                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


__________________________________
                                              )
KATINA COLBERT, et al.,                       )
                                              )
               Plaintiffs,                    )
                                              )
       v.                                     )       Civil Action No. 13-531 (RMC)
                                              )
DISTRICT OF COLUMBIA, et al.,                 )
                                              )
            Defendants.                       )
_________________________________             )


                                            OPINION

               Katina Colbert (KC) is an intellectually disabled woman who is unable to care for

herself. While living in a group home managed by Total Care Services, Inc., a contractor for the

District of Columbia, KC became pregnant and gave birth to a baby girl with severe medical

problems. The infant, TC, spent most of her short life in the hospital and died when she was just

over a year old. KC’s mother, Jacqueline Colbert, sues the District and its contractor, alleging

constitutional violations and various torts. The District moves to dismiss or for summary

judgment. As explained below, the motion will be granted in part and denied in part, without

prejudice.

                                            I. FACTS

               Jacqueline Colbert, mother of KC and grandmother of TC, brought this suit

individually, as next friend of KC, and as personal representative of the Estate of TC against

Total Care Services, Inc. (Total Care) and the District of Columbia (collectively, Defendants).

Ms. Colbert alleges that in the fall of 2008 at the direction and request of the District, KC was

hospitalized and underwent a psychological assessment, which revealed that KC needed care and

                                                  1
supervision twenty-four hours a day, seven days a week. Compl. [Dkt. 1] ¶¶ 7-8. As a result,

KC began residing in a group home operated by Total Care, under contract with the District.

               Ms. Colbert alleges that despite the fact that the Defendants knew of KC’s “prior

history of sexual abuse, neglect, her medical conditions, her intellectual disabilities, the

medications she was taking, her medical and psychological status, her lack of ability to

consistently take her medication, her fertility as well as her past and current sexual activity,” id.

¶ 9, they failed to provide appropriate supervision and care to protect KC from foreseeable harm,

id. ¶¶ 11-12. Defendants allegedly “allowed . . . and encouraged [KC] to have unprotected,

nonconsensual sexual intercourse with various men for extended periods in 2010,” id. ¶ 10,

including but not limited to “other residents of the facility and men she was meeting on a one

time/casual basis,” id. ¶ 22(c). KC became pregnant and prematurely delivered TC, a baby girl,

on April 3, 2011. Id. ¶ 10. KC was provided little or no prenatal care. Id. ¶ 13.

               Because KC was unable to care for her child, Ms. Colbert was awarded sole

physical custody of TC. Id. ¶ 15. TC was born with significant health problems requiring

multiple surgeries and necessitating extended hospitalization; she died from medical

complications on April 18, 2012, at the age of 12 months and 9 days. Id. ¶¶ 10, 14, 17. It is

unclear where KC currently lives. Compare Compl. ¶ 6 (“Total Care Services is a licensed

provider of services to mentally retarded adults for [the District of Columbia], including a range

of services provided to Colbert from 2008 through the present.”) with id. ¶ 3 (“Colbert is

intellectually disabled and is under the care and supervision of the District of Columbia at a

facility operated by Innovative Life Solutions.”)

               The Complaint contains twelve Counts, asserted against both Defendants, unless

otherwise noted:



                                                  2
               Count I––Negligence;

               Count II––Negligent Hiring and Retention (against Total Care);

               Count III––Wrongful Birth;

               Count IV––Breach of Fiduciary Duty arising from special
               relationship;

               Count V––Negligence Per Se Due to Violation of D.C. Code § 44-
               504(a)(3) and (4) (against Total Care);

               Count VI––Violation of the Fifth Amendment pursuant to 42
               U.S.C. § 1983 (against the District);

               Count VII––Violation of D.C. Code §§ 7-1301.02 et seq. and 7-
               1305.14;

               Count VIII––Violation of D.C. Code §§ 7-1301.02 et seq. and 7-
               1305.13 (against the District);

               Count IX––Negligent Infliction of Emotional Distress;

               Count X––Intentional Infliction of Emotional Distress;

               Count XI––Punitive Damages;

               Count XII––Wrongful Death; and

               Count XIII––Survival Act. 1

Id. ¶¶ 18-93. Total Care filed an Answer to the Complaint, but the District of Columbia filed a

motion to dismiss or for summary judgment. See Mot. to Dismiss or for Summ. J. [Dkt. 9]

(Mot.); Reply [Dkt. 15]. Ms. Colbert opposes. See Opp’n [Dkt. 12].




1
 The Survival Act claim is erroneously labeled Count XII in the Complaint, when it is really
Count XIII.

                                                3
                       II. LEGAL STANDARDS AND JURISDICTION

       A. Motion to Dismiss

               A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

challenges the adequacy of a complaint on its face, testing whether a plaintiff has stated properly

a claim. In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted).

               A complaint must “give a defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Although a complaint does not need detailed factual allegations, it must

include “more than labels and conclusions” and the facts alleged “must be enough to raise a right

to relief above the speculative level.” Id. “[A] complaint needs some information about the

circumstances giving rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc.,

525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original). To survive a motion to dismiss, a

complaint must contain sufficient factual matter to state a claim for relief that is “plausible on its

face.” Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must treat the complaint’s factual

allegations as true, “even if doubtful in fact,” Twombly, 550 U.S. at 555, but a court need not

accept as true legal conclusions set forth in a complaint, Iqbal, 556 U.S. at 678. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.



