a defendant's "personal financial  resources."  Fact Concerts, 453 U.S. at 269;  see also Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 940 (D.C. 1995).Other than assuming complete incompetence (as well as gross  malpractice) on the part of Moore's attorneys, the only explanation for these lapses must have been their perception that  Moore had been sued in her official capacity alone.


55
As against all of this, Daskalea draws our attention to a  pretrial deposition at which counsel focused on the specifics of  Moore's involvement, as well as to a pretrial conference at  which her lawyer told lawyers for the District that "we're  coming dead at your directors," and that "your Director was  negligent."  These events did not, however, serve to put  Director Moore on notice that plaintiff was seeking to hold  her individually liable:  Moore's personal involvement, even  her personal negligence, was equally relevant to proving the  District's own deliberate indifference and negligent supervision.


56
Finally, Daskalea calls our attention to her counsel's closing  rebuttal argument, during which he told the jury:  "Margaret  Moore is an actor here.  Margaret Moore is responsible for  this.  Margaret Moore isn't some figurehead...."  Even if  this were enough to make Moore's personal stake clear, it was  simply too late to do so in a rebuttal argument--the last piece  of advocacy prior to the jury's deliberations.  By that time it  was too late for Moore to hire separate counsel, to proffer a  defense of qualified immunity, or to introduce evidence that  her personal assets did not approach $5 million.  Indeed, by  that time it was too late for Moore's counsel to respond in any  way at all.  Such notice can hardly be characterized as fair. See Atchinson, 73 F.3d at 427-28 (affirming denial, due to  concern for prejudice, of plaintiff's motion to amend complaint  to name official in individual capacity shortly before trial).Accordingly, we reverse the award of damages against Moore  in her individual capacity.

VI

57
Sexual assault, forced naked dancing, and the other indignities borne by Sunday Daskalea at the District of Columbia  Jail are "simply not part of the penalty that criminal offenders pay for their offenses against society."  Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation omitted);  see  Women Prisoners, 93 F.3d at 929.  To the contrary, "when  the State takes a person into its custody and holds [her] there  against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety  and general well-being."  DeShaney v. Winnebago County  Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989).  Because  the evidence at trial established that the District of Columbia  wholly failed to live up to that responsibility, we affirm in full  the jury's award of $350,000 in compensatory damages.  At  the same time, however, District law requires us to reverse  the award of punitive damages, and plaintiff's failure to sue  co-defendant Moore in her individual capacity means that the  District alone is responsible for payment.



Notes:


1
  The District did not appeal the district court's finding of  liability.  See Women Prisoners, 93 F.3d at 928.  Although it did  appeal aspects of the court's remedial order, the District did not  challenge the requirement, discussed below, that it promulgate a  sexual harassment policy.  This court ultimately overturned portions of the remedy not relevant here and remanded for further  proceedings.  See id. at 931-32.


2
  This recitation of facts is taken from the testimony of plaintiff's witnesses, which stands largely unrebutted because the District did not offer any evidence of its own.  Even if that were not  the case, when reviewing a jury's verdict we must adopt the version  of the facts most favorable to the party prevailing below.  See  Kirkland v. District of Columbia, 70 F.3d 629, 635 (D.C. Cir. 1995).


3
  Although plaintiff's complaint also asserted violations of due  process and equal protection under the Fifth Amendment, only the  Eighth Amendment issue was submitted to the jury.


4
  See also Atchinson v. District of Columbia, 73 F.3d 418, 419  (D.C. Cir. 1996) (failure to train);  Parker v. District of Columbia,  850 F.2d 708, 712 (D.C. Cir. 1988) (same).


5
  The District also contends that proof of its adherence to the  harassment policy is demonstrated by the fact that employees were  disciplined for its violation.  But while there was some evidence  that discipline followed the July 20 incident, too late to be of any  comfort to Daskalea, the only person identified as having been  terminated was Brenda Makins--the author of the investigative  report that found serious wrongdoing at the Jail--allegedly because  she had lied about her home address.