                                                  4
               B. Motion for Summary Judgment

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

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); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . fails to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

               In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the

nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249-50 (citations omitted).

       C. Jurisdiction

               The Court has federal question jurisdiction under 28 U.S.C. § 1331 because Count

VI alleges a violation of K.C.’s rights under the Fifth Amendment of the U.S. Constitution,2



2
  The Fifth Amendment provides in pertinent part that no person “shall be deprived of life,
liberty, or property, without due process of law,” see U.S. Const. amend. V, and the Fourteenth
Amendment similarly provides that “no State shall . . . deprive any person of life, liberty, or
                                                  5
pursuant to 42 U.S.C. § 1983. See Compl. ¶ 1. All other Counts assert violations of D.C. law.

In its discretion, a federal court may exercise supplemental jurisdiction over local law claims

joined with federal claims. See 28 U.S.C. § 1367(c).

               The Complaint also alleges diversity jurisdiction, presumably because Jacqueline

Colbert is a resident of Maryland and Total Care is a resident of Washington, D.C. See Compl.

¶¶ 1, 4-6. Diversity jurisdiction applies to suits between citizens of different states where the

amount in controversy exceeds the sum of $75,000. See 28 U.S.C. § 1332(a). However,

diversity jurisdiction does not apply to the District of Columbia; like a State, the District is not a

“citizen” of itself and therefore cannot be a “citizen” of a State different from Maryland.

Barwood, Inc. v. District of Columbia, 202 F.3d 290, 292 (D.C. Cir. 2000); Long v. District of

Columbia, 820 F.2d 409, 413-14 (D.C. Cir. 1987). In addition, “diversity jurisdiction is lacking

if there are any litigants from the same state on opposing sides.” Prakash v. American Univ.,

727 F.2d 1174, 1178 n.25 (D.C. Cir. 1984).

               Diversity is absent in the present case. Jacqueline Colbert sues on her own behalf

and as “next friend” of KC, her daughter who resides in the District of Columbia. See Compl.

¶ 3. The legal representative of “an infant or incompetent shall be deemed to be a citizen only of

the same State as the infant or incompetent.” 28 U.S.C. § 1332(c)(2). That is, in her capacity as




property, without due process of law,” see U.S. Const. amend. XIV. Because the District of
Columbia is a federal enclave, it is subject to the Fifth Amendment and not the Fourteenth,
which applies to the States. 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)). The ultimate legal analysis is the
same, however, and cases analyzing States’ liability under the Due Process clause of the
Fourteenth Amendment can be relied upon to analyze the District’s liability under the Due
Process clause of the Fifth Amendment. See Piechowicz v. United States, 885 F.2d 1207, 1214
n.9 (4th Cir. 1989).

                                                   6
next friend of KC, Jacqueline Colbert is deemed to be a citizen of the District. Since Total Care

also is a resident of the District, there is no diversity of citizenship in this matter. 3

                                            III. ANALYSIS

                The District of Columbia moves to dismiss, or for summary judgment, with

regard to the alleged violation of KC’s Fifth Amendment rights to due process and equal

protection. The District contends that the Complaint fails to state a due process claim because

(1) the Complaint does not allege that KC was in involuntary custody; (2) KC was voluntarily

committed to the custody of the District and thus the District did not have a constitutional duty to

protect her from harm caused by third persons; and (3) the Complaint fails to allege facts

sufficient to show that a D.C. custom or policy was a driving force behind KC’s alleged

constitutional injury. With regard to the Complaint’s equal protection claim, the District asserts

that the Complaint fails to allege any facts to support such a claim. Ms. Colbert opposes.

        A. Count VI ––Fifth Amendment Substantive Due Process Claim

                Count VI of the Complaint alleges that the District is liable for violating KC’s

substantive due process rights:

                50. At all times relevant hereto, Plaintiff Katina Colbert was a
                ward of the District of Columbia and was completely dependent on
                the District of Columbia for her care, protection, and well-being.

                51. From September 2008 until and including the present, the
                District of Columbia provided [KC] with an environment which
                was unsafe and inadequate to meet her basic needs. This
                environment included untrained staff who failed to follow
                established procedures by not supervising [KC] to the point where
                she was impregnated without her consent.



3
  Ms. Colbert also sues as the personal representative of the Estate of TC. Section 1332(c)(2),
Title 28, provides that a legal representative of an estate is deemed to be a citizen of the same
state as the decedent. The Complaint does not indicate where TC was domiciled.

                                                     7
               52. The District of Columbia, through its contractual relationship
               with Defendant Total Care, knew or should have known about the
               substandard quality of care given to Plaintiff Colbert by the Total
               Care defendants.

Compl. ¶¶ 50-53. Count VI further alleges that the District violated the Fifth Amendment

through its deliberate indifference to KC’s need for supervision, birth control, and medical care,

by placing her in an unsafe environment where there was a high risk of unprotected sexual

activity and unwanted pregnancy. Id. ¶¶ 58-60.

               Ms. Colbert brings her Fifth Amendment claims pursuant to 42 U.S.C. § 1983,

which provides:

               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.

Constitutional claims against municipalities under § 1983 are subject to a two-factor analysis.

See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Collins v. City

of Harker Heights, 503 U.S. 115, 120 (1992)). A court must find that the plaintiff suffered “a

predicate constitutional violation,” id. (citation omitted), and that “a custom or policy of the

municipality caused the violation,” id.; see also Monell v. Dep’t of Social Servs., 436 U.S. 658,

694 (1978) (“[I]t is when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983.”).

               First, the Court must “identify the exact contours of the underlying right said to

have been violated” and determine “whether the plaintiff has alleged a deprivation of a

constitutional right at all.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Here,

                                                  8
Ms. Colbert asserts a substantive due process violation of KC’s Fifth Amendment liberty

interest.

                 A citizen’s liberty interest, protected by due process, includes a right to be free of

damage to bodily integrity and security caused by the State. 4 See Youngberg v. Romeo, 457 U.S.

307, 316 (1982); Doe v. Taylor Indep. Sch. Dist., 15 F.3d, 443, 451 (5th Cir. 1994) (en banc). In

contrast, a State’s “failure to protect an individual from private violence, even in the face of

known danger, does not constitute a violation of the Due Process Clause.” Butera v. District of

Columbia, 235 F.3d 637, 647 (D.C. Cir. 2001) (emphasis added) (citing DeShaney v. Winnebago

County Social Servs. Dep’t, 489 U.S. 189, 197 (1989). That is, a State has a general

constitutional duty to protect individuals from harm caused by State actors, but it does not have a

general constitutional duty to protect individuals from harm caused by private actors. This is

because the Due Process Clause limits State power; it is not a guarantee of safety and security.

DeShaney, 489 U.S. at 195. “[T]he Constitution does not guarantee due care on the part of state

officials; liability for negligently inflicted harm is categorically beneath the threshold of

constitutional due process.” County of Sacramento, 523 U.S. at 849 (emphasis added).

                 A State, however, does have an affirmative duty to protect an individual from

harm caused by third parties in two circumstances: (1) when government creates a “special

relationship” by taking an individual into custody or (2) when government affirmatively

endangers the individual. DeShaney, 489 U.S. at 199-201; Butera, 235 F.3d at 647-651.

                 1. “Special Relationship” Requires Involuntary Custody

                  Ms. Colbert insists that the District established a “special relationship” with KC

because: she is intellectually disabled, see Compl. ¶ 3; she needs supervision twenty-four hours a


4
    The Court uses the word “State” to indicate the District of Columbia as well as the 50 States.

                                                   9
day seven days a week, id. ¶ 8; she lives under the care and supervision of the District through

the District’s contractor Total Care, id. ¶¶ 5-6; and she is a “ward” of the District, completely

dependent on it for her care, protection, and well-being, id. ¶ 50. The District seeks dismissal or

judgment in its favor, arguing that the Complaint fails to allege that the District took KC into its

custody involuntarily and, thus, it had not established a “special relationship” as defined in this

context. The District argues that since KC was voluntarily committed to its care, the District had

no Fifth Amendment duty to protect KC from privately-caused harm.

                 The parties agree that, under Supreme Court law, a State assumes a constitutional

duty to protect an individual from harm from third parties when the State has created a “special

relationship” by taking the individual into custody. They debate whether such custody must be

“involuntary.”

                 The Supreme Court has held that the constitutional duty of care arises in cases

involving involuntary custody. In Youngberg v. Romeo, 457 U.S. 307 (1982), the mother of a

mentally disabled man asserted his constitutional right to safe conditions of confinement and to

be free from bodily restraint. The Supreme Court held that the State has a duty to provide

“conditions of reasonable care and safety” to a person who is involuntarily committed to a state

mental hospital. Youngberg, 457 U.S. at 324; accord Estelle, 429 U.S. at 103-04 (State has a

duty to provide prisoner with medical care because prisoner was deprived of his liberty and was

unable to obtain care for himself).

                 Youngberg and Estelle dealt with an involuntarily committed mental patient and

an incarcerated prisoner, respectively. These cases do not apply when addressing whether the

State has a duty to protect an individual who is not in State custody. DeShaney, 489 U.S. at 201.

The Supreme Court addressed the question of whether a State had a constitutional duty of care to



                                                 10
a person not in custody in DeShaney v. Winnebago County Social Services. There, the issue was

whether a State had a duty of care to protect a child from third party harm, where the child was

not in State custody. The Supreme Court determined that a child who was severely beaten by his

father when in his father’s custody did not have a due process claim against a State social service

agency––even though agency personnel had reason to know of the physical abuse and failed to

remove the child from his father’s custody. Id. at 202-03.

               The DeShaney Court first explained that a State’s duty of care under tort law is

broader than a State’s narrow duty of care under the Constitution:

               It may well be that, by voluntarily undertaking to protect [the
               child] against a danger it concededly played no part in creating, the
               State acquired a duty under state tort law to provide him with
               adequate protection against that danger. But the claim here is
               based on the Due Process Clause of the Fourteenth Amendment,
               which, as we have said many times, does not transform every tort
               committed by a state actor into a constitutional violation.