6
  The District contends that a new trial should also be granted  because the magistrate judge wrongly denied it an opportunity to  cross-examine Daskalea as to whether some of the stress she  suffered was actually caused by her alleged post-release activities  as an informant.  We review such a claim only for abuse of  discretion.  See United States v. White, 116 F.3d 903, 919 (D.C. Cir.  1997).  The magistrate found the District's proposed cross-examination to be both irrelevant and prejudicial, and we perceive  no error.


7
  See Finkelstein v. District of Columbia, 593 A.2d 591, 594  (D.C. 1991);  District of Columbia v. Mitchell, 533 A.2d 629, 639  (D.C. 1987);  Hughes v. District of Columbia, 425 A.2d 1299, 1302  (D.C. 1981).


8
  For the same reason, we need not address Daskalea's common law claim of intentional infliction of emotional distress, which  involves the same predicate acts and produces no difference in the  damages award.


9
  Fact Concerts cited both Smith and Fisher as examples of  "[j]udicial disinclination to award punitive damages against a municipality."  453 U.S. at 260 & n.21.


10
  Cf. Kolstad v. American Dental Ass'n, 119 S.Ct. 2118, 212526 (1999) (noting that "[t]he justification of exemplary damages lies  in the evil intent of the defendant") (internal quotation omitted);Rieser v. District of Columbia, 563 F.2d 462, 481-82 (D.C. Cir.  1977) (declining to find "extraordinary circumstances" justifying  punitive damages against District, notwithstanding parole officers'  breach of duty leading to murder of plaintiff's daughter), vacated  then reinstated in relevant part by en banc court, 580 F.2d 647  (D.C. Cir. 1978).


11
  See Soper ex rel. Soper v. Hoben, 195 F.3d 845, 853 (6th Cir.  1999) ("Generally, plaintiffs must designate in which capacity they  are suing defendants;  if not, by operation of law, defendants are  deemed sued in their official capacities.");  see also Hafer v. Melo,  502 U.S. 21, 24 n.* (1991) (citing Wells v. Brown, 891 F.2d 591, 592  (6th Cir. 1989);  Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989)).


12
  See Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (examining "the nature of the plaintiff's claims, the relief sought, and the  course of proceedings");  Jackson v. Georgia Dep't of Transp., 16  F.3d 1573, 1575 (11th Cir. 1994);  Frank v. Relin, 1 F.3d 1317, 1326  (2d Cir. 1993);  see also Hafer, 502 U.S. at 24 n.* (citing Houston v.  Reich, 932 F.2d 883, 885 (10th Cir. 1991);  Melo v. Hafer, 912 F.2d  628, 635-36 (3rd Cir. 1990);  Conner v. Reinhard, 847 F.2d 384, 394  n.8 (7th Cir. 1988);  Lundgren v. McDaniel, 814 F.2d 600, 603-604  (11th Cir. 1987)).


13
  The fact that the complaint sought punitive damages did not  put Moore on notice that she was being sued in her individual  capacity.  Although we hold in Part IV that such damages are  unavailable against the District (or against Moore if sued in an  official capacity), Daskalea prosecuted the case on the understanding that punitive damages would be available against the District if  she succeeded on a negligent supervision theory.


14
  Those four occasions were:  (1) before jury selection, see Tr.  at 8-9 (Court:  "So it is only Margaret Moore?"  D.C. Counsel:  "In  her official capacity.");  (2) when Moore testified, see J.A. at 216  ("Ms. Moore is also named as a defendant in her official capacity.");(3) when moving for directed verdict at the close of plaintiff's  evidence, see J.A. at 359 ("Margaret Moore's sued solely in her  official capacity.");  and (4) in closing argument, see Trial Tr. at 902  ("She is sued in this case in official capacity, which means that she's  sued just because she's the head of the Department of Corrections.").