Id. at 201-02 (citations omitted). The DeShaney Court further explained that whether the State

had a constitutional duty of care hinges on whether the victim was in State custody:

          [W]hen the State by the affirmative exercise of its power so restrains an
          individual’s liberty that it renders him unable to care for himself, and at
          the same time fails to provide for his basic human needs––e.g., food,
          clothing, shelter, medical care, and reasonable safety––it transgresses the
          substantive limits on state action set by the Eighth Amendment and the
          Due Process Clause. The affirmative duty to protect arises not from the
          State’s knowledge of the individual’s predicament or from its
          expressions of intent to help him, but from the limitation which it has
          imposed on his freedom to act on his own behalf. In the substantive due
          process analysis, it is the State’s affirmative act of restraining the
          individual’s freedom to act on his own behalf––through incarceration,
          institutionalization, or other similar restraint of personal liberty––which
          is the “deprivation of liberty” triggering the protections of the Due
          Process Clause, not its failure to act to protect his liberty interest against
          harms inflicted by other means.

DeShaney, 489 U.S. at 200 (citations omitted). Critically, the Supreme Court found that a

special relationship is created when a State “takes a person into its custody and holds him there
                                                 11
against his will.” Id. at 199-200 (emphasis added). Such deprivation of liberty gives rise to a

State duty to “assume some responsibility for [the person’s] safety and general well-being”

because it has “render[ed] him unable to care for himself.” Id. at 200.

               While the Supreme Court did not address the question of what type of State

custody gives rise to a constitutional duty of care, the majority of the Circuits that have

addressed the question have found that only involuntary custody triggers a constitutional duty of

care to protect from harm caused by third persons, relying on the language in the DeShaney

decision that a special relationship arises only when a State “takes a person into its custody and

holds him there against his will,” id. at 199-200, “through incarceration, institutionalization, or

other similar restraint of personal liberty,” id. at 200. The First, Second, Third, Fifth, and Ninth

Circuits have held that only involuntary commitment to State custody gives rise to a “special

relationship” and thus a constitutional duty of care, whereas voluntary commitment does not.

See Monahan v. Dorchester Counseling Center, 961 F.2d 987 (1st Cir. 1992); Brooks v. Guiliani,

84 F.3d 1454 (2d Cir. 1996); Torisky v. Schweiker, 446 F.3d 438 (3d Cir. 2006); Walton v.

Alexander, 44 F.3d 1297 (5th Cir. 1995) (en banc); Campbell v. State of Washington Dep’t of

Social & Health Servs., 671 F.3d 837 (9th Cir. 2011). These Circuits agree that “the involuntary

nature of the commitment [is] determinative.” Brooks v. Guiliani, 84 F.3d at 1466. There are no

cases directly on point in the D.C. Circuit.

               In Campbell, a developmentally delayed adult, Justine Booth, was found

unconscious in a bathtub while she was in the care of the State of Washington’s State Operated

Living Alternative (SOLA) program; Ms. Booth died a week later. 671 F.3d at 839. Her mother,

Ms. Campbell, sued, asserting that the State deprived Ms. Booth of her due process right to safe

physical conditions while she was in State custody. Ms. Booth was a cognitively disabled adult



                                                 12
with an IQ of fifty-nine; she had been diagnosed with a severe seizure disorder. Id. When she

was eighteen, she and her mother requested that she be placed in the SOLA program so that she

could live a “somewhat independent” life; thereafter, Ms. Booth moved into a SOLA-operated

home with two other developmentally-disabled roommates. Id. at 844. Ms. Booth could

withdraw from the SOLA program at any time. Id. Even so, Ms. Campbell argued that her

daughter’s commitment to State custody in fact was involuntary because: (1) SOLA placed locks

on the doors of the home, preventing residents’ ability to leave; (2) the State controlled the home

where Ms. Booth lived; (3) the State controlled Ms. Booth’s transportation, diet, and wardrobe;

and (4) the State controlled how and when Ms. Booth bathed. Id. at 843.

               The Ninth Circuit held that the State of Washington had no constitutional duty of

care toward Ms. Booth because her participation in SOLA was voluntary. 671 F.3d at 843-845.

The Circuit found that the restraints on liberty cited by her mother were merely part of SOLA’s

efforts to ensure Ms. Booth’s safety and that the State’s “performance of the very acts for which

an individual voluntarily enters [S]tate care does not transform the custodial relationship into an

involuntary one.” Id. at 844. The Campbell court also rejected the argument that Ms. Booth’s

limited mental abilities rendered her under the control of the State, i.e. that “[d]ue to her

cognitive impairments she could not leave the SOLA home without permission from her

caregivers.” Id. Ms. Booth’s intellectual limitations were “not the product of state action; they

were limitations she brought with her into custody” and there was no evidence that SOLA

employees took actions that caused her mental capacity to worsen. Id. The Circuit concluded

that Ms. Booth and her mother had requested placement in the SOLA program and could

withdraw that request at any time, rendering the State’s custody of Ms. Booth a “far cry” from




                                                  13
“institutionalization or other similar restraint of personal liberty” sufficient to show that the she

was held “against [her] will.” Id. (citing DeShaney, 489 U.S. at 199-201).

                Similarly, in Walton, the Fifth Circuit held that a State school for the deaf had no

constitutional duty to protect a hearing-impaired student from sexual assault by another student.

The plaintiff argued that the State had created a special relationship with the student who resided

at the school because the school severely restricted the conditions under which he could leave,

and controlled his schedule of duties, classes, and daily activities. The Fifth Circuit found that

the student “attended the school through his own free will (or that of his parents) without any

coercion by the state,” that he had the “option of leaving at will,” and that “[a]lthough [his]

freedom was curtailed, it was he who voluntarily subjected himself to the rules and supervision

of school officials.” 44 F.3d at 1305; accord Stevens v. Umsted, 921 F. Supp. 530, 537 (C.D. Ill.

1996) (when a visually-impaired, developmentally-disabled student voluntarily attended a state-

run school, the State did not have a constitutional duty to protect him from sexual assault by a

fellow student).

               The First Circuit reached the same conclusion in Monahan v. Dorchester. While

being transported from a mental health center to a group home, Mr. Monahan leapt out a van and

was hit by a car. He sued the Commonwealth of Massachusetts, claiming that his injury was

caused by the State’s failure to provide adequate psychiatric treatment and supervision in

violation of his right to substantive due process. The First Circuit held that the State did not have

a constitutional duty of care to protect Mr. Monahan from third-party harm since he had been

voluntarily, not involuntarily, committed to its care. Because Massachusetts did not restrain Mr.

Monahan “against his will,” the Constitution did not impose any responsibility on the State for




                                                  14
his safety and well-being vis-à-vis third parties. 961 F.2d at 992 (quoting DeShaney, 489 U.S. at

199-200). The First Circuit explained:

               To be sure, Monahan’s mental condition may have made him
               functionally dependent on his caretakers, but no more so than is
               true of many other noncommitted ill persons in a hospital or
               outpatient setting. His helplessness was not attributable to the
               state’s having taken him into custody involuntarily. . . . Here,
               where it was Monahan’s own mental condition alone that impinged
               upon his freedom to leave, it was not the state that deprived him of
               that freedom.

Id. The Third Circuit similarly held in Torisky v. Schweiker, 446 F.3d 438, that the State did not

owe a constitutional duty of care to a mental health patient in state custody when the patient was

free to leave. “[W]hen a patient provides valid consent to enter a state mental treatment facility,

there is no deprivation of liberty at all.” Torisky, 446 F.3d at 446.

               While the D.C. Circuit has not analyzed whether voluntary custody can give rise

to a constitutional duty of care, it has addressed the circumstances under which a “special

relationship” can arise. In Butera, a mother sued the District of Columbia and members of the

Metropolitan Police Department alleging that her son’s due process rights were violated when he

was beaten to death while working as an undercover operative for the police department. Butera,

235 F.3d at 641. Relying on Harris v. District of Columbia, 932 F.2d 10, 13-15 (D.C. Cir.

1991), to find that “custody,” for the purpose of determining whether a special relationship has

been created, is “narrowly construed,” Butera held that the District did not have a constitutional

duty of care and was not liable for a violating the victim’s due process rights under § 1983.

Butera, 235 F.3d at 648; compare Smith v. District of Columbia, 413 F.3d 86, 95 (D.C. Cir.

2005) (holding that the District of Columbia had a constitutional duty of care to an adjudicated

delinquent youth who was committed to the District’s custody involuntarily and noting that

“formal indicia” of commitment were relevant to whether a “special relationship” existed).


                                                 15
               Harris exemplifies this Circuit’s narrow reading of “custody.” The suit was

brought after Mr. Harris’s death caused by a drug overdose while the decedent was in police

“custody.” Mr. Harris was at a nightclub when he began sweating profusely, rolling on the floor,

and screaming that he did not want to die. Harris, 235 F.2d at 11. Believing that Mr. Harris was

overdosing on phencyclidine (PCP), an employee of the club flagged down police officers. The

officers tried to speak to Mr. Harris, but he was nonresponsive and continued to flail violently

and to rant and rave. Id. To ensure Mr. Harris’s safety, the officers placed him in handcuffs and

leg restraints and locked him in a police van while they completed the paperwork necessary to

take Mr. Harris to a psychiatric hospital. Id. When an officer checked on Mr. Harris, he tried to

escape and they struggled, bumping Mr. Harris’s head in the process. Id. at 12. When an officer

next checked, Mr. Harris had stopped breathing so the officers took him to a hospital emergency

room instead of the psychiatric hospital. Mr. Harris was pronounced dead shortly after he

arrived at the emergency room. Id.

               Mr. Harris’s estate brought suit against the officers, but the D.C. Circuit held that

they were protected by qualified immunity because there was no clearly established

constitutional duty to obtain earlier medical assistance for Mr. Harris. As support for this

conclusion, the Circuit found that: “Harris had not been formally committed, either by

conviction, involuntary commitment, or arrest, to the charge of the District” and thus “the

government had not entered into a special relationship with Harris.” Id. at 14. That is, Harris

was not in involuntary custody––despite the fact that the officers had placed him in handcuffs

and leg restraints and held him in the back of a police van. Id. at 11. 5


5
  But see Ringuette v. City of Fall River, 888 F. Supp. 258, 268 (D. Mass. 1995) (State had a
constitutional duty to protect persons who are taken into protective custody because of
incapacitation and who lack the capacity to give knowing, intelligent and voluntary consent).

                                                 16
               While it might be argued that Mr. Harris was under “arrest,” this Circuit relied on

an earlier point in the chain of events leading to Mr. Harris’ handcuffs-and-locked-in-van

circumstance: “[T]he special relationship here, if any, . . . had to be created by the very act of the

officers in picking up Harris in response to his pleas for help. Harris’ inability to take care of

himself, moreover, was not due to anything the officers did but was instead a direct result of his

ingestion of PCP.” Id. at 361. The Circuit rejected the assertion that the State assumes a

constitutional duty of care by making initial efforts to help someone who by reason of his own

actions is unable to help himself, thereby refusing to “constitutionalize” the tort law principle

that “although no one has an obligation to rescue a person in need, if they attempt a rescue they

assume a duty to perform it well, for in attempting the rescue they are reducing the chance that a

more skilled individual might come to the person’s aid.” Id. at 362.

               Some courts have rejected the proposition that DeShaney limited Youngberg to

involuntarily-committed persons. The Fourth Circuit, for example, rejected the claim that the

State had no constitutional duty of care to a suicidal individual taken into custody at his family’s

request. See Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990). Buffington involved

an individual who committed suicide while he was in police custody awaiting emergency

psychiatric treatment. The government argued that it had no constitutional duty of care under

DeShaney because the deceased had been taken into custody at his family’s request. Id. at 119.

The Fourth Circuit viewed this argument as focusing on the reason for taking an individual into

custody and found that the reason for custody is not relevant to deciding whether the government

had a constitutional duty of care. Id. The court determined that the State had an affirmative due

process duty to prevent the detainee from committing suicide. Id. at 119-120; accord Merideth

v. Grogan, 812 F. Supp. 1223 (N.D. Ga. 1992) (intoxicated suicidal individual who was jailed at



                                                  17
the request of his family was entitled to due process protection), aff’d, 985 F.2d 579 (11th Cir.

1993) (Table). The Seventh Circuit also has rejected the proposition that the State has a

constitutional duty of care only where custody is involuntary. See Camp v. Gregory, 67 F.3d

1286, 1296 (7th Cir. 1995) (just because a child was voluntarily placed in foster care did not

mean that that the State could never be liable for a subsequent deprivation of due process);

McMahon v. Tompkins County, Civil No. 95-1134, 1998 WL 187421, *3 (N.D.N.Y. Apr. 14,

1998) (voluntary placement in foster care triggers the same due process duty of care that

involuntary placement triggers).

               While puzzled by the finding in Harris that an incapacitated person, in handcuffs

and held in a police van, was not “involuntarily” in police custody, this Court is bound by D.C.

Circuit precedent. In light of Butera, which recently relied on Harris and its very narrow

construction of “custody,” this Court is bound to a narrow interpretation of “custody” for the

purpose of triggering a constitutional duty of care. Therefore, in line with the First, Second,

Third, Fifth, and Ninth Circuits and their interpretation of the Supreme Court’s decision in

DeShaney, this Court finds that only involuntary commitment triggers the District’s

constitutional duty of care to protect an individual from harm caused by non-state actors. The

facts alleged here––that KC was a “ward” of the District, that she was intellectually disabled,

unable to attend to her own daily needs, and encouraged to have nonconsensual sex with other

residents and men she met on a one time basis––do not assert that she was involuntarily

committed to District custody, giving rise to a constitutional to prevent harm to her from third

persons.

               The Court is mindful that whether KC’s confinement was voluntary or

involuntary is question of fact, not of formality. “[C]ommitments formally labeled as



                                                18
‘voluntary’ may arguably amount to de facto deprivations of liberty from their inception.”

Torisky, 446 F.3d at 446; see Harvey v. Mohammed, 841 F. Supp. 2d 164, 186-87 (D.D.C. 2012)

(describing D.C. statutory scheme governing commitment of mentally retarded adults). Further,

a commitment that was initially voluntary “may, over time, take on the character of an

involuntary one.” Torisky, 446 F.3d at 446; accord Shelton v. Arkansas Dep’t of Human Servs.,

677 F.3d 837, 840 (8th Cir. 2012) (a patient’s status at the time of admission is not necessarily

dispositive because it may change later from voluntary to involuntary).

               The threshold question in the present case is whether KC was committed to the

custody of the District voluntarily or involuntarily. 6 Ms. Colbert alleges that KC was a “ward”

but does not assert facts sufficient to show that KC was “involuntarily” committed to the custody

of the District. Count VI, alleging a constitutional violation under § 1983, will be dismissed

without prejudice.

               2. Endangerment Requires Affirmative Action

               Ms. Colbert also attempts to state a claim under the “State endangerment” theory

in her opposition brief. See Opp’n at 24-26. “[U]nder the State endangerment concept, an

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 ultimately results in the individual’s harm.” Butera, 235 F.3d at 651

(emphasis added). Here, Ms. Colbert alleges that the District failed to take action––that it failed


6
  If KC were involuntarily committed, the District of Columbia might be liable under § 1983, but
only if Ms. Colbert can establish that the District was so deliberately indifferent to KC’s
constitutional rights that it “shocks the conscience.” Butera, 235 F.3d at 651-52 (quoting County
of Sacramento, 523 U.S. at 847 n.8); accord Estate of Phillips v. District of Columbia, 455 F.3d
397, 403 (D.C. Cir. 2006). This “stringent requirement exists to differentiate substantive due
process, which is intended only to protect against arbitrary government action, from local tort
law.” Butera, 235 F.3d at 651.

                                                19
to supervise and failed to provide medical care––not that it took any affirmative action that

increased or created the danger that resulted in harm to KC. Because the Complaint fails to

allege any affirmative action by District officials, it fails to allege a claim pursuant to the “State

endangerment” theory.

        B. Equal Protection

                In addition to alleging that KC’s liberty interests were violated, Count VI also

attempts to allege that her Fifth Amendment right to equal protection was violated. To allege an

equal protection claim, a plaintiff must assert that the government intentionally treated her

differently from others who were similarly situated and that there is no rational basis for the

difference in treatment. 3883 Conn. LLC v. District of Columbia, 336 F.3d 1068, 1075 (D.C.

Cir. 2003) (citing Village of Willowbrook v. Olech, 529 U.S. 562, 564 (2000)). Gender-based

classifications give rise to heightened scrutiny, as a “classification relying explicitly upon gender

peculiarly suggests that the [S]tate is pursuing an improper purpose.” Pitts v. Thornburgh, 866

F.2d 1450, 1454 (D.C. Cir. 1989).

                The Complaint, however, makes no allegation that the District intentionally

treated KC different from similarly situated individuals or that it intentionally discriminated

against her based on her gender. The Complaint merely states the legal conclusion that KC’s

right to equal protection was violated:

                61. The actions and policies of the Defendant as described herein
                denied [KC] the equal protection of the law by infringing [KC’s]
                right to be free from harm and to have adequate health and
                habilitative care to protect her from dangerous, unprotected sexual
                activity and unwanted pregnancy.

                62. As a direct result of the actions and policies of Defendant as
                described herein, [KC] suffered a denial of her equal protection
                rights and an unconstitutional deprivation of liberty in violation of



                                                  20
               her rights under the Fifth Amendment to the United States
               Constitution.

Compl. ¶¶ 61-62. The Court is not required to accept as true legal conclusions set forth in the

Complaint, see Iqbal, 556 U.S. at 678, and “while legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.” Id. at 679.

               In response to the motion to dismiss, Ms. Colbert contends that “men in the care

of [the District and Total Care] were not allowed and encouraged to have sex with strangers, nor

coerced into having sex with staff” and that KC was. 7 Opp’n at 24. Ms. Colbert’s opposition

brief, however, does not cure the inadequacy of the Complaint because a complaint may not be

amended by filing an opposition to a motion to dismiss. Arbitraje Casa de Cambio, S.A. de C.V.

v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Thus, the equal protection claim

will be dismissed without prejudice.

       C. Procedural Due Process

               Ms. Colbert also attempts to make out a procedural due process claim under an

“entitlement theory” by alleging she was denied procedural due process rights provided by D.C.

Code § 7-1305.10(e) and (f). See Opp’n at 26-28. D.C. Code § 7-1305.10(e) and (f) provide:

               (e) Alleged instances of mistreatment, neglect or abuse of any
               individual shall be reported immediately to the Director and the
               Director shall inform the individual’s counsel, parent or guardian
               who petitioned for the commitment, and the individual’s advocate
               for a person with an intellectual disability of any such instances.
               There shall be a written report that the allegation has been
               thoroughly and promptly investigated (with the findings stated
               therein). Employees of facilities who report such instances of
               mistreatment, neglect, or abuse shall not be subjected to adverse
               action by the facility because of the report.

7
 The allegation in the Opposition brief extends further than the allegations of the Complaint.
The Complaint does not allege that KC had sex with staff at Total Care, and instead alleges that
she had sex with “other residents of the facility and men she was meeting on a one time/casual
basis.” Compl. ¶ 22.

                                                21
               (f) An individual’s counsel, parent or guardian who petitioned for
               commitment and an individual’s advocate for a person with an
               intellectual disability shall be notified in writing whenever
               restraints are used and whenever an instance of mistreatment,
               neglect or abuse occurs.

This procedural due process allegation is made in the Opposition to the District’s motion and not

in the Complaint. Again, a complaint may not be amended via an opposition to a motion to

dismiss, see Arbitraje, 297 F. Supp. 2d at 170, and no procedural due process claim will be

considered.

       D. Custom or Policy

               The District also moves to dismiss Count VI for failure to allege that a D.C.

custom or policy caused the alleged constitutional violation. To state a claim against the District

under 42 U.S.C. § 1983, a plaintiff must allege that a custom or policy of the District of

Columbia caused the constitutional violation. Feirson v. District of Columbia, 506 F.3d 1063,

1066 (D.C. Cir. 2007) (citing Monell, 436 U.S. at 694). Further, to state a claim for failure to

train or supervise, a plaintiff must allege “that the need for more or different training or

supervision was so obvious and the inadequacy so likely to result in a violation of constitutional

rights that the policymakers can be said to have been deliberately indifferent to the need,” with

facts to support the allegation. Rogala v. District of Columbia, 161 F.3d 44, 56 (D.C. Cir. 1998)

(citing City of Canton v. Harris, 489 U.S. 378, 388-89 (1989)). “Pleading a single instance of a

constitutional violation––that does not itself establish municipal policy––without connecting it to

an existing, unconstitutional policy is not sufficient to state a claim under § 1983.” Trimble v.

District of Columbia, 779 F. Supp. 2d 54, 58 (D.D.C. 2011).

               The Complaint sets forth only conclusory allegations that the alleged

constitutional violations were caused by a D.C. custom or policy. The Complaint alleges:


                                                  22
               53. At all times relevant hereto, it was the policy of the District of
               Columbia . . . to provide unsafe surroundings for persons in their
               care, without adequate supervision and medical care and to neglect
               to monitor those environments to ensure that appropriate medical
               and habilitative care was provided. This policy and procedure was
               intentional and/or deliberately indifferent to the Constitutional
               rights of [KC] and caused the injuries complained of herein.

               54. Upon information and belief, other individuals with policy
               making authority for the District of Columbia tacitly approved of
               or ratified the actions of lower ranking officials in allowing Colbert
               to reside in the conditions described herein. Such conduct by
               policymakers amounts to [an] unlawful policy or custom for which
               the District of Columbia is liable.

               55. Upon information and belief, it was the custom of the District
               of Columbia to improperly place intellectually disabled residents in
               unsafe environments such as that provided by the Total Care
               Defendants without adequate supervision and medical care as
               required by law.

Compl. ¶¶ 53-55. These threadbare recitals are insufficient to state a claim. See Iqbal, 556 U.S.

at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”)

               Ms. Colbert offers additional allegations in her responsive pleading. She asks the

Court to take judicial notice that the District of Columbia has been judicially found to be

deliberately indifferent to the needs of developmentally disabled persons in its care. She notes

Evans v. Williams, 139 F. Supp. 2d 79 (D.D.C. 2001), in which the district court approved a

settlement between D.C. and a class of disabled individuals to remedy the District’s failure to

provide adequately for their health, safety, and welfare. The class consisted of individuals who

resided at a facility called Forest Haven, since closed, as a result of an involuntary commitment.

See Harvey v. Mohammed, 841 F. Supp. 2d 164, 187 (D.D.C. 2012) (describing Evans). The

Evans court held in 2007 that the D.C. Mental Retardation and Developmental Disabilities

Administration (MRDDA) had seriously and continuously failed to comply with court orders


                                                23
regarding health, safety, and welfare of disabled persons at Forest Haven. Evans v. Fenty, 480 F.

Supp. 2d 280, 298, 325 (D.D.C. 2007). The plaintiff in Harvey v. Mohammed established the

existence of a D.C. policy of disregard for the medical needs of disabled individuals by relying

on the Evans case. 841 F. Supp. 2d at 187. However, the Harvey plaintiff had been an Evans

class member. Id.

               MRDDA no longer exists; it has been replaced by the Department on Disability

Services (DDS). See Evans v. Fenty, 701 F. Supp. 2d 126, 137-38 (D.D.C. 2010). The new

policies of DDS have been found to have brought the District into compliance with three parts of

the nine areas specified by the Evans consent orders: staff training, safeguarding personal

possessions, and adequate budget. See Evans v. Gray, Civil No. 76-293(ESH), 2012 WL

5305790, at *1 (Oct. 26, 2012). Ms. Colbert does not allege any new facts since 2012 that would

alter the Evans findings.

               Critically, Ms. Colbert’s reliance on the Evans consent orders does not provide a

factual basis for the allegation that the District of Columbia had a custom or policy that affected

KC in 2010. She has not alleged facts showing that KC was a member of the Evans class. She

has not alleged that, during the relevant time period, DDS had the same policies of indifference

to medical needs that MRDDA had. Accordingly, due to the failure to allege the requisite

custom or policy under Monell, Count VI will be dismissed without prejudice.

       E. Punitive Damages

               Count XI of the Complaint claims punitive damages against the District, which

has moved to dismiss because it is immune from punitive damages unless extraordinary

circumstances exist, see Daskalea v. District of Columbia, 227 F.3d 433, 447 (D.C. Cir. 2000),

which are not alleged here. Ms. Colbert has not responded. See Hopkins v. Women’s Div., Gen.



                                                 24
Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this

Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded.”), aff'd, 98 F. App’x 8 (D.C. Cir. 2004). Count XI will be dismissed

against the District; it remains against Total Care.

       F. Supplemental Jurisdiction

               Each of Ms. Colbert’s remaining claims alleges violations of D.C. law, and the

Court maintains only supplemental jurisdiction over such claims. See 28 U.S.C. § 1367(c).

However, if the Court dismisses the federal law claims in this case over which it has original

jurisdiction, the Court may decline supplemental jurisdiction under § 1367(c). 28 U.S.C. §

1367(c)(3); Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005). The decision whether

to exercise supplemental jurisdiction after dismissal of all federal claims is “purely

discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009). In

exercising such discretion, district courts consider judicial economy, convenience, comity, and

fairness. Shekoyan, 409 F.3d at 424. In the usual case, these factors point toward declining

jurisdiction. Id. (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.” United Mine Workers v.

Gibbs, 383 U.S. 715, 726 (1966).

               Because the Court will dismiss without prejudice Count VI, the only federal law

claim in this case and will grant Ms. Colbert the opportunity to amend the Complaint, the Court

cannot determine at this juncture whether it will elect to exercise supplemental jurisdiction over

the remaining D.C. law claims. The District’s motion to dismiss or for summary judgment with

regard to the D.C. law claims will be denied without prejudice.
                                                 25
                                       IV. CONCLUSION

               For the reasons set forth above, the motion to dismiss or for summary judgment

filed by the District of Columbia [Dkt. 9] will be granted in part and denied in part. Count VI

(Fifth Amendment claim) will be dismissed without prejudice; Count XI (punitive damages

claim) will be dismissed as to the District of Columbia with prejudice. The District of

Columbia’s motion will be denied without prejudice as to the D.C. law claims. Ms. Colbert will

have a reasonable period of time to file an amended complaint; if she fails to timely file, the

dismissal of Count VI shall be deemed with prejudice. A memorializing Order accompanies this

Opinion.



Date: December 13, 2013                                             /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




                                                 26
